by auctioneer; Van Brocklin v. Tennessee, 117 U. S. 156, 29 L. 847, 6 S. Ct. 673, land owned by national government is not subject to State taxation; Day v. Buffington, 3 Cliff. 395, F. C. 3,675, where court holds United States, under its revenue laws, has no power to impose a tax on the salary of a State judge; In re Sheffield, 64 Fed. 836, where a tax on the right to vend a patent right was held illegal; Grether v. Wright, 75 Fed. 754, 43 U. S. App. 770, where Congress lawfully directs the issue of evidence of indebtedness in the exercise of power derived from the Constitution, such evidences of debt are exempt from State taxation; National Commercial Bank v. Mayor, 62 Ala. 292, 34 Am. Rep. 18, Sumter County v. National Bank, 62 Ala. 468, 34 Am. Rep. 32, the assessment by municipal corporation of tax upon shares of national bank in gross, or upon capital stock, is void; Maguire v. Board, 71 Ala. 420, a tax on capital stock of bank whose capital is invested in government securities is illegal; to same effect, Mutual Life Ins. Co. v. Haight, 34 N. J. L. 130, tax on capital stock of insurance company; State v. Stonewall Ins. Co., 89 Ala. 338, 7 So. 754, holding under a law imposing tax on capital stock of private corporations, a corporation is entitled to deduct the amount of its stock invested in non-taxable State bonds; Linton v. Childs, 105 Ga. 572, 32 S. E. 619, holding an act imposing a tax on bank presidents inoperative as to presidents of national banks; Whitney v. City of Madison, 23 Ind. 338, and Wright v. Stilz, 27 Ind. 341, a stockholder in a bank, the entire capital of which is invested in government bonds, cannot be taxed on his shares; State v. Garton, 32 Ind. 4, 2 Am. Rep. 317, holding validity of sheriff's official bond is not affected by failure to affix a United States revenue stamp; German Savings Bank v. Burlington, 54 Iowa, 611. 612, 7 N. W. 106, and St. Louis Savings Assn. v. Lightner, 42 Mo. 425, capital of savings bank to the extent it is invested in government bonds is non-taxable; State v. Central Savings Bank, 67 Md. 299, 11 Atl. 358, holding, under law subjecting deposits in savings bank to taxation, deposits which are invested in property which is already being taxed are not subject to the law; Fifield v. Close, 15 Mich. 508, holding so much of Federal revenue law as requires process in State courts to be stamped, as condition to validity of legal proceedings, is void; State v. Rogers, 79 Mo. 291, where capital of private bank being invested in United States bonds was held not liable to State taxation; dissenting opinion in Western Union Co. v. Fremont, 39 Neb. 711, 58 N. W. 421, 26 L. R. A. 704, the majority sustaining the validity of a municipal ordinance imposing a license tax on telegraph companies; Opinion of Justices, 53 N. H. 638, holding an act imposing a tax on incomes would be invalid as to income derived from national securities; State v. Haight, 31 N. J. L. 409, holding shares of stock in bank whose capital is invested in national securities are subject to State taxation only with sanction of Congress; People v. Com

missioners, 90 N. Y. 66, holding an assessment on the premium on United States bonds illegal and invalid; Andrews et al. v. Auditor, 28 Gratt. 121, 125, holding States cannot tax personal property of the United States, as buildings placed temporarily on leased ground.

Cited, arguendo, in San Francisco v. Spring Valley Co., 63 Cal. 527, 533, without special application, also Hubbard v. Supervisors, 23 Iowa, 144, and Smith v. Webb, 11 Minn. 512. Approved, arguendo, in People v. Supervisors, 51 N. Y. 404, People v. Supervisors, 67 N. Y. 113, 23 Am. Rep. 95, and People v. Barker, 139 N. Y. 64, 34 N. E. 725, in discussion as to whether patents issued by the United States may be taxed. Cited, arguendo, in Caldwell v. Wilson, 121 N. C. 479, 28 S. E. 564, the constitutionality of an act is to be determined by its effect rather than by the intent of the legislature; Pittsburg v. Nat. Bank, 55 Pa. St. 50, where a tax imposed on national banks, not being within terms of act of Congress of 1864, was held void; dissenting opinion, Vermont, etc., Ry. Co. v. Central Ry. Co., 63 Vt. 32, 21 Atl. 733, the majority upholding the constitutionality of an act imposing a tax on the gross receipts of railroad companies. See extended monographic note reviewing authorities, 96 Am. Dec. 291.

Distinguished in Provident Institution v. Massachusetts, 6 Wall. 629, 18 L. 913, where a statute was held valid which imposed on savings institutions a tax, on account of depositors, of a certain per cent. on amount of deposits, and fact that part of deposits was invested in national securities did not affect law; Palmer v. McMahon, 133 U. S. 666, 33 L. 775, 10 S. Ct. 326, but shares of bank stock, even if its capital is so invested, may be taxed; Stetson v. Bangor, 56 Me. 279, where State tax assessed on shares in national bank was declared constitutional; State v. First Nat. Bank, 4 Nev. 355, and Utica v. Churchill, 33 N. Y. 239, 240, 242, on statutory grounds, the act permitting States to tax national banks being under consideration, also People v. Commissioners, 35 N. Y. 426, and Frazer v. Seibern, 16 Ohio St. 622, all holding act valid which imposed tax on national bank shares of stock; Monroe Savings Bank v. Rochester, 37 N. Y. 367, a tax upon the franchise of a corporation is not void because it has privilege of investing its capital in United States bonds.

Miscellaneous.— Erroneously cited in Pullan v. Kinsinger, 2 Abb. 112, F. C. 11,463.

2 Wall. 210-217, 17 L. 783, FLORENTINE v. BARTON. Executors and administrators.- A proceeding to obtain an order of court to sell real property belonging to a decedent's estate, is a proceeding in rem, p. 216.

Cited to this effect in similar case, Elliott v. Shuler, 50 Fed. 456, and McLaurin v. Rion, 24 8. C. 411.

Executors and administrators.- Order of sale of real property of deceased debtor by court of competent jurisdiction carries presumption that all necessary steps to justify order or decree were complied with, p. 216.

The following citing cases affirm and apply this principle: Comstock v. Crawford, 3 Wall. 406, 18 L. 38, and Foxworth v. White, 72 Ala. 230, holding, in collateral attack on sale of real property to satisfy debts of intestate, it will be presumed court which ordered sale found there was insufficient personalty to pay debts; Cooper v. Reynolds, 10 Wall. 316, 19 L. 932, holding, in collateral proceedings, the validity of a judgment cannot be questioned for errors which do not affect the jurisdiction of the court which rendered it; Davis v. Gaines, 104 U. S. 392, 26 L. 760, Garrett v. Boring, 68 Fed. 61, 37 U. S. App. 42, and Graff v. Louis, 71 Fed. 595, 597, order of sale is an adjudication that all facts necessary to give court jurisdiction were found; White v. Crow, 110 U. S. 189, 28 L. 115, 4 S. Ct. 74, holding, when judgment is attacked collaterally, court will make all necessary presumptions to sustain it; Simmons v. Saul, 138 U. S. 455, 34 L. 1061, 11 S. Ct. 374, holding the judgment of a parish court of competent jurisdiction as to who was entitled to be appointed administrator in a particular cause cannot be impeached in collateral proceedings; Noble v. Union River Co., 147 U. S. 174, 37 L. 126, 13 S. Ct. 273, holding the decision of the secretary of interior that a particular railroad is entitled to a right of way over public land, is a final determination so far as the executive department is concerned; In re Lennon, 166 U. S. 553, 41 L. 1112, 17 S. Ct. 660, in a collateral proceeding the jurisdiction of court cannot be attacked by evidence dehors the record; Holmes v. Oregon, etc., Ry. Co., 7 Sawy. 387, 9 Fed. 234, holding an adjudication by a competent court as to right of party to letters of administration is conclusive as to jurisdictional facts; Daily v. Doe, 3 Fed. 915, an admiralty proceeding; Reinach v. Atlantic Co., 58 Fed. 43, affirming that quasi-jurisdictional facts cannot be reviewed in collateral proceedings; Landford v. Dunklin, 71 Ala. 604, order of sale of decedent's land is conclusive proof that petitioner is administrator of estate of decedent, whose land is ordered to be sold; Martin v. Tally, 72 Ala. 29, holding the recital in a decree that a party is guardian is conclusive proof of this fact in a collateral proceeding; Evansville v. Winsor, 148 Ind. 691, 48 N. E. 595, an order directing a foreign will to be filed and recorded, implies the finding of such facts as are necessary to give the court jurisdiction; dissenting opinion, Soule v. Hough, 45 Mich. 423, 8 N. W. 160, the majority holding a foreclosure invalid based on order of publication of summons, the court holding there was not sufficient proof of inability to serve to warrant service by publication; Averill v. Jackson Bank, 114 Mich. 23, 72 N. W. 16, administrator's sale duly confirmed will not be set aside in collateral proceeding because of

irregularity in notice; Peninsular Sav. Bank v. Ward, Mich.-, 79 N. W. 915, applying rulue to tax-sale proceedings; Blanchard v. Webster; 62 N. H. 468, holding such order cannot be attacked in collateral proceeding for fraud; also to same effect, Gusenberry v. Barbour, 31 Gratt. 500, Ryan v. Fergusson, 3 Wash. 368, 28 Pac. 914, holding where community property, part of a decedent's estate, is sold by order of court, it will be presumed court found all necessary facts to sustain its decree.

Cited, arguendo, in Holmes v. Oregon, etc., Ry. Co., 6 Sawy. 285, 5 Fed. 534, without particular application; also, In re McKibben, 16 Fed. Cas. 212, Hays v. McNealy, 16 Fla. 414, and Deans v. Wilcoxon, 25 Fla. 1031, 7 So. 172; M'Namara v. Casserly, 61 Minn. 344, 63 N. W. 884, in discussion of probate procedure in Minnesota; Hudson v. Jurnigan, 39 Tex. 588, any one acting on the faith of judicial acts of Probate Courts over the estates of intestates will be protected.

Distinguished in Emerson v. Ross, 17 Fla. 132, the statute not requiring a petition to obtain right to sell intestate's lands in order to pay his debts, failure to file same and set up necessary jurisdictional facts is immaterial; Sloan v. Sloan, 25 Fla. 66, 5 So. 609, where jurisdiction of court was special and limited; Culver v. Hardenbergh, 37 Minn. 229, 33 N. W. 794, where record showed court had no jurisdiction to make order; also in Washington, etc., Ky. Co. v. Alexandria, etc., Ry. Co., 19 Grátt. 611, 100 Am. Dec. 723, to same effect.

Executors and administrators.- State legislature may constitutionally pass a private act, authorizing a court to decree a private sale of real property of an intestate for purpose of paying his debts, such a law being remedial in character, p. 217.

Cited and principle applied in Hoyt v. Sprague, 12 Fed. Cas. 769, in holding legislature has power to authorize change in investment by trustees; Todd v. Flournoy, 56 Ala. 111, 28 Am. Rep. 764, holding act constitutional, which authorized Probate Court to make partition of real estate devised in trust for benefit of infants; Davis v. Helbig, 27 Md. 463, sustaining validity of private act, empowering County Court to make disposition of decedent's estate in manner different than that designated by him in his will; Railway Co. v. Blythe, 69 Miss. 950, 30 Am. St. Rep. 606, 11 So. 114, 16 L. R. A. 256, and n., holding act valid which permitted guardian to settle with railroad company for damages caused by company's road passing over land of his ward, and fact that no notice was given ward is immaterial; Miles v. King, 5 S. C. 150, holding legislature has power to pass retrospective acts providing they do not impair the obligation of a contract. Cited, arguendo, in Fleming v. Johnson, 26 Ark. 432, holding it. competent for Probate Court to order guardian to sell ward's real estate either at public or private sale; Price v. Winter, 15 Fla. 101. in affirming power of legislature to authorize sale of infant's interest in an estate.

Distinguished in Forster v. Forster, 129 Mass. 566, holding, after decision that a tax sale was void for want of notice, a statute enacting that such sales under certain circumstances should be considered valid, is unconstitutional; Brenham v. Story, 39 Cal. 186, an act authorizing an administrator to sell property belonging to estate of a decedent, except in satisfaction of liens of creditors, is invalid.

2 Wall. 218, 17 L. 755, COOKE v. UNITED STATES.

Appeal and error.- Where amount in controversy is sufficient to give court jurisdiction, and jurisdiction has been acquired by issue and service of writ of error, it cannot be taken away by a subsequent reduction of the sum below amount requisite, p. 218.

Reaffirmed in The Tolchester, 42 Fed. 183, an admiralty cause.

2 Wall. 219-237, 17 L. 788, SMITH v. UNITED STATES.

Principal and surety.- Any unauthorized variation in an agreement to which a surety has subscribed, that may prejudice him, or which may amount to a substitution of a new agreement, will discharge the surety, p. 237.

Cited and rule applied in following cases: United States v. O'Neill, 19 Fed. 571, where bond was signed by two sureties with understanding it would be signed by third named therein, an alteration by the obligee, whereby the name of another party was substituted for such third person, discharges sureties first signing; U. S. Glass Co. v. West Virginia Co., 81 Fed. 995, where the addition of a new condition by interlineation in a contract was held to discharge sureties on bond given for faithful execution of same; First Nat. Bank v. Weidenbeck, 87 Fed. 274, holding where payee of a note procures, without knowledge or consent of maker, a party to guaranty payment of same, this is such a material alteration of the instrument as will discharge the makers; United States v. Freel, 92 Fed. 301, and Carson Opera House Assn. v. Miller, 16 Nev. 338, a surety has a right to stand on the very terms of his contract; United States v. Amer. Bond. etc., Co., 89 Fed. 930, 61 U. S. App. 592, holding government contractors sureties discharged by extension of time of payment; Scott v. State, 46 Ind. 205, holding sureties on county clerk's official bond not liable for funds misappropriated, such funds being money belonging to a ward and deposited with him under order of court, this not being a duty imposed on county clerks by statute; Heim Brewing Co. v. Hazen, 55 Mo. App. 286, the changing of a simple contract to a specialty by adding the word “seal” in a scroll is such an alteration as will release sureties; dissenting opinion, Hale v. Forbis, 3 Mont. 408, the majority holding, in action on note against party who signed as principal, but claimed to be surety, that a showing that the time for payment of note was extended and