3. This court expresses no opinion as to the validity or invalidity of the
writ of error in this case. Miller v. Texas, 535.

PRINCIPAL AND AGENT.

See EJECTMENT, 1, 2.

PROMISSORY NOTE.

In an action by the payee of a negotiable promissory note against the
maker, evidence is admissible to show a parol agreement between the
parties, made at the time of the making of the note, that it should not
become operative as a note until the maker could examine the prop-
erty for which it was to be given, and determine whether he would
purchase it. Burke v. Dulaney, 228.

PUBLIC LAND.

See TIDAL LAND, 3, 4, 5, 6.

PUBLIC POLICY.

See STATUTE, A.

RAILROAD.

See DAMAGES, 1, 2;

JURISDICTION, A, 3;

TAX AND TAXATION, 4, 5, 6.

RECEIVER.

1. A receiver of a railroad, appointed with authority "to make all con-
tracts that may be necessary in carrying on the business of said rail-
road, subject to the supervision of this court," has no authority to
make a lease for a term of general offices, without authority from the
court, and to bind his successors and the property therefor for the
term, without direction from or sanction by the court. Chicago De-
posit Vault Co. v. McNulta, 554.

2. The facts that the receiver's accounts showed, monthly, the payment of
the rent under such a lease, and that that rent was reasonable, and
that the accounts as rendered were passed by the master and reported
to and approved by the court, do not amount to a sanction of the lease
for the term. Ib.

REMOVAL OF CAUSES.

Under the act of March 3, 1887, c. 373, corrected by the act of August 13,
1888, c. 866, (as under earlier acts,) one of several defendants, being
a citizen of the same State as a plaintiff, cannot remove a cause from
a state court into the Circuit Court of the United States upon the
ground of prejudice and local influence between himself and the other
defendants. Hanrick v. Hanrick, 192.

VOL. CLIII-46

See COSTS.

STATUTE.

A. GENERALLY.

1. The council of the legislature of the Territory of New Mexico which
took part in the passage of the act approved March 14, 1884, author-
izing the building of a penitentiary, and of the act approved March
29, 1884, to provide for the building of a capitol, having been recog-
nized by the governor of the Territory, and by the secretary of the
Territory, and by the House of Representatives of the Territory, and
it further appearing that the objections to its organization now made
were brought to the attention of Congress, and that that body took no
action on the subject, and the courts of the Territory having adjudged
that those statutes were duly enacted; Held, That considerations of
public policy forbid this mode of attacking the validity of officers de
facto, whatever defects there may have been in the legality of their
appointment or election. Lyons v. Woods, 649.

2. The allegations of this bill make no such case for interposition as
would justify the courts in going behind the enrolled bills, as depos-
ited with the secretary of the Territory, and declaring them invalid
because some of the members of the council were seated without cer-
tificates of election. Ib.

SUNDAY.

Sunday is a non-judicial day which does not interrupt the continuity of a
term of court. United States v. Shields, 88.

TAX AND TAXATION.

1. No one can be permitted to go into a court of equity to enjoin the col-
lection of a tax, until he has shown himself entitled to the aid of the
court by paying so much of the tax assessed against him as it can
be plainly seen he ought to pay. Northern Pacific Railroad Co. v.
Clark, 252.

2. State Railroad Tax Cases, 92 U. S. 575, and National Bank v. Kimball,
103 U. S. 732, affirmed and followed on this point. b.

3. The Northern Pacific Railroad Company, having accepted the provisions
of the act of Dakota of March 7, 1889, c. 107, became liable thereby
to pay the designated percentage of its gross earnings in lieu of taxes
for the year 1889, which liability was not discharged by the subse-
quent repeal of the gross earnings act of 1889; and, having failed to
make that payment, or to make a tender of what was due under one
or the other modes of taxation, it is not entitled to relief in equity to
enjoin the enforcement of a tax upon its property as upon the prop-
erty of individuals in the counties in which the property is situated.
Ib.

4. In 1848 the legislature of Tennessee had, under the constitution of the
State of 1834, then in force, power to grant to the Mobile and Ohio
Railroad Company the exemption from taxation which was granted
to it by the eleventh section of the act of January 28, 1848, incorpo-
rating it in Tennessee, in the following terms: "That the capital
stock of said company shall be forever exempt from taxation, and the
road, with all its fixtures and appurtenances, including workshops,
warehouses, and vehicles of transportation, shall be exempt from tax-
ation for the period of twenty-five years from the completion of the
road, and no tax shall ever be laid on said road or its fixtures which
will reduce the dividends below eight per cent." Mobile & Ohio Rail-
road Co. v. Tennessee, 486.

5. Under the provisions of that section the capital stock of the company
is forever exempt from taxation during the existence of the corpora-
tion; the road, fixtures, etc., were exempt for twenty-five years after
the completion of the road, which term has now expired; and now
they can be taxed only when the net earnings of the road are more
than sufficient to pay to the stockholders, on the present basis of its
capital, a dividend of eight per cent a year. Ib.

6. In sustaining the validity of the exemption, the court must not be un-
derstood as holding that the railroad company has the right, in its
discretion, to issue hereafter additional capital stock, or to increase
its bonded indebtedness, even for legitimate purposes, and have the
same taken into consideration upon the question of its liability

for taxation under the eight per cent dividend clause of its charter.
Ib.

See CONSTITUTIONAL LAW, 19;
JURISDICTION, A, 3.

TIDAL LAND.

1. The grant to the town of Huntington, made by the Governor General
under the Duke of York, on the 30th of November, 1666, and con-
firmed by Governor General Dongan in 1688, and again confirmed,
with a change in description, by Governor General Fletcher, in 1694,
operated to convey to the grantee the lands under tide water in Hun-
tington Bay, as defined by a line drawn from Lloyd's Neck to Eaton's
Neck; and any title to such lands under water which came to the
State of New York, was ceded to the trustees of the town by the State,
by the act of its legislature of May 10, 1888, c. 279. Lowndes v. Hun-
tington, 1.

2. In reaching this conclusion this court follows the settled rules of deci-
sion in the courts of New York relating to the form of the action, the
title to the submerged lands, and the special defences set up in this
Ib.

case.

3. Scrip or certificates for public land, issued under the act of April 5,
1872, c. 89, 17 Stat. 649, "for the relief of Thomas B. Valentine," can-
not be located on tide land in the State of Washington, covered and
uncovered by the flow and ebb of the tide. Mann v. Tacoma Land
Co., 273.

4. The general legislation of Congress in respect to public lands does not
extend to tide lands. Ib.

5. This court cannot take judicial notice of the nature and extent of tide
lands or mud flats. Baer v. Moran Bros. Co., 287.

6. Land alternately covered and uncovered by the tide is strictly within
the description of tide lands, and is covered by the settled rule in
respect to such lands.

Ib.

7. Mann v. Tacoma Land Company, ante, 273, followed. Ib.

TRADE-MARK.

See JURISDICTION, A, 1.

TRESPASS DE BONIS ASPORTATIS.

1. A count in trespass de bonis asportatis, for the taking and detaining of
personal property, can only be supported on the theory that plaintiff
was either its owner, or entitled of right to its possession at the time
of the trespass complained of. Wilson v. Haley Live Stock Co., 39.
2. In an act of trespass de bonis asportatis the plaintiff cannot recover as
upon a count for money had and received, at least without an amend-
ment of the complaint. Ib.

USURY.

1. The statutes of New Mexico, Compiled Laws 1884, §§ 1786-1738, do
not permit the receiving of usurious interest by way of, or under the
guise of discount, commission, agency, or other subterfuge. McBroom
v. Scottish Mortgage and Land Investment Co., 318.

2. Those statutes make void a contract of loan providing for usurious
interest only as to the interest in excess of what the statute allows.
lb.

3. The limitation of three years, under the statutes of New Mexico, within
which the borrower may sue for double the amount of usurious in-
terest collected and received from him does not commence to run, and
consequently the right of action therefor does not accrue, until the
lender has collected or received more than the original debt with in-
terest. lb.

VENDOR'S LIEN.

1. The courts of the United States enforce vendor's and grantor's liens,
if in harmony with the jurisprudence of the State in which the action
is brought. Slide & Spur Gold Mines v. Seymour, 509.

2. It being conceded that a vendor's lien is recognized in Colorado, such
a lien will be recognized and enforced in a Federal court in that Dis-
trict. Ib.

3. On the contracts in this case, set forth in the opinion of the court, and
the circumstances attending the making of them as therein detailed,
this court holds that the plaintiffs below retained a vendor's lien upon
their mining property in Colorado which they conveyed to the defend-
ants below, and affirm the decree of the court below to that effect.
lb.

WARRANT.

See CRIMINAL LAW, 16, 17.

WILL.

1. Under a will, by which the testator devises and bequeathes to his wife
"all my estate, real and personal, of which I may die seized, the same
to be and remain hers, with full power, right and authority to dispose
of the same as to her shall seem most meet and proper, so long as she
shall remain my widow, upon the express condition, however, that if
she should marry again, then it is my will that all of the estate herein
bequeathed, or whatever may remain, should go to my surviving
children, share and share alike," the widow has power during widow-
hood to convey to third persons an estate in fee simple in his lands.
Roberts v. Lewis, 367.

2. Giles v. Little, 104 U. S. 291, overruled; and Little v. Giles, 25 Nebraska,
313, followed.

Ib.

WRIT OF ERROR.

See JURISDICTION, A, 4.