not only to combination in form of trusts, but also to combinations of labor; Bartlett v. Morris, 9 Port. 268, where statute authorizing alien to inherit such estates as she might have inherited had she not been an alien, held not to have removed alien ancestor's disability to transmit property to her; Mangham v. Cox, 29 Ala. 88, holding liability, under statute providing against transportation of slave without master's written consent, to extend to such act committed unintentionally; Simington v. State, 5 Ind. 484, interpreting act prescribing jurisdiction of courts; Leonard v. Wiseman, 31 Md. 205, construing act providing for bounty to volunteers and enlisted inen, holding it to repeal prior statute so far as inconsistent; Jim v. State, 3 Mo. 167, as to construction generally; Chamberlain v. Western Transportation Co., 44 N. Y. 311, 4 Am. Rep. 686, holding exemption of carrier from liability for loss by fire of " any goods or mer chandise whatsoever," to extend to baggage of passengers; Stiles v. Murphy, 4 Ohio, 97, construing statute prescribing effect of judgment as lien; and in Walden v. Lane, 1 Overt. 75, as to statute limiting jurisdiction of Justices' Courts.

Construction of statutes.- Where a case is shown to be out of the mischief guarded against, or out of the spirit of the law, the letter of the statute will not be deemed so unequivocal as to absolutely exclude another construction, p. 29.

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Principle applied in Jim v. State, 3 Mo. 170, construing statute providing for change of venue on ground of interest of judge; Ayers v. Lawrence, 59 N. Y. 199, holding that under act for protection of taxpayers against wrongful acts of public officers or agents action lay to prevent unauthorized act by special commissioner.

Contract.- Obligation of contract to pay "current money" is satisfied by payment of that which the law recognizes as money when payment is due, p. 32.

Principle affirmed and applied in Legal Tender Cases, 12 Wall. 548, 20 L. 311, upholding power of congress to make United States notes legal tender; but distinguished in dissenting opinion, Herbert v. Eaton, 43 Ala. 553, họlding, however, that true criterion is value of property at date of sale; so also in Bozeman v. Rose's Exrs., 51 Ala. 325; Higgins v. Bear River Mining Co., 27 Cal. 161, but holding further as to effect of agreement to pay in particular kind of money; dissenting opinion in Hepburn v. Griswold, 2 Duv. (Ky.) 72, majority holding legal tender acts unconstitutional; Howe v. Nickerson, 14 Allen, 402, where court refused to enforce specific performance of award to pay certain number of dollars "in gold; " applied in George v. Concord, 45 N. H. 448, under similar facts. Cited in Metropolitan Bank v. Van Dyck, 27 N. Y. 454, as to satisfaction of mortgage; Legal Tender Cases, 52 Pa. St. 70, where rent payable in "lawful silver money" held satisfied by payment in treasury notes;

Dearing's Admx. v. Rucker, 18 Gratt. 450, as to note taken in lieu of payment in Confederate currency. Criticised in dissenting opinion, Legal Tender Cases, 12 Wall. 661, 20 L. 348.

2 Cr. 33, 2 L. 198, OGLE v. LEE.

Certificate of division.- Court can consider only questions upon which judges below divided in opinion, p. 33.

Cited approvingly on this point in Ward v. Chamberlain, 2 Black, 434, 17 L. 323, refusing to consider irregularities in proceedings below; dissenting opinion, Dow v. Johnson, 100 U. S. 173, 25 L. 637, majority holding that Circuit Court could take cognizance of certificate of division in a case not within its jurisdiction, in first instance; State v. Crocker, 5 Wyo. 398, 40 Pac. 684, holding that although questions may be reserved before judgment, hearing of them upon certificate is within appellate jurisdiction of higher court.

Certificate of division.- By determination of questions, parties are not precluded from bringing writ of error on final judgment below, p. 33.

Rule applied in Daniels v. Railroad Co., 3 Wall. 255, 18 L. 225, dismissing action for want of jurisdiction, certificate having brought up whole case, both fact and law, although by single points; Bagg v. City of Detroit, 5 Mich. 70, holding that it is no objection to jurisdiction that whole matter may be again brought up on appeal. Interlocutory decree may be reversed by court at any time, p. 33. Cited approvingly on this proposition in Griffin v. Oman, 9 Fla. 47, as to decree directing reference for purpose of ascertaining material facts; dissenting opinion in County of Cook v. Canal Co., 131 Ill. 519, 23 N. E. 632, majority holding that after term has expired, court has no authority at subsequent term to set aside decree granting new trial; Deickhart v. Rutgers, 45 Mo. 136, as to decree directing payment of sun to be ascertained by referee.

2 Cr. 33-64, 2 L. 199, PENNINGTON v. COXE.

Construction of statutes.- Every part of an act must be considered to discover intent of legislature, p. 52.

This rule has been applied in the following citing cases, construing various statutes: United States v. Freeman, 3 How. 565, 11 L. 728; dissenting opinion, Henderson's Distilled Spirits, 14 Wall. 68, 20 L. 820; Arthur v. Lahey, 96 U. S. 117, 24 L. 767; Wilson v. Rousseau, 1 Blatchf. 84, F. C. 17,832; In re Jayne, 28 Fed. Rep. 424; Cross v. Seeberger, 30 Fed. Rep. 428; Van Patten v. Chicago, etc., Ry. Co., 81 Fed. Rep. 547; Eslava's Heirs v. Bolling, 22 Ala. 736; State, ex rel. v. Commissioners, 20 Fla. 432; Akin v. Freeman, 49 Ga. 54;

Lyles v. Barnes, 40 Miss. 609; Larned v. Corley, 43 Miss. 695; N. O. J. & G. N. Ry. Co. v. Evans, 49 Miss. 788; Jim v. State, 3 Mo. 167, 170; State v. Delesdenier, 7 Tex. 106.

2 Cr. 64-126, 2 L. 208, MURRAY v. THE CHARMING BETSEY. Construction of acts of congress.- An act of congress ought never to be construed to violate the law of nations, if any other possible construction remains, p. 118.

Cited and applied in opinion rendered by Appleton and Kent, JJ., to house of representatives, declaring “personal liberty acts" constitutional, 46 Me. 587; Ex parte Blumer, 27 Tex. 740, holding foreigners not domiciled in Confederate States not liable to enrollment under conscript laws.

Admiralty forfeiture.- Vessel and cargo belonging to one, who, though born in the United States, was resident of Danish island, and had taken oath of allegiance to king of Denmark, is not liable to forfeiture under act suspending intercourse with France, p. 120. Cited and rule applied in Sands v. Knox, 3 Cr. 503, 2 L. 512, holding that nonintercourse act imposed no liability upon United States vessels sold bona fide to foreigners, while act in force; United States v. Wong Kim Ark, 169 U. S. 658, 42 L. 894, 18 S. Ct. 460, holding child born of Chinese parents resident in this country, to be citizen within meaning of fourteenth amendment; Comitis v. Parkerson, 56 Fed. Rep. 558, holding actual removal from country and acquisition of domicile elsewhere to be condition precedent to expatriation; Schooner Amado and Cargo, 1 Newb. 407, F. C. 12,005, holding liable to forfeiture, vessel owned by Frenchman domiciled in Mexico, with which country United States was at war; dissenting opinion in Amy v. Smith, 1 Litt. (Ky.) 341, majority holding free negro not citizen by reason of birth in this country; Lyndon v. Danville, 28 Vt. 816. holding that alien born does not have settlement in State which his father had, if before birth of child, father removed into foreign jurisdiction and did not return. Cited in general discussion of subject in note to The Mary and Susan, 1 Wheat. 55, 4 L. 35, n.; United States v. One Hundred and Fifty-nine Packages, 27 Fed. Cas. 286, 290.

Seizure, probable cause for.- To constitute probable cause there must have been substantial reason for believing vessel to have been, wholly or in part, an American vessel, within description of act, or hired or employed by Americans, or sold for purpose of carrying on trade prohibited, p. 121.

Cited in The George, 1 Mason, 27, F. C. 5,328, holding sufficient circumstances which warrant reasonable suspicion of illegal conduct; Burke v. Trevitt, 1 Mason, 102, F. C. 2,163, where officer of

revenue, seizing vessel under probable cause, held liable only for ordinary neglect; The Ship La Manche, 2 Sprague, 224, F. C. 8,004, holding probable cause to be excuse, although vessel acted involuntarily, and was misled by mistakes of revenue officers of captor's government; Williams v. Delano, 155 Mass. 14, 28 N. E. 1123, holding further pendency of libel for forfeiture of vessel to be bar to action of conversion against captor. Cited approvingly, but without particular application in The Marianna Flora, 3 Mason, 123, F. C. 9,080, and Shattuck v. Malley, 1 Wash. 247, F. C. 12,714.

Measure of damages for illegal seizure is actual prime cost of vessel and cargo, with interest thereon, including insurance actually paid, and such expenses as necessarily inured in bringing vessel into port, p. 125.

Rule applied in Manro v. Almeida, 10 Wheat. 486, 6 L. 372, holding further that damages are decreed against person of libellant; The Scotland, 105 U. S. 36, 26 L. 1005, holding that if cargo has no market value in place of shipment, measure is price at port of destination with fair deduction for profits and charges; The Schooner Lively and Cargo, 1 Gall. 322, F. C. 8,403, holding supposed loss of cargo not to be item of damages; in Dyer v. National etc., Co., 14 Blatchf. 489, F. C. 4,225, and in the Mary J. Vaughn, 2 Ben. 50, F. C. 9,217, ruling similarly in action for damages for loss of vessel in collision; also in Pacific Ins. Co. v. Conrad, 1 Bald. 143, F. C. 10,647, sustaining right of holder of goods on respondentia bond, to recover for illegal seizure; The Propeller Galatea, 6 Ben. 262, F. C. 5,185, holding further that report of commission to assess damages should state items explicitly; The Aleppo, 7 Ben. 125, F. C. 158, holding that where contract price of cargo included expenses for drayage, charges for brokerage, and commissions and consul's certificates, they should be allowed as part of prime cost. Cited approvingly in discussion of general subject in Malley v. Shattuck, 3 Cr. 489, 2 L. 508.

Defect apparent on face of report assessing damages is not cured by failure of party to except to it, p. 125.

Cited to same effect in Whitehead v. Perie, 15 Tex. 15, as to account of auditor, which failed to state items as required by statute. Miscellaneous citations.- Cited in Price v. Thornton, 10 Mo. 138, on point that owners of vessel are liable for tortious acts of master, unless they are acts of piracy. Cited erroneously in Turley v. Dreyfus, 33 La. Ann. 887.

2 Cr. 126, 2 L. 229, CAPRON v. VAN NOORDEN

Jurisdiction of United States courts.- Circuit Court has not jurisdiction where record does not show affirmatively that plaintiff is an alien or a citizen of a particular State, p. 126.

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A number of citations approve and apply this principle: Brown v. Keene, 8 Pet. 116, 8 L. 886, holding insufficient, allegation that party is "resident of Louisiana; " Bank of U. S. v. Moss, 6 How. 39, 12 L. 335, holding, however, that where declaration contains special and common counts, and jurisdiction is not apparent as to special counts, if common counts are sustained court will not set aside judgment unless objection made during trial; dissenting opinion, Marshall v. B. & O. R. R. Co., 16 How. 340, 14 L. 964, majority holding sufficient, averment that "defendants are a body corporate created by legislature of Maryland; " Börs v. Preston, 111 U. S. 263, 28 L. 422, 4 S. Ct. 412, holding alienage not presumable from mere fact that party is consul in this country of foreign government; Stuart v. Easton, 156 U. S. 47, 39 L. 341, 15 S. Ct. 268, holding insufficient, allegation that plaintiff is a citizen of London, England;" Brown v. Noyes, 2 Wood. & M. 80, F. C. 2,023, wherė court held to have prima facie jurisdiction where diverse citizenship alleged; Parkhurst v. Kinsman, 3 Wood. & M. 174, F. C. 10,761, holding insufficient, allegation that party is "commorant" in a State; Berlin v. Jones, 1 Woods, 639, F. C. 1,343, holding averment that defendant is citizen of Southern District of Alabama, equivalent to averment that he is citizen of State of Alabama; Donaldson v. Hazen, Hemp. 424, F. C. 3,984, holding further that the record must show one of parties to be citizen of State where action brought; Speigle v. Meredith, 4 Biss. 126, F. C. 13,227, holding insufficient, an averment that residence of some of defendants is unknown; Fideliter v. United States, 1 Sawy. 156, 1 Abb. (U. S.) 579, F. C. 4,755, holding that where seizure of vessel is jurisdictional fact, it must be alleged; also in Commissioners' Court v. Thompson, 18 Ala. 697, holding that in order to establish jurisdiction of a County Court of roads, it must appear affirmatively that road is within county; dissenting opinion, Ex parte Holman, 28 Iowa, 156, on point that consent cannot confer jurisdiction, majority holding that mandamus is not in nature of a new and original action, but ancillary to an original action; Ingraham v. Arnold, 1 J. J. Marsh. 407, as to averment of jurisdictional facts where jurisdiction of court special and limited; Beebe v. Armstrong, 11 Mart. (O. S.) 441, as to averments in petition for removal of cause; Klein v. Pillsbury, 29 La. Ann. 790, applying principle in holding that where statute prescribes form of warrant any other form is of no effect; North River Steamboat Co. v. Hoffman, 5 Johns. Ch. 303, holding that cause cannot be removed to Circuit Court where some of parties, plaintiffs and defendants respectively, are citizens of same State; Myers v. Berry, 3 Okl. 618, 41 Pac. 582, holding jurisdiction of subject-matter is determined from allegations. The principal case has also been cited in the following cases discussing the general subject. Dred Scott v. Sandford, 19 How. 402, 430, 15 L. 699, 711; dissenting opinion, Salisbury v. State, 6 Conn. 106; Wandling v. Straw, 25 W. Va. 700.