specification, work on the roadway was included in the regular monthly estimates. And this continued until a new engineer came upon the scene. With him came controversy. He not only introduced a new construction of the contract but so far reversed the construction and action of his predecessor as to deduct in the final settlements the amounts allowed by the latter.

Undoubtedly the contract has ambiguity and to present and resolve the ambiguity in detail would require a precise and literal examination of the contract. Such examination would greatly and, we think, uselessly prolong this opinion. We should be brought nevertheless to a few broad determining considerations.

The contention of the Government is based upon what is said to be the purpose of the contract, which, it is further said, "so far as appellant was concerned [italics counsel's], was the construction of the filtration plant proper." The appellant, in opposition, declares that the contract enumerated three kinds of fills "and all other fills and embankments shown by the plans or directed to be made by the engineer officer in charge." Though some doubts beset appellant's contention and some considerations bear against it, there are others which determine for it. The most important of the considerations against it is the charge by the Government that the contractor was paid for every yard of excavation and that the dirt excavated had to be deposited somewhere and the roadway "was just as convenient a place as any to dispose" of it. And this is given strength by the fact that the contractor had arranged, at a considerable cost, with the Soldiers' Home authorities to dispose of waste material on the grounds of the Soldiers' Home.

But there is the countervailing consideration to which we have adverted, that is, of the action of the engineer first in charge, and it was he who drew the contract. He was there for direction. He considered that the roadway

was part of the scheme. He directed and superintended its construction. And it was a systematic structure, not a mere dumping place or deposit for material. It was constructed upon lines, slopes and grades and of selected materials. Further, in continued manifestation of his judgment that the contract included it and in approval of its conformity to the contract, he directed payment for it. There is nothing which reflects upon the sincerity of his judgment and it is necessarily the important factor in determining the responsibility of the Government.

Whether the roadway was necessary or accessory to the filtration plant is not important to consider. We may observe, however, that it was subsequently finished by the United States, and manifestly deemed desirable.

Judgment reversed and cause remanded with directions to enter judgment for appellant on the findings and in accordance with this opinion.

MR. JUSTICE MCREYNOLDS took no part in the consideration and decision of this case.

DE LA RAMA v. DE LA RAMA.

ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 216. Submitted April 18, 1916.—Decided May 1, 1916.

The rule that local practice, sanctioned by the local courts, should not be disturbed, applied in this case to the union of two causes of action, one of divorce and the other separation of the conjugal property, and both within the jurisdiction of the Court of First Instance of the Philippine Islands.

An objection to the competency of the presiding judge which was not

made in the courts below, and could have been corrected if made in the trial court, cannot be tolerated in this court except under the most peremptory requirements of law.

Due process of law does not forbid a hearing upon a transcript of evidence formerly heard in court; and where, as in this case, the parties assented to the course pursued.

As the evidence is not before this court, and there is nothing in the record to control the opinion of the Supreme Court of the Philippine Islands that the method adopted by the Court of First Instance was substantially in accord with the method prescribed by the Code, this court disallows an attempt to open questions of detail, no clear and important error being shown and the matter being one of local administration.

A discretion is recognized in regard to allowing interest even in matters of tort; and this court will not hold that the court below erred in fixing the date at which, but for the law's delay, the money would have been paid, even though the appellate court did reduce the amount awarded by the trial court.

The review of judgments of this nature of the Supreme Court of the Philippine Islands is by appeal and not by writ of error.

THE facts, which involve the validity of provisions in decree for divorce affecting division of conjugal property made by the Supreme Court of the Philippine Islands, are stated in the opinion.

Mr. Rufus S. Day, Mr. Charles Edmond Cotterill and Mr. Edmund W. Van Dyke for plaintiff in error and appellant:

The courts below were without, and erred in assuming, jurisdiction to determine whether any, and if so what, conjugal partnership property existed, or, on finding that any did exist, to order a division thereof between the parties, since the proceeding for divorce and the proceeding to secure a separation of the property were required by law in the Philippines to be instituted, if at all, in separate actions, and they were, therefore, improperly joined.

Argument for Appellant.

241 U. S.

The special judge who rendered the decision purporting to be that of the Court of First Instance of Iloilo in the branch of the proceedings that relates to the separation of the conjugal partnership property, and which is now here for review, was not properly designated and empowered, nor did he afterwards properly qualify himself to act. He was, therefore, without jurisdiction.

The retrial in the Court of First Instance with respect to the existence and value of the conjugal partnership property and the amount divisible between the parties was not in conformity with law in that the case was not decided by the judge who presided at the retrial, and before whom the witnesses appeared, but by another judge, before whom not a single witness appeared, and who was specially assigned to the case when the trial judge had resigned his office without having announced a decision.

The courts below erred in attempting to liquidate the claim of the wife to a share in the conjugal partnership property as of July 5, 1902, the date of the judgment of divorce. The Supreme Court of the Islands erred in not reversing the trial court because of the failure of that court to require an inventory required by law; also in sustaining the holding of that court to the effect that an alleged share in the supposed profits of a firm to which appellant belonged was property in his possession, though there was no proof of the existence of such profits at the time of the trial or rendition of the judgment; also in affirming that part of the judgment of the Court of First Instance which includes in the award to the wife an amount arrived at by an attempt to compute profits of said firm based on mere conjecture.

The court below erred in affirming the judgment of the Court of First Instance, that allows interest on the amount stated therein from July 5, 1902.

In support of these contentions, see Behn Co. v. Camp

bell, 205 U. S. 402; Chew Heong v. United States, 112 U. S. 436; Vols. I and IX, Codigo Civil Interpretado por el Tribunal Supremo, El-by Martinez Ruiz; Vols. I and IX, Comentarios al Codigo Civil Español-by Manresa y Navarro; vol. 23, Cyclopædia of Law and Procedure; De la Rama v. De la Rama, 201 U. S. 203; 1 Encyc. Pl. & Pr.; Garrozi v. Dastas, 204 U. S. 64; Gsell v. Insular Collector, 239 U. S. 93; Ill. Cent. R. R. v. Turrill, 110 U. S. 301; Kneeland v. Am. Trust Co., 138 U. S. 509; Mansfield &c. Ry. v. Swan, 111 U. S. 379; Minnesota v. Hitchcock, 185 U. S. 382; Thomas v. Board of Trustees, 195 U. S. 207; United States v. Levois, 17 How. 85.

Mr. Frederic R. Coudert and Mr. Howard Thayer Kingsbury for defendant in error and appellee.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a suit by a wife for divorce, alimony pendente lite and a division of the conjugal property. It has been before this court in the first aspect, 201 U. S. 303, and now comes here on matters affecting the division of property, beginning with the fundamental objection that the division could not be asked in the divorce suit but must proceed on the footing of a decree already made. As to this it is enough to say that no such error was assigned as a ground for appeal, and the objection comes too late. At the previous stage the right of the plaintiff to her proportion of the conjugal property, to alimony pending suit and to other allowances claimed, was said to be the basis of our jurisdiction. 201 U. S. 318. Villanueva v. Villanueva, 239 U. S. 293, 294. The Court of First Instance had jurisdiction of the subject-matter, and the separation or union of the two causes was merely a question of procedure and convenience. The defendant im