146 U. S. 140-153

Notes on U. S. Reports.

248

Public lands.- Decree annulling patent is sufficiently supported by showing of patentee's fraud in obtaining survey, p. 130.

146 U. 8. 140-153, 36 L. 917, MATTOX v. UNITED STATES. Appeal.— Ruling on motion for new trial is not reviewable, p. 147. Approved in Felton v. Spiro, 78 Fed. 581, 583, 47 U. S. App. 402, following rule; Spiro v. Felton, 73 Fed. 95, denying new trial in spite of weight of evidence when there is evidence making it improper to direct verdict; Hughey v. Sullivan, 80 Fed. 76, State statute prohibiting new trial because of smallness of verdict inapplicable to Federal courts.

Distinguished in Haws v. Victoria Copper Min. Co., 160 U. S. 813, 40 L. 439, 16 S. Ct. 286, holding discretion of lower court refusing new trial cannot be controlled.

New trial is not allowable on statement of single juror as to misconduct known only to him; aliter if known to others, p. 148.

Approved in Wester v. Hedberg, 68 Minn. 435, 71 N. W. 617, following rule; Pelzer Mfg. Co. v. Hamburg, etc., Ins. Co., 71 Fed. 830, testimony of jurors allowed in equity to correct clerical mistake in verdict; In re Merriman's Appeal, 108 Mich. 464, 66 N. W. 376, verdict not impeachable by affidavit of juror as to extraneous influences; Rush v. St. Paul City Ry., 70 Minn. 11, 72 N. W. 735, affidavit of juror as to matters occurring outside of jury-room admissible to impeach verdict; Hamburg-Bremen F. Ins. Co. v. Pelzer Mfg. Co., 76 Fed. 482, 42 U. S. App. 123, and Peters v. Fogarty, 55 N. J. L. 388, 26 Atl. 855, holding testimony of jurors admissible to show that by inadvertence foreman misstated verdict; United States v. Biena, 8 N. Mex. 102, 42 Pac. 71, affidavit of juror that some of jurors had stated that witness who later confessed perjury was reliable not ground for new trial where other evidence of guilt.

Jury, in capital cases, must pass upon case free from external causes tending to disturb sound judgment, p. 149.

Approved in United States v. Spencer, 8 N. Mex. 671, 47 Pac. 716, new trial granted where jury separated and visited saloons. New trial. Communications with third persons or witnesses will invalidate verdict, unless proven harmless, p. 150.

Approved in Platt v. Threadgill, 80 Fed. 193, equity has jurisdiction to enjoin judgment based on verdict vitiated by misconduct of jury; dissenting opinion in Territory v. Edie, 7 N. Mex. 191, 193, 34 Pac. 48, 49, majority refusing new trial where juror had officer write verdict as directed; United States v. Swan, 7 N. Mex. 815, 316, 34 Pac. 535, new trial granted where jury rendered sealed defective verdict and separated, and later returned other verdict In proper form; United States v. Spencer, 8 N. Mex. 670, 47 Pac.

716, burden on prosecution to verdict not prejudiced where affl davits show misconduct.

Distinguished in Territory v. Edie, 7 N. Mex. 184, 185, 186, 188, 189, 190, 34 Pac. 46, 47, 48, sustaining verdict where after arriving at conclusion juror had officer write verdict as directed; People v. Ritchie, 12 Utah, 194, 195, 42 Pac. 212, 213, verdict cannot be impeached by affidavit of juror under Utah statute.

New trial ordered where bailiff read to jury account in newspaper prejudicial to defendant, p. 151.

Appeal.- Exclusion of affidavits of jurors' misconduct renders ruling on motion for new trial reviewable, p. 147.

Approved in Territory v. Leary, 8 N. Mex. 183, 43 Pac. 689, obiter. Homicide.- Dying declarations are admissible as to fact of homicide and person by whom committed, p. 151.

Approved in State v. Ashworth, 50 La. Ann. 100, 23 So. 272, following rule.

Homicide. To be admissible as dying declarations statements must have been made in face of impending death, p. 151.

Approved in Carver v. United States, 160 U. S. 555, 40 L. 534, 16 S. Ct. 388, admitting statement made but six months prior to death.

Homicide.- Dying declarations must be received with caution, p. 152.

Approved in Mattox v. United States, 156 U. S. 244, 39 L. 411, 15 S. Ct. 340, and Kirby v. United States, 174 U. S. 61, 19 S. Ct. 579, obiter; dissenting opinion in Cline v. State, 36 Tex. Cr. 359, 37 S. W. 725, majority holding testimony on preliminary examination inadmissible where witness dead. See note in 61 Am. St. Rep. 877. Homicide.- New trial will be granted for refusal to admit dying declaration that accused was not guilty, p. 152.

146 U. S. 153-162, 36 L. 922, ROBY v. COLEHOUR.

Courts. To give Supreme Court jurisdiction record must show Federal question necessarily denied, p. 159.

Approved in Bushnell v. Crooke Min. Co., 148 U. S. 690, 37 L. 613, 13 S. Ct. 774, following rule; Powell v. Brunswick Co., 150 U. S. 439, 37 L. 1136, 14 S. Ct. 168, and Newport Light Co. v. Newport, 151 U. S. 537, 38 L. 262, 14 S. Ct. 432, Federal court determines for itself whether jurisdiction exists to review decision of State court; Chicago, etc., R. R. v. Chicago, 166 U. S. 232, 41 L. 983, 17 S. Ct. 583, defendant need not specially claim Federal right by answer if claim appear of record; Green Bay, etc., Canal Co. v. Patten Paper Co., 172 U. S. 68, 19 S. Ct. 101, no particular form of words necessary to assert claim of Federal rights in State court; Dewey v. Des Moines, 173 U. S. 199, 19 S. Ct. 381, statute au

thorizing real estate assessment and imposing personal liability upon non-resident owner, invalid.

Bankruptcy.- Purchaser at assignee's sale takes only such title as bankrupt had, p. 161.

Approved in Coryell v. Klehm, 157 Ill. 480, 41 N. E. 869, assignes in bankruptcy takes estate subject to all equities against it in hands of bankrupt.

Bankrupt will not be discharged from declaration of trust, by purchaser at assignee's sale, of property charged, p. 161.

Courts.- Question as to relationship between bankrupt and purchaser at assignee's sale is not Federal, p. 161.

Approved in Roby v. Title Guarantee, etc., Co., 166 Ill. 341, 46 N. E. 1110, objections to competency of receiver must be made in proceedings wherein appointed.

146 U. S. 162-179, 36 L. 925, MORLEY v. LAKE SHORE, ETC., RY.

Constitutional prohibition against impairing contract obligations is not violated by reduction of interest on judgments, p. 167.

Approved in Campbell v. Iron-Silver Min. Co., 83 Fed. 646, 55 U. S. App. 154, Colorado act allow one instead of two new trials in ejectment valid as to pending action; Day v. Madden, 9 Colo. App. 469, 48 Pac. 1055, repeal of statute allowing attachments in suits on overdue promissory notes valid as to attachments already levied; Smith v. Broderick, 107 Cal. 651, 48 Am. St. Rep. 172, 40 Pac. 1036, obiter.

Courts.- Construction of State statute is solely for State court; Supreme Court determines constitutionality, p. 166.

Approved in Forsyth v. Hammond, 166 U. S. 519, 41 L. 1100, 17 S. Ct. 670, Indiana decision, defining boundaries of municipality, binding on Federal court; Sioux City R. R. v. Trust Co., 173 U. S. 107, 19 S. Ct. 344, following Iowa decision holding debts of corporations in excess of powers voidable; Moran v. Hagerman, 69 Fed. 430, following rule in Nevada decision; Indianapolis v. Navin, 151 Ind. 158, 51 N. E. 81, 41 L. R. A. 344, State law regulating streetcar fares valid.

Interest is subject for contract, but in absence of contract de pends upon State law, p. 168.

Approved in Wyoming Nat. Bank v. Brown, 7 Wyo. 499, 75 Am. St. Rep. 937, 53 Pac. 291, following rule; Bettman v. Cowley, 19 Wash. 209, 211, 53 Pac. 54, 55, 40 L. R. A. 817, 818, contractual obligations, when merged into judgment, are enforceable (but see dissenting opinion in 19 Wash. 219, 53 Pac. 57, 40 L. R. A. 820).

Interest. State legislature is sole judge as to whether cause of action merged into judgment shall bear interest, p. 168.

Approved in Moran v. Hagerman, 69 Fed. 429, following rule; United States v. Barber, 74 Fed. 485, 41 U. 8. App. 424, judgments of Court of Claims against government do not bear interest; dissenting opinion in Watkins v. Glenn, 55 Kan. 446, 40 Pac. 324, majority holding statute extending time for redemption invalid as to mortgages made prior to passage; Second Ward Sav. Bank v. Schranck, 97 Wis. 271, 73 N. W. 38, 39 L. R. A. 577, obiter.

Distinguished in Greenwood v. Butler, 52 Kan. 430, 34 Pac. 969, 22 L. R. A. 467, judgments rendered prior to act extending redemp tion not affected by such act.

Constitutional law.- Judgment is not contract within meaning of prohibition against impairing obligation, p. 169.

Approved in Wyoming Nat. Bank v. Brown, 7 Wyo. 501, 75 Am. St. Rep. 938, 53 Pac. 292, following rule; Fisher v. Fielding, 67 Conn. 117, 34 Atl. 720, 32 L. R. A. 243, and n., obiter.

Distinguished in Watkins v. Glenn, 55 Kan. 433, 40 Pac. 320, statute extending time for redemption invalid as to mortgages made prior to passage.

Constitutional law.- Legislative discretion, as to interest judgment shall bear, is independent of contract, p. 171.

Approved in Barnitz v. Beverly, 163 U. S. 129, 41 L. 100, 16 S. Ct. 1046, Kansas statute, extending time for redemption, invalid as to prior mortgage (reversing 55 Kan. 472, 49 Am. St. Rep. 262, 42 Pac. 727, 31 L. R. A. 76); State v. Gilliam, 18 Mont. 99, 104, 109, 44 Pac. 395, 396, 397, 399, 31 L. R. A. 723, 724, 726, and n., statute extending period of redemption is valid as to mortgages made prior to passage.

Distinguished in Watkins v. Glenn, 55 Kan. 431, 40 Pac. 319, statute extending time for redemption invalid as to mortgages made prior to passage.

Constitutional law. Statute changing rate of interest on prior judgment does not deprive of property, p. 171.

Approved in Central Land Co. v. Laidley, 159 U. S. 112, 40 L 95, 16 S. Ct. 83, following rule; State v. Wilson, 121 N. C. 457, 28 S. E. 557, "due process of law" does not imply regular hearing in court, but merely fair hearing according to modes of proceeding applicable to case.

Miscellaneous. Cited in Remington Paper Co. v. Watson, 178 U. S. 451, 19 S. Ct. 459, but application doubtful.

146 U. S. 179-183, 36 L. 933, HARDEE v. WILSON.

Appeal. Where decree is joint all parties defendant must jola in appeal, p. 180.

Approved in Davis v. Mercantile Trust Co., 152 U. S. 593, 38 L. 564, 14 S. Ct. 695, Sipperley v. Smith, 155 U. S. 89, 39 L. 80, 15 S. Ct. 16, Missouri, etc., Ry. v. Evans, 175 U. S. 723, 20 S. Ct. 1023, and Jones v. Stewart, 37 Fla. 372, 19 So. 658, all following rule: In

146 U. S. 183-195

Notes on U. S. Reports.

252

re Humes, 149 U. S. 193, 37 L. 699, 13 S. Ct. 836, mandamus will not lie to Circuit Court dismissing appeal for non-joinder of one defendant; Inglehart v. Stansbury, 151 U. S. 73, 38 L. 77, 14 S. Ct. 239, if there is no summons or severance appeal must join all defendants; Beardsley v. Arkansas, etc., Ry., 158 U. S. 127, 39 L. 921, 15 S. Ct. 788, in equity all parties to joint decree must be Joined on appeal; Wilson v. Kiesel, 164 U. S. 252, 41 L. 423, 17 S. Ct. 125, in joint decree against several stockholders all entitled to appeal; Humes v. Third Nat. Bank, 54 Fed. 920, 13 U. S. App. 86, sureties on supersedeas bond must join principal and other defendants on appeal; The City of Naples, 69 Fed. 795, 32 U. S. App. 613, person may be made parties on appeal in admiralty cause who properly apply within six months; The Glide, 72 Fed. 202, 25 U. S. App. 636, in decree against vessel sureties for its release not necessary parties to appeal, though bound by decree; Louisville, etc., Ry. v. Pope, 74 Fed. 5, 46 U. S. App. 25, where decree is separate all parties need not be joined in appeal; Farmers' Loan, etc., Co. v. Longworth, 76 Fed. 610, 48 U. S. App. 75, insolvent corporation necessary party to appeal from decree ordering receiver to pay certain judgments; Illinois Trust, etc., Bank v. Kilbourne, 76 Fed. 887, 44 U. S. App. 663, receiver necessary party to appeal from decree against insolvent corporation; Farmers' Loan, etc., Co. v. McClure, 78 Fed. 212, 49 U. S. App. 49, if necessary party refuses to join, appeal may be taken without him; Dodson v. Fletcher, 78 Fed. 215, 49 U. S. App. 63, and American Loan, etc., Co. v. Clark, 83 Fed. 233, 49 U. S. App. 576, all parties to suit, though defaulting in appearance, but be given opportunity on appeal; St. Louis, etc., Elev. Co. v. Nichols, 91 Fed. $33, decree against mortgagor and grantee assuming payment is joint; Hook v. Mercantile Trust Co., 95 Fed. 49, failure to join necessary parties in appeal is jurisdictional; Grand Island, etc., R. Co. v. Sweeney, 95 Fed. 398, subcontractors necessary parties to appeal from decree, holding them liable with principal contractors and company; Voorhees v. John T. Noye Mfg. Co., 151 U. S. 137, 38 L. 102, 14 S. Ct. 295, and West v. Irwin, 54 Fed. 420, 9 U. S. App. 547, obiter.

Distinguished in Aiken v. Smith, 54 Fed. 896, 2 U. S. App. 445, in admiralty master of libelled vessel may appeal alone, though owner and surety appear of record; Mercantile Trust Co. v. Kanawha, etc., Ry., 58 Fed. 12, 14, 16 U. S. App. 37, defunct railroad, having no further interest in proceeds of foreclosure sale, not necessary party on appeal

On appeal from decree against grantors and grantee declaring deeds void, all must join, p. 180.

Approved in Minor v. Wilson, 58 Fed. 617, following rule.

146 U. S. 183-195, 36 L. 934, COOK v. HART.

Federal courts cannot interfere to relieve one taken by force from one State to another and held under legal process, p. 192.