393, 17 L. 567, holding valid, municipal bonds payable to bearer in hands of innocent holders for value; Salt Co. v. East Saginaw, 13 Wall. 376, 20 L. 613, holding that law was a bounty law, and not a contract; Tomlinson v. Jessup, 15 Wall. 458, 21 L. 206, and Hewitt v. Railroad Co., 12 Blatchf. 465, F. C. 6,443, holding that immunity from taxation was, by the reservation of power, subject to be revoked; Humphrey v. Pegues, 16 Wall. 249, 21 L. 327, and Oliver v. Railroad, 30 Ark. 130, holding that legislature could not repeal statute exempting corporation from taxation; Poindexter v. Greenhow, 114 U. S. 287, 29 L. 191, 5 S. Ct. 912, holding State statute forbidding receipt of coupons for taxes, is a violation of the contract, and void; Pearsall v. Great Nor. Ry., 161 U. S. 662, 40 L. 848, 16 S. Ct. 709, where railway is given power to consolidate, it may be forbidden by subsequent act to consolidate with parallel lines; Grand Lodge v. New Orleans, 166 U. S. 146, 41 L. 952, 17 S. Ct. 524, holding that act exempting lodge from taxation was a mere offer of bounty, and could be withdrawn; Georgia v. Atkins, 1 Abb. 25, 35 Ga. 317, F. C. 5,350, holding that Circuit Court can enjoin collection of a tax not authorized by Congress; United States v. Jefferson Co., 5 Dill. 316, 1 McCrary, 362, F. C. 15.472, holding that County Court could be compelled by mandamus to levy tax to pay interest on bonds; Sala v. New Orleans, 2 Woods, 194, F. C. 12,246, holding statute imposing onerous conditions upon issue of bonds by city, to pay for water-works, impaired the obligation of the contract with the bank; Cutting v. Gilbert, 5 Blatchf. 263, F. C. 3,519, holding that imposition of an illegal tax can be enjoined; Gray v. Davis, 1 Woods, 423, 424, F. C. 5,715, holding act, whereby a "ailroad was incorporated, and a grant of land made on certain conditions, is a contract; Broadbent v. S. & Art Assn., 45 Ala. 172, and Boyd v. State, 46 Ala. 334, holding lottery authorized by charter lawful, notwithstanding law against them; Tuskaloosa S. & Art. Assn. v. Green, 48 Ala. 351, holding unconstitutional, act repealing charter; Jacoway v. Denton, 25 Ark. 646, holding that contract cannot be impaired by State Constitution; as also in Ede v. Knight. 93 Cal. 161, 28 Pac. 860, and McNealy v. Gregory, 13 Fla. 448, holding same; Georgia v. Railroad Co., 66 Ga. 567, holding rate of taxation, fixed by contract, cannot be altered by State; First Div. of St. Paul, etc., R. R. Co. v. Parcher, 14 Minn. 326, holding that territory could bind State by grant of exemption from taxation to railroad; Opinion of the Court, 58 N. H. 624, holding that statutory contract of tax exemption cannot be invalidated by decision holding former construction to be erroneous; Langdon v. City of N. Y.. 93 N. Y. 157, holding legislature could not impair easement granted by city without compensation; Nor. Pac. R. R. Co. v. Barnes, 2 N. Dak. 339, 51 N. W. 393, holding that legislature could exempt building and loan associations from operation of usury laws; Knoxville & O. R. R. Co. v. Hicks, 9 Baxt. 445, 446, holding that under

the decree, immunity from taxation passed to the purchasers; Railroad Co. v. Commissioners, 36 Tex. 434, holding invalid, law providing for forfeiture of lands granted to railway, not allenated; Brownsville v. Basse, 36 Tex. 501, declaring that act was in the nature of a public grant conveying a present beneficial interest and was irrepealable. Cited in 72 Am. Dec. 684, note on power of State legislature to grant perpetual immunity from taxation, collecting authorities. Cited to point that making a State officer a party does not make the State a party, although her law may have prompted his action, in Hancock v. Walsh, 3 Woods, 360, F. C. 6,012, holding bill filed against commissioners is not a suit against the State; Lynn v. Polk, 8 Lea, 259, holding bill to enjoin funding board, is not a suit against State, or officers of State; State v. Burke, Treasurer, 33 La. Ann. 504, holding auditor and treasurer have no power to stand in judgment as her agents, when State has expressed her will adversely to such payment; State v. Doyle, Sec. of State, 40 Wis. 213, 214, hoiding that Circuit Court has no jurisdiction of suit by foreign corporation to restrain State officer from revoking license; dissenting opinion, Lowry v. Thompson, 25 S. C. 431, 1 S. E. 152, majority holding that action was really against State, and not maintainable.

Cited also, but without particular application, in Camblos v. Phila., etc., R. R. Co., 4 Fed. Cas. 1106, Grand Lodge of Masons v. New Orleans, 44 La. Ann. 666, 11 So. 151, Dow v. Railroad, 67 N. H. 8, 36 Atl. 534, and West Wis. R. v. Supervisors. 35 Wis. 266. Cited in dissenting opinion, Louisiana v. Jumel, 107 U. S. 760, 27 L. 465, 2 S. Ct. 169, majority holding that courts cannot interfere with money held by State officers, and thus oust the political power of the State; Chenango B. Co. v. B. B. Co., 27 N. Y. 110, 113, majority holding there was no undertaking by the sheriff not to sanction other bridges.

Distinguished in Shelby County v. Union, etc., Bank, 161 U. S. 156, 40 L. 654, 16 S. Ct. 560, holding clause in bank charter, requiring it to pay a certain per cent. on each share of stock, in lieu of all other taxes, does not forbid a tax on capital stock, surplus, and profits; Minot v. Phila, etc., R. R. Co., 2 Abb. (U. S.) 337, F. C. 9,645, holding that payment of a bonus for a charter, does not exempt from taxation; and New Orleans v. Railroad Co., 42 La. Ann. 5, 21 Am. St. Rep. 366, 7 So. 59, holding same.

1 Black. 450-459, 17 L. 203, WASHINGTON v. OGDEN.

Vendor and purchaser.- Covenants of vendor to convey, and of purchaser to pay, are concurrent, and not independent, and vendor cannot recover purchase money where he is unable to convey good title. pp. 455, 456.

Distinguished in Loud v. Pomona Land & W. Co., 153 U. S. 579, 38 L. 828, 14 S. Ct. 933, where covenants were independent, and payment was a condition precedent to right of conveyance.

Vendor and purchaser.— Legal effect of a covenant to sell is, that land shall be conveyed from one having good title or power to convey it, p. 456.

Cited and principle applied in McLaughlin v. McAllister, 36 Fed. 746, holding petition failing to aver power to furnish abstract, demurrable; Holland v. Holmes, 14 Fla. 393, in every contract for sale of lands, there is an implied undertaking to make a good title; Cole v. Hynes, 46 Md. 185, to oust court of jurisdiction, it must, affirmatively, appear that defendant has not accepted a deed of the property; Linton v. Allen, 147 Mass. 237, 17 N. E. 527, holding that delivery of a warranty deed, without the giving of a good title, would not satisfy the bond; Ankeny v. Clark, 1 Wash. 557, 20 Pac. 587, holding contract to sell land cannot be satisfied, where vendor has merely an equity.

Pleading. Where vendor suing for purchase money avers only readiness to make a deed and does not aver or prove ability to convey good title thereby, the defect is not cured by verdict, p. 456. Cited in 4 McCrary, 464, note on amendments after verdict, collecting authorities.

Vendor and purchaser.— Stipulation in contract of sale that previous record contract with another party for the same land, should be cancelled, is complied with by proof of verbal understanding that it should be deemed cancelled, p. 458.

Appeal and error.- Pleading and form of action will not be considered, if plaintiff would not be entitled to recover in any form of action, p. 459.

Cited and principle applied in Bean v. Savings Bank, 64 N. H. 352, 10 Atl. 819, holding that party cannot complain of an error which has done him no harm.

1 Black, 459-471, 17 L. 218, McCOOL v. SMITH.

Statutes. Whenever legislature uses a term, well known in the English law, it is to be understood in its known sense, p. 469.

Cited in Case of the Sewing Machine Companies, 18 Wall. 584. 21 L. 922, 12 Am. Rep. 550, note, reaffirming rule; United States v. Trans. Mo. F. Assn., 58 Fed. 67, 19 U. S. App. 36, 24 L. R. A. 82, where Congress adopts a common-law offense, the presumption is that terms were used in their known meaning.

Bastards."Next of kin," at common law, includes only those who are legitimate, unless a different intention is manifest; accordingly, where the only Illinois statute as to descents gave property to next of kin, the common-law rule that a bastard has no heritable blood, must be deemed in force, p. 470.

Cited and principle applied in Pinkston v. Semple, 92 Ala. 568, 9 So. 331, holding, under statutory provision, the father, as

"next

of kin" of his son, may file petition for appointment of trustee; In re Estate of Magee, 63 Cal. 416, construing code as to succession of illegitimates. Cited in 56 Am. Dec. 265, note on right of bastards to inherit, collecting cases.

Distinguished in Hutchinson Inv. Co. v. Caldwell, 152 U. S. 70, 3S L. 358, 14 S. Ct. 506, and Caldwell v. Miller, 44 Kan. 20, 23 Pac. 949, in State whose laws permit illegitimate children, recognized by father, to inherit from him, such children are heirs within the meaning of revised statutes, section 2269; Rogers v. Weller, 5 Biss. 170, F. C. 12,022, holding children in Illinois statute of wills, includes illegitimates; dissenting opinion, In re Jessup, 81 Cal. 438, 21 Pac. 978, where illegitimate child was adopted by the father.

66

Ejectment.-A party can recover in ejectment, only upon a title vested in him at commencement of suit, p. 470.

Cited in Goodman v. Winter, 64 Ala. 437, if, at commencement of suit, plaintiff is enjoined from asserting title, he cannot recover, though injunction be set aside pending suit.

Statutes. Repeal by implication is not favored; if possible, the two acts should be reconciled, pp. 470-471.

Cited and principle applied in Galena v. Amy, 5 Wall. 709, 18 L. 562, Arthur v. Homer, 96 U. S. 140, 24 L. 812, United States v. Taylor, 104 U. S. 218, 26 L. 722, County of Clay v. Society for Savings, 104 U. S. 588, 26 L. 860, Red Rock v. Henry, 106 U. S. 601, 27 L. 253, 1 S.. Ct. 438, Fussell v. Gregg, 113 U. S. 560, 28 L. 997, 5 S. Ct. 637, Cope v. Cope, 137 U. S. 686, 34 L. 833, 11 S. Ct. 223. Frost v. Wenie, 157 U. S. 58, 39 L. 619, 15 S. Ct. 537, United States v. Matthews, 173 U. S. 388, 19 S. Ct. 416, United States v. Cook Co. Nat. Bank, 9 Biss. 60, F. C. 14,853, Cooke v. Ford, 2 Flipp. 32. F. C. 3,173, Dennis v. County of Alachua, 3 Woods, 685, F. C. 3,791, United States v. The Cuba, 2 Hughes, 491, F. C. 14,898, In re McConnell, 9 Nat. Bank. Reg. 394, 15 Fed. Cas. 1300, Met. T. Co. v. Railroad Co., 25 Fed. 762, Nor. Pac. R. Co. v. United States, 36 Fed. 286, Central Trust Co. v. Railway, 48 Fed. 874, 2 U. S. App. 95, Gowen v. Harley, 56 Fed. 979, 12 U. S. App. 574, In re Moore, 66 Fed. 949, The J. D. Peters, 78 Fed. 373, Coats v. Hill, 41 Ark. 151, Doan v. Board of Commrs., 2 Idaho, 788, 26 Pac. 170, State v. Judge of, etc., 32 La. Ann. 724, N. O., etc., R. Co. v. New Orleans, 34 La. Ann. 441, Lane v. Commrs., 6 Mont. 477, 13 Pac. 137, Jobb v. County of Meagher, 20 Mont. 433, 51 Pac. 1037, State v. La Grave, 23 Nev. 379, 48 Pac. 194, Sifred v. Commonwealth, 104 Pa. St. 182, Hurst v. Samuels, 29 S. C. 487, 7 S. E. 826, Hogan v. Guigon, 29 Gratt. 709, Davies v. Creighton, 33 Gratt. 698, Fulkerson v. Bristol, 95 Va. 5, 27 S. E. 817, McConihe v. Guthrie, 21 W. Va. 149, and State v. Bowen, 38 W. Va. 98, 18 S. E. 377, reconciling conflicting statutes, and holding there was no repeal by implication; United States v. Fisher, 109 U. S. 145, 27 L. 886, 3 S. Ct. 155, where

Congress appropriates a sum "in full compensation " of salary, incumbent cannot recover an additional sum, notwithstanding prior statute fixes salary at a larger amount; Bernardin v. Northall, 77 Fed. 852, giving an appeal from commissioner of patents, in interference cases, to Court of Appeals, does not take away jurisdiction of Circuit Courts; Collins v. State, 3 S. Dak. 24, 51 N. W. 778, holding that subsequent repugnant provision in act operates as a repeal of first. Cited also in dissenting opinions, Telegraph Co. v. Eyser, 19 Wall. 432, 22 L. 46, majority holding it unnecessary, that writ be served as required by judiciary writ, to make it a supersedeas; Stryker v. Board of Commrs., 77 Fed. 582, 40 U. S. App. 583, but without particular application.

Ejectment.— Plaintiff cannot recover upon a title acquired since the commencement of this suit, p. 471.

Followed in Litchfield v. Railroad Co., 7 Wall. 272, 19 L. 151 in action of ejectment the judgment should have been that plaintiff has no title.

1 Black, 472-474, 17 L. 161, VERDEN v. COLEMAN.

Supreme Court has jurisdiction, on error to State court, on ground that right claimed under treaty is drawn in question, only where the party claims title under the treaty for himself, and not for a third person in whose title he has no interest, p. 474.

Reaffirmed in Long v. Converse, 91 U. S. 114, 23 L. 235, and Miller v. Lancaster Bank, 106 U. S. 544, 27 L. 290, 1 S. Ct. 538. Cited in Lee v. Kaufman, 3 Hughes, 133, F. C. 8,191, but not especially applied.

1 Black, 474 475, 17 L. 180, FRANKLIN BRANCH BANK v. STATE OF OHIO.

Constitutional law. Sixtieth section of Ohio statute, incorporating the State bank, contains a contract for a fixed rate of taxation, and statute attempting to assess a larger tax, by a different rule, is unconstitutional, p. 475.

Reaffirmed in Wright v. Sill, 2 Black, 545, 17 L. 333. Cited and principle applied in Jacoway v. Denton, 25 Ark. 646, holding that State Constitution cannot impair obligation of contracts for sale of slaves.

1 Black, 476-484, 17 L. 222, LEONARD v. DAVIS.

Sale. Logs floating are in constructive possession of owner, and a symbolical delivery suffices to pass title, p. 48, n.

Cited and principle applied in Audenreid v. Randall, 3 Cliff. 104, F. C. 644, holding, where actual delivery is impracticable or impossible, symbolical delivery will be equivalent in its legal effect;