cases enumerated in section 709, Rev. Stat., the right, title, privilege or
immunity relied on must not only be specially set up or claimed, but
(1) at the proper time, which is in the trial court whenever that is re-
quired by the state practice, as it is in California, and (2) in the proper
way, by pleading, motion, exception, or other action, part or being
made part, of the record, showing that the claim was presented to the
court. Mutual Life Insurance Co. v. McGrew, 291.

4. Where it is claimed that the decision of a state court was against a right,
title or immunity claimed under a treaty between the United States and
a foreign country and no claim under the treaty was made in the trial
court and it is a rule of practice of the highest court of the State that
it will not pass on questions raised for the first time in that court and
which might and should have been raised in the trial court, the writ of
error will be dismissed. Ib.

5. The mere pleading of a decree in a foreign country or of a statute of
such country and the construction of the same by the courts thereof
do not amount to specifically asserting rights under a treaty with that
country. Ib.

6. Judicial knowledge cannot be resorted to to raise controversies not pre-
sented by the record. Ib.

7. The raising of a point in this court as to the faith and credit which
should be given judicial proceedings of a foreign country, which ceased
to be foreign before judgment was rendered in a state supreme court,
but was not brought to the attention of that court, comes too late. Ib.
8. The construction placed by the highest courts of the State upon a stat-
ute providing for paving streets and distributing the assessment there-
for is conclusive upon this court. Schaefer v. Werling, 516.

1. Where a sheriff after selling under an execution and before paying over
to the judgment creditor, is enjoined in a state court by another cred-

itor from so doing, and immediately after the state court has set the
restraining order aside, and while the money is still in the hands of
the sheriff, and within the time allowed for the return of the execu-
tion, and before it is returned, a petition in bankruptcy is filed against
the judgment debtor, the money does not belong to the judgment cred-
itor but goes, under section 67ƒ of the Bankrupt Act of 1898, to the
trustee in bankruptcy. Clarke v. Larremore, 486.

2. One who received money to indemnify him for giving bail bonds for a
person subsequently and more than four months thereafter adjudicated
a bankrupt, and against whom the judgment creditors in the suits in
which he gave the bonds are seeking to enforce execution, holds such
money as an adverse claimant within the meaning of section 23, a and
b of the Bankruptcy Act of 1898. Jaquith v. Rowley, 620.
See JURISDICTION, C, 1, 2.

BILL OF PEACE.

See PLEADING.

BONDS.

An action upon the official bond of a superintendent of the Mint at New
Orleans, conditioned among other things that he would "faithfully
and diligently perform, execute and discharge all and singular the
duties of said office according to the laws of the United States "
and "receive and safely keep, until legally withdrawn, all moneys or
bullion which shall be for the use or expenses of the Mint." The
claim was that the defendant had received and not paid over to the
United States $25,000 in treasury notes which had come to his hands.
The defence was that the treasury notes had been totally destroyed by
fire, without any negligence on the part of the superintendent, except
that $1182 of such notes had been recovered in a charred condition and
turned over to the United States, being in such condition that they
could be identified as to amount and date of issue. Held: (1) That
the obligations of the superintendent were not determinable by the
law of bailment, and the superintendent could not escape responsi-
bility for any treasury notes that came to his hands and which were
lost, unless such loss was attributable to overruling necessity or the
public enemy; that their loss by reason of fire constituted no defence.
(2) No deduction could be allowed on account of the $1182 of charred
notes, because no previous application had been made to the proper
accounting officers for the allowance of such a credit. (3) The super-
intendent was liable on his bond for interest at six per cent from the
date on which his accounts were stated at the Treasury Department.
Smythe v. United States, 156.

BOUNTY.

See PRIZE.

1. Brown v. Houston, 114 U. S. 622, distinguished from Kelley v. Rhoads, 1.
2. Carter v. Texas, 177 U. S. 442, distinguished from Tarrance v. Florida,

519.

3. Coe v. Errol, 116 U. S. 317, distinguished from Kelley v. Rhoads, 1.
4. Farmers' Loan & Trust Co. v. Penn Plate Glass Co., 186 U. S. 434, dis-
tinguished from American Ice Co. v. Eastern Trust &c. Co., 626.

5. Pittsburg &c. Coal Co. v. Bates, 156 U. S. 57, distinguished from Kelley
v. Rhoads, 1.

CASES FOLLOWED.

1. Boston & Montana Con. Mining Co. v. Montana Ore Co., 188 U. S. 632, fol-
lowed in Boston & Montana Mining Co. v. Chile Gold Mining Co., 645.
2. Coe v. Errol, 116 U. S. 617, followed in Diamond Match Co. v. Ontonagon,
82.

3. King v. Mullins, 171 U. S. 404, followed in Swan v. West Virginia, 739.
4. Morley v. Lake Shore &c. Ry. Co., 146 U. S. 162, followed in Read v. Mis-
sissippi County, 739.

5. Smith v. Mississippi, 162 U. S. 592, followed in Tarrance v. Florida, 519.
6. Smyth v. Ames, 169 U. S. 466, followed in Prout v. Starr, 537.

7. The Manila Prize Cases, 254, followed in The Infanta Maria Teresa, 283.
8. Thompson v. Whitman, 18 Wall. 457, followed in Andrews v. Andrews, 14.
9. Wisconsin v. Pelican Ins. Co., 127 U. S. 215, followed in Andrews v. An-
drews, 14.

CAVEAT.
See WILL.

CHALLENGES.

See PRACTICE, 7.

CLOUD ON TITLE.

See EQUITY, 2.

COMMERCE.

See INTERSTATE COMMERCE.

CONGRESS, POWERS OF.

1. The provisions of the corporation laws of the Territory of New Mexico
relating to the formation and rights of irrigation companies are not
invalid because they assume to dispose of property of the United
States without its consent. By the act of July 26, 1866, 14 Stat. 253;
Rev. Stat. § 2339, and the act of March 3, 1877, 19 Stat. 377, Congress
recognized as respects the public domain and so far as the United
States is concerned, the validity of the local customs, laws and deci-

sions in respect to the appropriation of water, and granted the right
to appropriate such amount of water as might be necessarily used for
the purpose of irrigation and reclamation of desert land, part of the
public domain, and as to the surplus, the right of the public to use
the same for irrigation, mining and manufacturing purposes subject
to existing rights. The purpose of Congress to recognize the legisla
tion of Territories as well as of States in respect to the regulation of
the use of public water is evidenced by the act of March 3, 1891, 26
Stat. 1095. The statute of New Mexico is not inconsistent with the
legislation of Congress on this subject. Gutierres v. Albuquerque
Land, etc., Co., 545.

2. The act of March 3, 1877, is not to be construed as an expression of Con-
gress that the surplus public waters on the public domain, and which
are within the control of Congress or of a legislative body created by
it, must be directly appropriated by the owners of lands upon which a
beneficial use of the water is to be made and that consequently a ter-
ritorial legislature cannot lawfully empower a corporation to become
an intermediary for furnishing water to irrigate the lands of third par-
ties. Ib.

3. Neither the act of Congress of March 3, 1899, c. 425, nor any previous
act relating to the erection of structures in the navigable waters of the
United States manifested any purpose on the part of Congress to assert
the power to invest private persons with power to erect such structures
within a navigable water of the United States, wholly within the ter-
ritorial limits of a State, without regard to the wishes of the State
upon the subject. Cummings v. Chicago, 410.

4. Under existing legislation, the right to erect a structure in a navigable
water of the United States, wholly within the limits of a State, de-
pends upon the concurrent or joint assent of the State and National
Governments. Ib.

5. Legislation prohibiting the carriage of lottery tickets by independent
carriers from one State to another is not inconsistent with any limita-
tion or restriction imposed upon the exercise of the powers granted to
Congress. Lottery Case, 321.

6. Such legislation comes within the powers of Congress to regulate com-
merce among the several States. Ib.

7. Congress having power to create a system of national banks, is the judge
as to the extent of the powers which should be conferred upon such
banks, and has the sole power to regulate and control the exercise of
their operations. Congress having dealt directly with the insolvency
of national banks by giving control to the Secretary of the Treasury
and the Comptroller of the Currency, who are authorized to suspend
the operations of the banks and appoint receivers thereof when they
become insolvent, or when they fail to make good any impairment of
capital, and full and adequate provision having been made for the pro-
tection of creditors of national banks by requiring frequent reports to
be made of their condition, and by the power of visitation of Federal
officers, it is not competent for state legislatures to interfere, whether
with hostile or friendly intentions, with national banks or their officers

in the exercise of the powers bestowed upon them by the general gov-
ernment.

Easton v. Iowa, 220.

See APPEAL AND WRIT OF ERROR, 1;

CONSTITUTIONAL LAW, 15;

INTERSTATE COMMERCE, 3.

1. Within repeated decisions of this court the statute of a State under
which the cost of a public improvement may be assessed upon the
abutting property in proportion to frontage, such statute, as con-
strued by the state courts, requiring such assessment to conform to
the actual special benefits accruing to each of the abutting property
owners, is not in conflict with the Constitution of the United States.
Schaefer v. Werling, 516.

2. The Constitution of the United States, with the several amendments
thereof, must be regarded as one instrument, all of whose provisions
are to be deemed of equal validity. And in an action properly insti-
tuted against a state official the Eleventh Amendment is not a barrier
to a judicial inquiry as to whether the provisions of the Fourteenth
Amendment have been disregarded by state enactments.
Prout v.
Starr, 537.

3. By the Laws of Texas of 1883, c. 58, as amended by the Laws of 1885,
c. 12, p. 13, a purchaser was bound to pay the notes given in payment
for public land as they matured, and it was the duty of the commis-
sioner to issue a patent for the land on payment of the notes and inter-
est. In November, 1885, the laws of Texas did not give the State the
right to forfeit lands for non-payment of installments due from pur-
chasers, although at various periods prior thereto there had been pro-
visions in the law to that effect. In 1897 and 1895 laws were enacted
providing for forfeiture in case of such non-payment, but giving the
purchaser the right to be heard in a court of justice pursuant to cer-
tain forms of procedure prescribed in the law upon the question of
whether he was actually in default. Held, as to a purchaser of lands
in 1885 (after the passage of the act of that year) and who from 1893
to December, 1897, (after the passage of the act of that year) had failed
to make any of the payments due under his contract, that the act of