Dakota Stock Co. v. Price, 22 Neb. 105, 34 N. W. 101, holding that defendant did not make the kind of delivery that the nature of the property required.

Sale. Vendee is entitled to goods on payment or tender of price, when nothing is said as to time of delivery, or time of payment, p. 483.

Cited and principle applied in Parker v. Pettit, 43 N. J. L. 516, holding that vendee cannot sue for non-delivery of goods, unless price has been paid or tendered, if no period of credit has been agreed upon.

Sale. When terms of sale are agreed on, and seller has completed his part, the contract becomes absolute as between the parties, without payment or delivery; contract for sale of logs here involved, held a present executed sale passing the title, since the scaling of the logs, which yet remained to be done, was not vendor's duty, but that of a boom-master, acting for both parties, pp. 483-484. Cited and relied upon in Tome v. Dubois, 6 Wall. 554, 18 L. 946, holding that conversion of personal property does not deprive owner of power of selling it; Hatch v. Oil Co., 100 U. S. 128, 25 L. 555, holding title had passed where staves were piled on land leased to vendee; Audenreid v. Randall, 3 Cliff. 103, F. C. 644, holding that title passed without delivery; Dillard v. Paton, 19 Fed. 623, where cotton had been weighed, and buyer had attached his shipping marks, and given directions for its removal, title passed, though there had been no payment; Welch v. Spies, 103 Iowa, 392, 72 N. W. 549, holding that title to the corn remaining intact in one crib, passed; Farmers' P. Co. v. Gill, 69 Md. 548, 9 Am. St. Rep. 447. 16 Atl. 217, 1 L. R. A. 770, and n., holding sale was not made conditional by stipulations that cargo be weighed, and its quality ascertained in Baltimore; Hobbs v. Carr, 127 Mass. 533, holding title to all of the goods had passed, though only a part had been delivered; Bass v. Walsh, 39 Mo. 199, where vendor gave a ticket describing number of bales, and authorizing their removal as soon as weighed, held, there was a delivery, though hay had been burned before being weighed; Williams v. Gray, 39 Mo. 204, and Commonwealth v. Hess, 148 Pa. St. 106, 33 Am. St. Rep. 815, 23 Atl. 979, 17 L. R. A. 182, and n., holding like main case; Brock v. O'Donnell, 45 N. J. L. 443, holding that it was an executory contract, and not a bargain and sale; Marvin Safe Co. v. Norton, 48 N. J. L. 415, 57 Am. Rep. 568, 7 Atl. 420, holding that title passed to vendee upon the delivery to carrier; Kerr v. Henderson, 62 N. J. L. 727, 42 Atl. 1074, holding that acceptance of offer of purchaser, accompanied by a statement that vendor will be ready for purchaser to take the property on a specific day, upon payment of the price, is not at present rate; Bradley v. Wheeler, 44 N. Y. 502, holding simple computation to ascertain consideration, remaining undone, will not

prevent passing of title. Cited in 49 Am. Dec. 325, note on delivery and acceptance to take verbal sale of goods out of the statute of frauds, collecting authorities, and 22 Am. St. Rep. 866, note on who must bear loss where property sold is not paid for, collecting cases.

1 Black, 484-488, 17 L. 225, UNITED STATES v. JACKALOW. Criminal law. Crimes against the laws of the United States shall be tried in State where committed, or if committed without a State, at such place as Congress may designate, p. 486.

Cited and relied upon in Cook v. United States, 138 U. S. 183, 34 L. 913, 11 S. Ct. 275, holding that above provision of the Constitution imposes no restriction as to place of trial; Ex parte Crow Dog, 109 U. S. 560, 27 L. 1032, 3 S. Ct. 398, and United States v. Monte, 3 N. Mex. 125, 3 Pac. 47, holding that District Court of Dakota has jurisdiction of Federal offense committed upon Sioux reservation within the limits of the territory; United States v. Peterson, 64 Fed. 147, holding District Court of Wisconsin has no jurisdiction of assault committed on Lake Huron within Michigan; dissenting opinion, United States v. Rodgers, 150 U. S. 283, 37 L. 1083, 14 S. Ct. 122, majority holding Federal courts have jurisdiction of crime committed on vessel belonging to citizen of United States, lying in Detroit river, within Canada.

Criminal law. Congress can prescribe the punishment of offenses committed on high seas or tide waters, although within a State, p. 487.

Cited, without particular application, in Steamboat Belfast v. Boon, 41 Ala. 66.

Criminal law.- Boundary of State, when a material fact in determining jurisdiction over crime committed, is a question for the jury, under proper instructions, p. 487.

Cited and principle applied in United States v. Anderson, 17 Blatchf. 239, F. C. 14,448, holding indictment bad for alleging that place was out of the jurisdiction of any State; Commonwealth v. Clancy, 154 Mass. 133, 27 N. E. 1002, holding complaint charging that offense was committed "within the judicial district of said court" to give jurisdiction; Mahler v. Transp. Co., 35 N. Y. 358, holding jurisdiction of State extends from shore to shore of waters wholly within it. Cited as an illustration of where distances on sea, were measured as land miles, in Rockland Steamboat Co. v. Fessenden, 79 Me. 149, 8 Atl. 552.

Distinguished in State v. Wagner, 61 Me. 185, where courts have previously exercised jurisdiction over the locality, the question of jurisdiction is one of law.

Criminal law. Special verdict, failing to find whether place of crime was out of the jurisdiction of the State, is insufficient, and will be set aside, and new trial ordered, p. 487.

Cited and principle applied in Ex parte Ballinger, 5 Hughes, 390, 88 Fed. 783, holding piracy is cognizable in Federal court only when committed without the criminal jurisdiction of State courts.

1 Black, 488-490, 17 L. 80, UNITED STATES v. KNIGHT.

Appeal and error.— - Supreme Court, in chancery appeals, cannot look beyond the record as transmitted from the inferior court, but defeated party, upon discovery of new evidence, may obtain leave of Supreme Court to file bill of review in court below, to review Supreme Court's final decree, p. 489.

Cited and principle applied in Kingsbury v. Buckner, 134 U. S. 672, 33 L. 1056, 10 S. Ct. 645, holding that party against whom a decree is rendered by appellate court, cannot impeach it for errors apparent on the record, that do not involve jurisdiction; In re Potts, 166 U. S. 268, 41 L. 996, 17 S. Ct. 522, and Kimberly v. Arms, 40 Fed. 554, when decree of Circuit Court has been remanded, it cannot grant a rehearing without leave of appellate court, for newly-discovered evidence; In re Gamewell Fire-Alarm Tel. Co., 73 Fed. 911, 33 U. S. App. 452, and Nessley v. Ladd, 30 Or. 565, 48 Pac. 421, holding same.

Distinguished in Cleveland v. Quilty, 128 Mass. 579, where appeal was dismissed because party was not entitled to appeal, original decree may be revoked; Gale v. Nickerson, 144 Mass. 418, 11 N. E. 719, holding petition to revise decree of Probate Court, affirmed upon appeal, must be heard in the first instance in Probate Court. Supreme Court, when exercising a special statutory jurisdiction, is governed as to its procedure and powers by such statute, p. 489. Cited in dissenting opinion, In re Jessup, 81 Cal. 486, 22 Pac. 1036, majority holding that court derives its power from the Constitution. and the legislature can neither abridge nor enlarge it.

Public lands.- After reviewing and affirming judgment rejecting a Mexican title in California, Supreme Court may not open its judgment or grant bill of review upon affidavit of newly-discovered evidence, p. 489.

Supreme Court,- Rehearing will be granted upon judgment rendered at same term, if any one of the judges concurring in the decision sees cause to doubt its correctness on the record before the court, p. 490.

Reaffirmed in Public Schools v. Walker, 9 Wall. 604, 19 L. 650. Cited and principle applied in Steines v. Franklin Co., 14 Wall. 22. 20 L. 848, holding decision of highest court of State, upon motion for rehearing, is not re-examinable; Brooks v. Railroad Co., 102 U. S. 108, 26 L. 92, holding that petition for a rehearing cannot be filed after term at which judgment was rendered; Amer. D. R. Boring Co. v. Sheldon, 18 Blatchf. 50, 1 Fed. 870, refusing to grant a

rehearing, as of course, on certificate of two counsel; Roberts v. Haggart, 4 Dak. 212, 29 N. W. 657, refusing to grant a rehearing after final judgment and adjournment of term; Winchester v. Winchester, 121 Mass. 130, holding petition for rehearing will not be granted, unless the court, upon inspection, so orders; Woodbury v. Dorman, 15 Minn. 342, denying motion for reargument.

1 Black, 491-493, 17 L. 106, FLANIGAN v. TURNER.

Estoppel.- Party claiming funds, the proceeds of vessel sold to pay repairs. as belonging to him alone, cannot, in a subsequent suit, deny his ownership, p. 493.

Cited and principle applied in Brewer v. Nash, 16 R. I. 461, 27 Am. St. Rep. 751, 17 Atl. 858, where after a defective exercise of a power of sale, mortgagors receive the proceeds, and after learning of defects in sale, continue to keep them, they are estopped from denying the purchaser's title; Humpfner v. Osborne, 2 S. Dak. 324, 50 N. W. 93, if party set up defense that note was paid by foreclosure of mortgage, he is estopped from asserting that foreclosure was invalid.

1 Black, 494-501, 17 L. 155, THE WATER WITCH.

Admiralty. Circuit Court decree, affirming decree below, on libel in admiralty, for more than District Court awarded, is valid, though there was no cross-appeal, where the addition is apparent only, beneficial to appellants, and makes direction for a set-off, pp. 499, 500.

Shipping.- Parties suing for damages to cargo may not split up the claim for damages by applying a portion in extinguishing freight money, and asking decree for excess, p. 500.

Reaffirmed in The Bark Ethel, 5 Ben. 161, F. C. 4,540.

Shipping. Carrier is estopped to deny his liability to deliver goods in like good order as received, though he did not sign bills of lading, where he received, and carried, and then libelled cargo for freight, p. 500.

Cited and principle applied in The T. A. Goddard, 12 Fed. 184, and The Euripides, 52 Fed. 163, holding carrier by water is liable for safe transportation of goods independent of any bill of lading; Jacobs v. Miller, 50 Mich. 127, 15 N. W. 45, holding claimant under a deed confirms all its provisions, and cannot adopt only those favoring him; Hatch v. Tucker, 12 R. I. 505, 34 Am. Rep. 710, holding consignee liable for freight, though master refused to sign bill of iading.

Appeal and error.- Two courts, having decided a question of fact as to fault of master of vessel for injury to freight, the same

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way, Supreme Court ought not to reverse because of difference of opinion as to weight of testimony, p. 500.

Cited and rule applied in The Grace Girdler, 7 Wall. 204, 19 L. 117, and The Juniata, 93 U. S. 339, 23 L. 931, refusing to reverse; The Quickstep, 2 Biss. 292, F. C. 11,509, where, in collision case, District Court found both parties at fault, and respondents appealed, Circuit Court cannot inquire as to fault of libellants. Cited in The Oregon, 55 Fed. 673, 6 U. S. App. 581, but the court reviewed the evidence.

Denied in Ayer v. The Steamer Glaucus, 4 Cliff. 168, F. C. 683, holding that facts are open to revision in the Circuit Court.

1 Black, 501-503, 17 L. 227, WHITE'S ADMINISTRATOR v. UNITED STATES.

Mandamus to compel judge of District Court to permit claimant to intervene in suit sent back by Supreme Court, refused, pp. 501-503.

No citations.

1 Black, 503-506, 17 L. 134, EX PARTE GORDON.

Supreme Court.- Judgment of Circuit Court in criminal case cannot be revised or controlled by Supreme Court, by writ of error or prohibition, or by certiorari, pp. 504–505.

Cited and principle applied in United States v. Embolt, 105 U. S. 416, 26 L. 1078, holding that information for a forfeiture under revenue laws cannot be brought from Circuit Court by appeal; United States v. Sanges, 144 U. S. 319, 36 L. 449, 12 S. Ct. 612. holding that a writ of error does not lie in behalf of the United States in a criminal case; United States v. Williams, 67 Fed. 385, 32 U. S. App. 126, query, whether power of Circuit Court of Appeals to issue writs of prohibition, extends to any cases except to enforce its particular jurisdiction; United States v. Plumer, 3 Cliff. 27, F. C. 16,055, holding that writ of error does not lie from Supreme Court to Circuit Court in a criminal case; dissenting opinion, Ex parte Lange, 18 Wall. 185, 21 L. 882, majority holding where prisoner shows he is held under an unauthorized judgment of Federal court, the Supreme Court will, by writs of habeas corpus and certiorari, look into the record; Sparf v. United States, 156 U. S. 176. 39 L. 387, 15 S. Ct. 321, without particular application. Cited in United States v. McElroy, 2 Mont. 496, construing act allowing appeals; American Const. Co. v. Jacksonville Ry., 148 U. S. 380, 37 L. 490. 13 S. Ct. 762, discussing nature of writ of certiorari.

Distinguished in Bryan v. Bates, 12 Allen, 209, holding that writ of error allowed by Supreme Court, in a criminal case in which final judgment has been given by State court, operates as a supersedeas.