and where the mortgagor after failing to insure in accordance with
the covenant transfers the property to a voluntary assignee. In such
case the insurance taken out by the assignee, who stands in the shoes
of the assignor, must be assumed to be taken out in fulfillment of the
mortgagor's covenant, and in the event of loss the amount collected
under the policies inures to the benefit of the mortgagee, and cannot
be retained by the assignee as representing his interest, or that of gen-
eral unsecured creditors, in the equity of the property. American Ice
Co. v. Eastern Trust, etc., Co., 626.
1. The mere reduction of the reserve of a national bank below the legal
limit does not affect with a legal presumption of bad faith, all transac-
tions made with or concerning the bank during the period whilst the
reserve is impaired. Earle v. Carson, 42.
2. It is not competent for state legislatures to interfere, whether with hos-
tile or friendly intentions, with National Banks or their officers in the
exercise of the powers bestowed upon them by the General Govern-
ment. Easton v. Iowa, 220.
One who has in good faith and in payment of an existing debt, received
currency, cannot be compelled to repay the same even though it sub-
sequently develops that it had been embezzled by the one who made
the payment, and the burden of showing fraud is on the person claim-
ing the repayment. Rankin v. Chase National Bank, 557.
1. In order for a party in possession to maintain a bill of peace for the pur-
pose of quieting his title to land against a single adverse claimant in-
effectually seeking to establish a legal title by repeated actions of eject-
ment, it is necessary for the bill to aver that complainant's title has
been established by at least one successful trial at law; and where it
appears from the bill that an action at law involving the same questions
has been commenced, but has not been tried, it is a fatal defect.
Boston &c. Mining Co. v. Montana Ore Co., 632.
2. To maintain a bill of peace in the Federal courts there must be an allega-
tion that the complainant is in possession, or that both parties are out
of possession. Ib.
See APPEAL AND WRIT OF ERROR, 1;
CONSTITUTIONAL LAW, 15;
INTERSTATE COMMERCE, 3.
1. Under the decisions of the Supreme Court of Florida objections to the
panels of grand juries not appearing of record must be taken by plea
in abatement of, and not by motion to quash, the indictment. Tar-
rance v. Florida, 519.
2. It is competent and proper for all the parties to an action to agree to dis-
pense with taking evidence, to accept the evidence taken in other cases
in which the allegations of fact and the contentions of law are the same,
and to abide by decrees to be entered therein. And, where the decrees
entered in such other cases have been affirmed by this court, the Circuit
Court in which the cases are pending should enter a similar decree in
the case in which the agreement is made. Prout v. Starr, 537.
3. Such agreement when made by the attorney general of the State as a
party to any action is binding upon his successors in office who have
been properly substituted as parties to the action in his place. Ib.
4. The question whether the appropriation of water interferes with the
rights of other appropriators below the mouth of a proposed new irri-
gation canal cannot be raised by parties who are strangers to such
other appropriators not parties to the action. Gutierres v. Albu
querque Land, etc., Co., 545.
5. Where the highest court of a State has construed decrees made by a
United States court and a state court of another State authorizing the
sale of certain accounts by a receiver as merely authorizing a sale of
the receiver's right, title and interest in such accounts, and that such
right, title and interest was subject to the lien of one who had ad-
vanced money on the faith of a contract authorizing him to collect such
accounts and repay himself thereout, such construction is not an un-
reasonable one, and the burden rests upon the plaintiff in error to show
that such construction is in violation of the due faith and credit clause
of the Federal Constitution. And the judgment will be affirmed un-
less the record shows with certainty that such construction did deny
'due faith and credit to the decrees in question. Commercial Publish-
ing Co. v. Beckwith, 567.
6. While this court is not bound by the construction placed by the state
court upon statutes of that State when the impairment of the contract
clause of the Constitution is invoked, yet when the true construction
of a particular statute is not free from doubt considering former legis-
lation of the State upon the same subject, this court feels that it will
best perform its duty in such case by following the decisions of the
state court upon the precise question, although doubts as to its cor-
rectness may have been uttered by the same court in some subsequent
case. Waggoner v. Flack, 595.
7. Where two cases, brought by the same plaintiff, against different de-
fendants, consolidated for trial, each of the defendants is entitled to
three peremptory challenges. But the weight of authority is that the
right of the plaintiff is not correspondingly multiplied, and that she is
entitled to but three. But if the defendants do not exhaust their right
to peremptory challenges, they cannot complain that the plaintiff was
allowed more than the number to which she was entitled. Connecti-
cut Mutual Life Ins. Co. v. Hillmon, 208.
See APPEAL AND WRIT OF ERROR;
EQUAL PROTECTION OF LAWS;
JURISDICTION, B, 5;
PLEADING.
PRESUMPTION.
See EQUAL PROTECTION OF LAWS;
NATIONAL BANKS, 1.
1. Vessels more than five miles apart held not to be within signal distance
so as to be entitled to share in prize under the circumstances of this
case. Vessels not within signal distance are not "vessels making the
capture" within Rev. St. § 4630, although they may have contributed
remotely to this result. They cannot be taken into account in estimat-
ing the relative force of capture and prize. In estimating the relative
strength of the captured and capturing vessels, the means possessed
by the captured vessel, and not the use made of them must be consid-
ered. The Mangrove Prize Money, 720.
2. While the right of the citizen to demand condemnation of vessels or
property as prize for his benefit must be derived from acts of Con-
gress, and their scope is not to be enlarged in his favor by construc-
tion, where there is no controversy in respect to the existence of the
grant, a more liberal construction may be applied in carrying the in-
tention of Congress into effect. The Manila Prize Cases, 254.
3. Vessels lying on the bottom in shallow water in such condition, as the
result of a naval engagement, that they cannot be floated by any of the
means possessed by the naval force overcoming them, but which are
afterwards, by the independent means of the Government, raised and
repaired and appropriated to its own use are not to be regarded as
sunk or destroyed within the meaning of sec. 4635, Rev. Stat., but
they may be regarded as within the provisions of secs. 4624 and 4625,
and their money value may stand in place of prize and be so adjudi-
cated. Ib.
4. The legal status of property taken from vessels in such condition must
be regarded as the same as the vessel to which it belongs. Ib.
5. Naval stores-public enemy property-designed for hostile uses, stored
on the sea shore, in an establishment for facilitating naval warfare,
when taken by a naval force, as a result of a naval engagement, can be
adjudged as prize for the benefit of the captors. Ib.
6. As the right of the government of the capturing naval force is supreme,
it may when in its judgment the public interest demands it, restore a
prize; and the courts cannot proceed to condemnation as to captured
property restored under a treaty of peace before decree. The strength
of the capturing naval force under Admiral Dewey's command at
Manila was superior to that of the Spanish fleet on May 1, 1898. Ib.
7. Cascoes, or native boats, and certain floating derricks, property of pri-
vate persons in the Philippine Islands, were rightly held by the Dis-
trict Court not to be subject to condemnation as prize. Ib.
8. Vessels performing the functions of colliers and not in a condition to
render effective aid, if required, during a naval engagement and the
masters and crews thereof who have been shipped, but who are not
commissioned or enlisted men in the United States Navy, are not en-
titled to participate in prize money or bounty resulting from the cap-
ture and destruction of the enemy's vessels. Ib.
9. The Spanish war vessel Infanta Maria Teresa at the engagement at San-
tiago on July 3, 1898, was so far sunk and destroyed that she could not
be sent in for adjudication, and no survey was had nor was any sale
directed by the commanding officer, nor was she taken by and appro-
priated for the use of the United States and the value deposited under
sec. 4625, Rev. Stat. Subsequently she was raised by a wrecking com-
pany under a contract with the Government and taken as far as Guan-
tanamo, whence, after certain temporary repairs were made, it being
impossible to completely repair her at that port, she proceeded in tow
and partially under her own steam to Norfolk, the nearest govern-
ment navy yard and the nearest point where permanent repairs could
be made. On the way she was lost at Cat Island as a result of inabil-
ity to withstand the storm on account of injuries received in the action
at Santiago, became a total wreck, and was abandoned. The command-
ing officer concurred with the Government in the effort at salvage.
Held, that as the salvage was not actually accomplished, there was no
appropriation to its use by the Government in the meaning of the stat-
ute and the captors were entitled to bounty only and not to prize money.
Held, that the disposition of the property taken from the vessel must
follow the rule laid down in The Manila Prize Cases, ante, p. 254. The
Infanta Maria Teresa, 283.
Where an order is made on Friday by the Supreme Court of the District of
Columbia in pursuance of the act of June 8, 1898, 30 Stat. 434, which
requires publication of a notice at least twice a week for a period of
not less than four weeks, two publications in each successive seven
VOL. CLXXXVIII-49
days, commencing on the day of the entry of the order, is sufficient.
Such an order does not require two publications for four weeks, each
of which commences Sunday and ends Saturday. Leach v. Burr, 510.
PUBLIC IMPROVEMENTS.
See CONSTITUTIONAL LAW, 1.
The grant of public lands made by the act of July 2, 1864, c. 217, to the
Northern Pacific Railroad Company, embraced only the odd-numbered
alternate sections of which the United States had at the time of definite
location "full title, not reserved, sold, granted or otherwise appropri-
ated, and free from preemption or other claims or rights," provided
that whenever prior to such definite location any sections or parts of
sections had been granted, sold, reserved, "occupied by homestead
settlers" or preëmpted or otherwise disposed of, other lands should
be selected by the company "in lieu thereof" not more than ten
miles beyond the limits of the alternate sections. By the same act
the president was directed to cause the lands to be surveyed forty
miles in width on both sides of the entire line of road after the gen-
eral route was fixed and as fast as might be required by the construc-
tion of the road; and it was provided that the odd sections of land
"hereby granted" should not be liable to sale or entry or preemption
before or after they were surveyed, except by the company as provided
in the act. The general route of the road was fixed in 1873, and in the
same year the land office directed the local officers to withhold from
"sale or entry" all odd-numbered sections falling within the forty-
mile limits of the grant along the line of road. In 1880 Congress
passed an act for the relief of settlers on the public lands. In 1881 Nel-
son, qualified to enter public lands under the homestead acts, with the
intention in good faith to avail himself of the benefit of the homestead
acts, went upon the tract in question and thereafter continuously occu-
pied it as his residence. In 1884 the railroad company definitely located
its line of road, and by November 18, 1886, had completed a section of
forty miles coterminous with the land here in controversy. The land,
when occupied by Nelson as a residence, was unsurveyed, and was not
surveyed until 1893; but as soon as surveyed, he attempted to enter it
under the homestead laws; but his application was rejected by the
local land officers. In 1895 the railroad company was given a patent
to the land in question. Held: (1) That although the company held
a patent for the land in controversy, the occupant was entitled to judg-
ment if it appeared that he was equitably entitled to possession as
against the company. (2) The occupancy of Nelson, as a homestead
settler was protected by the act of Congress of 1864, although prior to
such occupancy the land office had issued an order of withdrawal from
entry or sale, based upon the map of general route. (3) The railroad
company acquired no vested interest in the land prior to definite loca-
tion; and as Nelson was in the occupancy of the land as a homestead
settler at the time of definite location, the land did not pass by the
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