terms "landlord" and "tenant" construed; leasehold estates defined. Judgment liens thereon. The People ex rel. Higgins, Receiver, etc., v. McAdam, Justice, etc., Ct. App. N. Y., Daily Reg., March 17, 1881. EXECUTORS.-See ADMINISTRATION.

FALSE IMPRISONMENT. - Authority of House of Representatives to imprison contumacious witness - Privilege of members of Congress.- Congress, or either of its houses, has no rights or powers except such as are expressly or by fair implication conferred by the Constitution. No judicial powers are conferred on Congress, or either of its houses, by the Constitution, except as to its own members and as to impeachment proceedings against government officers. The provision of the Constitution that "No person shall be deprived of life, liberty, or property without due process of law," contains the strongest implication against punishment of a citizen by order of the legis lative body. When, however, either house of Congress is exercising the judicial functions conferred by the Constitution, it may compel the attendance of witnesses and their answer to proper questions. Neither house of Congress has authority to enter upon an investigation into the private affairs of individuals who hold no office under the government. The decision of the Supreme Court in Anderson v. Dun, 6 Wheat. 204, explained and qualified. Kilbourne v. Thompson et al., U. S. Sup. Ct., Week. Cin. L. B., March 21, 1881, p. 84; Alb. L. J., March 19, 1881, p. 227. FEDERAL COURTS. - Jurisdiction of Federal courts - Equitable relief — Residents of same State - Decree in State court-Defence in Federal court — Jurisdiction-Creditors' bill. In a suit in a State court for an account against a deputy-sheriff, who was insolvent and in default, and against his sureties, in which the sheriff and his sureties and two creditors were parties, a decree was rendered in favor of the creditors, awarding each a sum of money. The non-resident representatives of one of these creditors, who had died, brought a chancery suit in a United States Circuit Court making the other creditor and all the parties to the suit in the State court parties defendant, all the defendants being residents of the State. In this suit in the Federal court, it was ascertained that the two debts could not be made except against a surety of the sheriff, and they were made by a sale of the lands of that surety, and the plaintiffs and the other creditor were paid. But, before the cause was ended, one of the sureties of the deputy-sheriff became solvent; whereupon the surety of the sheriff, whose lands had been sold, filed his petition in the Federal court praying that this now solvent surety of the deputy-sheriff, who was liable before himself for the two debts which had been paid, should be made to reimburse himself in the amount of the two debts. Held, that the Federal court, having, as a court of equity, jurisdiction over the parties before it, had jurisdiction to grant the prayer of the petition, though both the petitioning and respondent sureties defendant were residents of the same State; that the decree of the State court, which had not been appealed from, was conclusive against all who were parties to the suit in that court, and that it was not competent for them to make any defence in the Federal court against the two debts decreed, which it might originally have been competent for them to make in the State court, but which they did not make there; that it was competent for the non-resident complainants in the Federal court to bring in as defendants all the parties to the suit in the State court, including the other creditor, and, by a creditors' bill, to obtain a decree for the payment of both debts awarded by the decree of the State court. Howards v. Selden et al., Ex parte Turpin, U. S. Cir. Ct. East. Dist. Va., Fed. Rep., February 22, 1881, p. 465.

Removal of causes - Municipal bonds · Recitals-Estoppel. - By statute of Illinois, a non-resident defendant on whom service has been made only by publication may have the decree opened within three years. Held, that when the decree has been so opened, defendant may remove the cause into the proper Circuit Court of the United States, as if he had been then personally served. Where township bonds in aid of a railroad recite compli

ance with all statutory requirements by the township, the latter is estopped by the recitals to assert non-compliance. It is immaterial that such bonds were not delivered to the railroad company for which they were voted, but to its successor by consolidation. - Harter v. Kernochan, U. S. Sup. Ct., Ch. Leg. N., March, p. 225.

Removal of causes to Federal court- Consolidated railroad corporations. Where railroad corporations (A., B., C., etc.) organized in several States consolidate, and the railroad A. is sued in the State in which it was organized, by the name of the consolidated roads, the other companies of the consolidation who exist out of the State cannot remove the cause to the Federal court. Chicago & Western Indiana R. Co. v. Lake Shore & Michigan Southern R. Co., Fed. Rep., January 18, 1881, p. 19; Rep., March 9, 1881, p. 323.

Citizenship under act of 1875.-The right of removal of a cause, under the act of March 3, 1875, is not dependent upon citizenship when the action was commenced in the State court. Curtiss v. Decker, U. S. Cir. Ct. East. Dist. Wis., Rep., March 2, 1881, p. 290; Ch. Leg. N., February 5, 1881, p. 168; Fed. Rep., February 15, 1881, p. 385.

Federal practice-New trials - Newly discovered evidence Motion made after decision in Supreme Court of the United States. After the decision of the case by the Supreme Court, the Circuit Court cannot grant a motion for a new trial on the ground of newly discovered evidence, but must execute the mandate of the Supreme Court. John Hancock Mutual Life Ins. Co. v. Manning, U. S. Cir. Ct. South. Dist. N. Y., Rep., March 9, 1881, p. 324.

Federal jurisdiction - Indicting justice of the peace. A justice of the peace of a State may, in the exercise of his office, wilfully and corruptly violate a law of the United States, and may be indicted in a Federal court. — United States v. Kindred, U. S. Cir. Ct. East. Dis. Va., Rep., March 2, 1881, p. 289.

Removal of cause from State court by assignee of cause of action Allegation in petition as to Federal question not conclusiveRecord of judgment - Evidence. The first and second sections of the act of Congress of March 3, 1875, defining the jurisdiction of the Circuit Courts of the United States, should be construed together as in pari materia; and, being so construed: held, that they do not authorize the removal of a cause from a State court to the Circuit Court on the application of the assignee of a cause of action, except in cases in which his assignor might have sued in this court. Where the petition for removal stated that the case involves a question arising under the laws of the United States: held, that such allegation is not conclusive, and that the court will look into the record and decide for itself whether it presents a Federal question. Where the plaintiff sued to recover taxes erroneously levied and collected, and alleged that by a decree of a Federal court the said taxes had been declared illegal and void: held, that no Federal question was presented, since the right of action was conferred by the law of the State, and the decree of the Federal court was only an item of evidence. Berger v. County Commissioners of Douglas County, U. S. Cir. Ct. Dist. Neb., Int. Rev. Rec., February 7, 1881, p. 38; Fed. Rep., January 18, 1881, p. 23.

Removal of cause. Under the second clause of sect. 2 of the act of March 3, 1875, any suit mentioned therein is removable whenever it involves a controversy wholly between citizens of different States, and which can be fully determined, as between them, upon the petition of either one or more of the plaintiffs or of defendants actually interested in such controversy, and it is immaterial whether such controversy is considered the main or principal one in the suit or not, or what other controversies or parties are incidentally or otherwise involved in it.-Bybee v. Hawkett et al., U. S. Cir. Ct. Dist. Or., Fed. Rep., January 18, 1881; Int. Rev. Rec., February 7, 1881, p. 41.

FEDERAL COURTS

·Jurisdiction Action by State against individual — Acts of Congress Original jurisdiction — Federal question-Removal of causes - -Jurisdiction. While the Eleventh Amendment of the Constitution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State. A case in law or equity consists of the rights of both parties, and may properly be said to arise under the Constitution and laws of the United States whenever its correct decision depends on the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, privilege, claim, protection, or defence of the party, in whole or in part, by whom they are asserted. Except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct. And, lastly, it is not sufficient to exclude the judicial power of the United States from a particular case, that it involves questions which do not at all depend on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. These propositions, now too firmly established to admit of further discussion, embrace the present case, and show that the inferior State court erred in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, and in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal. New Orleans, Mobile & Texas R. Co. v. State of Mississippi, U. S. Sup. Ct., Ky. L. Rep., February, 1881, p. 137.

Removal of causes to Federal courts Bond - Citizenship — Remanding cause- Jurisdictional defect. The jurisdiction of the Federal court in a case removed from a State court does not depend upon the form or the substance of the bond for removal, if the statute in other respects has been complied with. A cause cannot be removed under the act of 1875 unless the petition for removal shows that the required citizenship of the parties existed at the time of the commencement of the action. The court will, without formal motion, take notice of a jurisdictional matter which is ground to remand the cause.- Beebe v. Cheeney, U. S. Cir. Ct. Dist. Minn., Rep., March 16, 1881, p. 360.

See CORPORATIONS; CRIMINAL LAW.

FIXTURES. See MORTGAGE.

FORCIBLE ENTRY AND DETAINER. - See CRIMINAL LAW.

FORECLOSURE. - See MORTGAGE.

Rule in

FRAUD. Fraudulent conveyances - Lien of creditors' judgments Oregon. Where property is fraudulently transferred, to hinder, delay, or defraud creditors, the estate is in the grantee; it is not in the grantor, and judgments against him are not liens thereon. To create a lien, there must be be a statute to that effect In Oregon the conveyance is voidable only at the election of the creditor, and a judgment is not a lien. In re Estes, U. S. Cir. Ct. Dist. Or., Rep., March 2, 1881, p. 286.

See INSURANCE (LIFE); MORTGAGE.

-

Fraudulent conveyance Subsequent judgment — Lien. - The statute of Oregon concerning fraudulent conveyances provides, among other things,

FRAUD- Continued.

that every conveyance of any estate in lands, "made with intent to hinder, delay, or defraud creditors of their lawful demands, * * as against

*

the person so hindered, delayed, or defrauded, shall be void." Held, under this statute, that until the conveyance is set aside a mere equitable right remains in the creditor, which he may or may not enforce, and until he does enforce it the estate is in the grantee, and upon it a judgment creditor acquires no lien by his judgment. In re Estes & Carter, U. S. Cir. Ct.

Dist. Or., Fed. Rep., January 18, 1881, p. 60.

GARNISHMENT. — Rights of parties — Separate trial· Change of venue. When a person is made party to an action in a garnishee proceeding upon judgment and execution under the provisions of sect. 1, chap. 117, Laws 1866 (Ter. Stats., 1481, sect. 54), to contest with the plaintiff the right to the property in the hands of, or money due from the garnishee, such party is entitled to a separate trial of his rights. And he is entitled to have the place of trial changed, upon an affidavit alleging the prejudice of the judge, without joining the garnishee or the original defendant in the execution in the application for such change. A refusal to change the place of trial when the applicant is entitled thereto is error; and such error is not waived by afterwards taking part in the trial of the action. Such error will be cause for a reversal of the judgment upon an appeal therefrom to this court. - Hewett et al. v. Follett, Sup. Ct. Wis., Wis. Leg. N., March 2, 1881, p. 157.

GIFT.-Recovery of gift from father to daughter - Gift may be valid as against future mortgage to creditor - Competent evidence. A father may make an irrevocable gift inter vivos to his infant daughter, which will be valid against his future mortgage to a creditor. What is said by a person in possession of personal property in connection with, and explanatory of his title or possession, is competent evidence as a part of the res gesta. - Kellogg . Adams, Sup. Ct. Wis., Wis. Leg. N., February 3, 1881, p. 128.

GUARANTY. Provisions of contract Assent of surety - Discharge of. A contract of guaranty of performance by an agent appointed to vend farm implements contained a provision that it should not be in force until approved by the manager. Instead of approving it as written, the manager made an alteration by which the agent was bound to take certain old machines, instead of all new ones. The surety did not assent to the change, and was discharged. - Osborne v. Van Houten, Sup. Ct. Mich., N. W. Rep., February 5, 1881.

See MORTGAGE.

HOMESTEAD. - Construction of homestead law Exemption. - Under the statute as it existed before the late revision, an exempt homestead was required to be of land held in severalty by the person claiming the exemption. It is settled in this State that the homestead law will be liberally construed to effect its design. The purposes for which plaintiffs had removed from their former homestead at H. had failed; they had not acquired any new exempt homestead. With a view to returning to their former home, they had surrendered their contract for the purchase of property at A., on which they had temporarily resided, and had arranged with the tenant of their house at H. to procure for himself another house, but had consented, at the request of the owner of the property at A., to remain there until fall. About the middle of August the plaintiff wife removed some furniture to the house at H., and with one child occupied that house several days, and then returned to the family at A. Near the end of the same month a judg ment was docketed against the plaintiff husband, which became a lien on any land of his at H. not exempt, and defendant claims plaintiffs' former homestead at H. under an execution sale upon that judgment. Held, that the property was exempt. -Zimmer v. Pauley, N. W. Rep., March 12, 1881, p. 451.

HOMESTEAD - Continued.

Conveyance Acknowledgment - Coercion. - The certificate to the separate acknowledgment of the wife is conclusive of the facts recited, except in cases of fraud, mistake, or imposition, and third parties will not be affected even then unless they participate therein or have notice thereof. Conveyance of the wife, to be binding, must be willingly executed. - Kocourek v. Marak et al., Sup. Ct. Texas, Texas L. J., February 2. 1881, p. 323.

Dower Value of surviving wife's, as against heirs on sale of same in partition. On bill for the partition of land, where partition cannot be made without injury, and the widow of the former owner of the premises consents in writing to the sale of her homestead and dower therein, and agrees to take a sum in gross for her interests, it is erroneous to give her $1,000 of the proceeds of the sale absolutely. Her estate of homestead being only a life-estate, with the remainder in the heirs of the deceased owner, the value of her life-estate, or right to occupy land of the value of $1,000 during her life, must be ascertained according to the usual mode of determining the value of life-estates in similar cases, or the $1,000 must be invested and the proceeds thereof paid over to her during her life, leaving the principal for the heirs at her death. When land is ordered to be sold on bill for partition by the written consent of the widow, and the value of her homestead estate is ascertained, she will only be entitled to the value of her dower as to the residue of the proceeds of the sale, and not in the entire fund. Merritt v. Merritt, Sup. Ct. Ill., Week. Jur., March 3, 1881, p. 884.

INDICTMENT. - See CRIMINAL LAW; MORTGAGE.

INJUNCTION.

That personal property is mortgaged is no ground to enjoin sale on execution. George v. Dyer, Ct. App. Texas, Texas L. J., March 23, 1881, p. 439.

·Order dissolving injunction — Appointment of receiver - Order appealable Title to land - Dispute as to Threatened assault. An order dissolving an injunction and appointing a receiver, in form and substance an order of the Circuit Court, and not an order of the judge at chambers, is appealable to this court; and it cannot be objected here that such order ought to have been made by the judge at chambers, and not by the court. In a suit, when the title to the land is in litigation, and when both parties are in possession, interfering with each other in securing the crops respectively produced by each, and threatening assaults and resistance which might result in expensive and frequent litigation, it is highly proper to appoint a receiver to take possession of the land and secure the productions for the rightful party. The appointment of a receiver renders a continuance of the injunction against the interference of one of the parties unnecessary. Hiawacek v. Bohman, Sup. Ct. Wis., Wis. Leg. N., February 3, 1881, p. 128. See MORTGAGE.

INSURANCE (FIRE). — Authority of agent Waiver by agent of condition in policy. A compulsory nonsuit should not be granted except where the evidence, on the most favorable construction for the plaintiff that can be given it, will not justify a verdict in his favor. An agent authorized to issue policies of insurance may, after such a policy is issued, bind the insurer by an agreement that the assured may procure further insurance in other companies, contrary to the conditions of the policy. In pursuance of a custom among the insurance agents in a city, X., one of such agents, to whom an application for insurance had been made (without specification of the companies in which it should be placed), by agreement with Y., another of such agents, procured the risk to be taken in two companies of which Y. was, and X. was not, the authorized agent. X. delivered the policies, countersigned by Y., to the assured, and collected and delivered to Y. the premiums, which were divided between X. and Y. The assured did not know of anything that occurred between X. and Y., or that X. was not authorized to act as