I WALLACE.

1 Wall. 5-16. 17 L. 515, CROSS v. DEVALLE.

Alien may take by deed or devise and hold against anyone but the sovereign until office found, and this rule is not affected by the Rhode Island statute prescribing conditions upon which aliens may hold against the State, p. 13.

Cited and relied upon as follows: Osterman v. Baldwin, 6 Wall. 122, 18 L. 732, holding citizen of United States who was incompetent to hold land in Texas before admission, became so upon admission, no office having been previously found; Billings v. Aspen Mining, etc., Co., 51 Fed. 342, 10 U. S. App. 1, holding alien may sue to cancel deed made by hif to third person; Bogan v. Edinburgh, etc., Mortgage Co., 63 Fed. 197, 198, 27 U. S. App. 346, holding where allen has entered on public land and certificate has been issued, he cannot, after naturalization, be dispossessed; Quigley v. Birdseye, 11 Mont. 446, 28 Pac. 743, holding alien may acquire and hold title to ditch and water right until office found; Lenehan v. Spaulding, 57 Vt. 122, defendant, in suit by alien's heir, cannot set up alienage of intestate. Cited in discussion, obiter, in Fritts v. Palmer, 132 U. S. 293, 33 L. 321, 10 S. Ct. 96, Wunderle v. Wunderle, 144 Ill. 64, 33 N. E. 200, 19 L. R. A. 88, and Oregon Mortgage Co. v. Carstens, 16 Wash. 170, 47 Pac, 423, 35 L. R. A. 843.

Distinguished in Wulf v. Manuel, 9 Mont. 284, 23 Pac. 725, under act of Congress relating to mineral lands.

Equity.- Cross-bill is an auxiliary bill, dependent upon the original suit, and can touch only matters therein involved, p. 14.

The citations collect the following cases, which indorse and rely upon this ruling: Rubber Co. v. Goodyear, 9 Wall. 809, 19 L. 589, holding, in suit for infringement of patent, defendant cannot set up by cross-bill a judgment in another suit against one complainant; Ex parte Railroad Co., 95 U. S. 225, 24 L. 356, holding decision on cross-bill is not final decree from which appeal will lie; Railway Co. v. United States, 101 U. S. 641, 25 L. 1075, holding decree in favor of United States against railway company cannot be offset by claim, in hands of latter's successor, which did not arise out of such decree; Donohoe v. Mariposa Land Co., 5 Sawy. 172, F. C. 3,989, and Schenck v. Peay, Woolw. 184, F. C. 12,450, holding filing of crossbill against co-defendant, who is citizen of same State, cannot defeat right of removal; First Nat. Bank v. Salem Flour Mills, 12 Sawy. 490, 31 Fed. 583, holding prior mortgagee is proper party to

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U. S. Notes 1 Wallace, 17 L. ed. 718-92 p.

ANN

bill to foreclose mortgage, and may file cross-bill to have lien of his mortgage enforced first; Weaver v. Alter, 3 Woods, 154, F. C. 17,308, holding defendant cannot file cross-bill against co-defendant embracing matters of account, in which complainant has no interest; Vannerson v. Leverett, 31 Fed. 377, holding co-defendants cannot litigate disputes inter sese by cross-bill; Southwestern Transp. Co. v. Pittsburg Coal Co., 42 Fed. 921, holding in suit for salvage by crew and owner of tug, counterclaim alleging that tug contributed to original peril is not proper subject for cross-libel; Johnson, etc., Signal Co. v. Union, etc., Signal Co., 43 Fed. 331, holding in suit for infringement of patent, defendant cannot by cross-bill claim protection for trademark; Stonemetz, etc., Co. v. Brown, etc., Co., 46 Fed. 852, holding in such suit defendant cannot file cross-bill setting up infringement of his patent by complainant; Mexican Ore Co. v. Mexican, etc., Mining Co., 47 Fed. 356, holding cross-bill cannot introduce new parties; Fidelity Trust, etc., Co. v. Mobile Ry., 53 Fed. 852, petition to recover for maladministration of trust cannot be filed as cross-bill to suit to foreclose trust deed; Industrial, etc., Guaranty Co. v. Electrical Supply Co., 58 Fed. 742, 16 U. S. App. 196, dismissing bill which introduced new controversy; Stuart v. Hayden, 72 Fed. 410, 36 U. S. App. 462, and Dickerman v. Northern Trust Co., 80 Fed. 458, 53 U. S. App. 283, both holding in suit to recover on stock, defendant cannot file cross-bill to rescind transfer on ground of fraud; Goff v. Kelly, 74 Fed. 330, holding creditor whose claim has not been reduced to judgment cannot intervene and file cross-bill in suit between another person and assignee to establish partnership in part of assigned property; Barnard v. Hartford, etc., Co., 2 Fed. Cas. 836, holding, where cross-bill sets up additional facts but does not introduce distinct and separate questions, dismissal of original bill does not dismiss cross-bill; Randolph v. Robinson, 20 Fed. Cas. 262, holding defendant in suit for infringement of patent cannot file cross-bill seeking to set aside fraudulent transfer of property; Ledwith v. Jacksonville, 32 Fla. 14, 13 So. 458, holding, where complainant has been given decree relying on city ordinance, defendant cannot file cross-bill relying on subsequent repeal of such ordinance; Hunter v. McLaughlin, 43 Ind. 50, and Standley v. Northwestern Ins. Co., 95 Ind. 261, both holding in action on one contract cross-complaint cannot be filed based on another; Chappell v. Chappell, 86 Md. 545, 39 Atl. 989, holding filing of cross-bill against party who is non-resident cannot give right of removal; McGuire v. Circuit Judge, 69 Mich. 595, 37 N. W. 569. where bill is filed by person in possession of land for equitable relief, cross-bill will not lie to obtain possession; Gilmer v. Felhour, 45 Miss. 631, where relief asked in original bill is equitable, crossbill cannot set up legal defense; Kirkpatrick v. Corning, 39 N. J. Eq. 141, and Krueger v. Ferry, 41 N. J. Eq. 436, 5 Atl. 455, both denying leave to file cross-bill not stating matters of defense; Allen

v. Fury, 53 N. J. Eq. 36, 30 Atl. 551, holding, in suit to cancel stock, defendant cannot file bill alleging depreciation in value of stock was fault of complainant; Comfort v. McTeer, 7 Lea, 662, in suit for recovery for overdrafts defendant cannot file bill alleging conversion of bonds; McMullen v. Eagan, 21 W. Va. 247, taxpayer cannot set off sheriff's personal indebtedness to him against taxes due State.

Cited also in valuable note on this subject in 83 Am. Dec. 251, 253. Cited in discussion, obiter, in Neal v. Foster, 13 Sawy. 240, 34 Fed. 498, Bound v. South Carolina Ry., 47 Fed. 33, Springfield, etc., Co. v. Barnard, etc., Co., 81 Fed. 263, 264 49 U. S. App. 445, Ray v. Home, etc., Agency Co., 106 Ga. 496, 32 S. E. 605, Kemp v. Mitchell, 36 Ind. 256, dissenting opinion in Summers v. Hutson, 48 Ind. 233, and Commissioners v. Lafayette, etc., R. R., 50 Ind. 102.

Distinguished in Blythe v. Hinckley, 84 Fed. 235, and Carroll v. Taylor, 52 S. W. 139 (Tenn.), both holding if complete and final determination of suit may be had upon cross-bill, final decree may be entered thereon.

Equity may interfere to protect future rights if the expectant parties are represented in court by trustees or executors, p. 15.

Cited and relied upon in McArthur v. Scott, 113 U. S. 402, 28 L. 1035, 5 S. Ct. 673, holding equity may interfere to protect rights of possible heirs in estate in hands of trustee.

Equity cannot decree in thesi, as to the future rights of parties not before the court or in esse, p. 16.

Cited and followed in May v. May, 167 U. S. 323, 42 L. 185, 17 S. Ct. 829, refusing, in suit for removal of trustee, to determine question as to who shall take estate after death of cestuis que trust; Taylor v. Fisk, 94 Fed. 243, holding equity cannot entertain suit to determine validity of limitation over in deed after death of grantee while grantee is alive; Bowditch v. Soltyk, 99 Mass. 139, refusing to determine testator's right to dispose of property by will, in case where question not material; Gordon v. Green, 113 Mass. 260, refusing to allow removal to Federal court in order to protect rights of non-residents not parties to suit.

Distinguished in Davis v. Wakelee, 156 U. S. 686, 39 L. 583, 15 S. Ct. 557, holding party may be enjoined from setting up a threatened defense in future action at law.

Miscellaneous.- Cited in Seckel v. Backhaus, 7 Biss. 356, F. C. 12,599, but application doubtful; also in Blythe Co. v. Blythe, 172 U. S. 644, 19 S. Ct. 873, dismissing case for want of jurisdiction.

1 Wall. 16-22, 17 L. 555, WRIGHT v. ELLISON.

Principal and agent.- Power of attorney given in general terms is to be restricted by the evident intention of the parties thereto; accordingly a power to prosecute a claim was confined, under the VOL. VI-18

circumstances, to the Brazilian courts, notwithstanding the generality of the language, p. 21.

Equity. To create an equitable lien on a fund, there must be a distinct appropriation of the fund by the debtor and an agreement that the creditor should be paid out of it, p. 22.

Cited and principle followed in Trist v. Child, 21 Wall. 447, 22 L. 624, holding mere personal agreement to pay another certain percentage of claim set up against government does not create lien thereon; Peugh v. Porter, 112 U. S. 742, 28 L. 860, 5 S. Ct. 364, holding instrument by which person assigns to another his interest in claim against foreign government is good in equity, although made before claim filed; Porter v. White, 127 U. S. 245, 32 L. 116, 8 S. Ct. 1223, holding mere substitution of person authorized to act in prosecuting claim against foreign government gives him no lien thereon; Sullivan v. Portland, etc., R. R., 4 Cliff. 225, F. C. 13,596, promise to pay stockholders 10 per cent. interest on stock, unsecured by collateral, does not create lien; Dowell v. Cardwell, 4 Sawy. 227, F. C. 4,039, transfer of claim against foreign government, absolute on face, although provable to have been only for collection, gives agent lien for commission; Dillon v. Barnard, 1 Holmes, 393, F. C. 3,915, building road under contract does not give lien on fund rising from sale of bonds, issued for purpose of building and equipping, unless specified in contract; The Elmbank, 72 Fed. 615, enforcing claim under assignment of salvage money to be recovered; Badgerow v. Manhattan Trust Co., 74 Fed. 926, holding agreement entitling person to certain number of bonds gives no lien if bonds not specified; Central Nat. Bank v. Spratlen, 7 Colo. App. 434, 43 Pac. 1049, order to pay out of specified fund creates lien; Story v. Hull, 143 Ill. 512, 32 N. E. 267, attorney has no lien on judgment, in Illinois, in absence of express contract; and Stewart v. Flowers, 44 Miss. 531, 7 Am. Rep. 721, is to same effect, there having been no agreement as to fees and attorney hav ing abandoned case before judgment; Sykes v. First Nat. Bank, 2 S. Dak. 256, 49 N. W. 1062, enforcing agreement to set aside certain part of money realized from claim, as paid; Lane v. Magdeburg, 81 Wis. 349, 51 N. W. 564, holding order by vendor of goods to vendee to send purchase money to original vendor is not assignment which will give original vendor rights as against receiver appointed before money received by former. See also note 36 Am. St. Rep. 415, on subject of attorney's lien for fees. Cited, arguendo, in Goff v. Kelly, 74 Fed. 331, James v. Newton, 142 Mass. 377, 56 Am. Rep. 699, 8 N. E. 127, and Frost v. Atwood, 73 Mich. 73, 16 Am. St. Rep. 563, 41 N. W. 98.

Miscellaneous. Cited in Childs v. N. B. Carlstein Co., 76 Fed. 95, on point that equity will not afford relief where there is plain and adequate remedy at law.