Denied in Mays v. Cockrum, 57 Tex. 353, holding estate of deceased surety upon joint obligation, bound in same manner as if obligation were joint and several.

Injunction.—Where statute does not require bonds to be joint and several, fair intendment is that either was authorized and that court had right to direct which should be given; therefore, where estate of a co-obligor, on a joint injunction bond, was discharged at law, because of his death, it could not be pursued in equity, pp. 145, 146.

Approved in Baars v. Gordon, 21 Fla. 35, where words of sev eralty were not employed in statute, a joint bond is a compliance with the law; Wood v. Fisk, 63 N. Y. 249, 20 Am. Rep. 531, surviving surety alone liable on undertaking given upon appeal; Davis v. Van Buren, 72 N. Y. 589, to the same point. Cited in Ferguson v. Dent, 29 Fed. 7, arguendo, whether court has authority, after appeal, to allow amendment to supersedeas bond.

Distinguished in Wilson v. Fridenberg, 22 Fla. 148, holding husband liable at law on joint bond executed by himself and by his wife as executrix of former husband's will.

Equity. Where equities are clearly equal, an estate not liable at law will not be held liable in equity, p. 146.

15 Wall. 146-151, 21 L. 121, MARSHALL v. VICKSBURG. Forfeitures.- Equity never, under any circumstances, lends its aid to enforce a forfeiture or penalty or anything in nature of either, D. 149.

Cited and rule followed in Farmers, etc., Nat. Bank v. Dearing, 91 U. S. 35, 23 L. 199, holding, under act of June 3, 1864, providing forfeiture for usury, the interest may be forfeited, but not the entire debt; Jones v. Guaranty, etc., Co., 101 U. S. 628, 25 L. 1035, holding mortgage for future advances valid, where the money was received and applied to benefit of corporation, with knowledge and acquiescence of the stockholders; Little Rock Granite Co. v. Shall, 59 Ark. 408, 27 S. W. 563, reversing decree of forfeiture rendered by court of equity, holding forfeiture waived by acts of party entitled thereto; Andrews v. Central Nat. Bank, 77 Md. 29, 25 Atl. 917, dismissing appeal from decision refusing to reinstate an action to recover penalties and forfeitures under act of Congress; Scottish Mortgage, etc., Co. v. McBroom, 6 N. Mex. 587, 30 Pac. 863, under statute imposing penalty of double amount of usurious interest charged, action would not lie until payment of principal and interest; Dexter, Horton & Co. v. Long, 2 Wash. 440, 26 Am. St. Rep. 869, 27 Pac. 272, where mortgage was executed by president and secretary of corporation, who were two of its three trustees, and corporation received all benefits of mortgage, defect in not being

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authorized by board of trustees regarded as cured; Craig v. Hukill, 37 W. Va. 523, 16 S. E. 364, equity will not divest estate by enforcing forfeiture for breach of condition subsequent. Cited and rule approved in Bucklen v. Hasterlick, 155 Ill. 429, 40 N. E. 563, arguendo, holding judgment permitting vendor to retain earnest money, where purchaser refused to accept a good title, did not work a forfeiture; Renfroe v. Colquitt, 74 Ga. 625, statute should be construed so as to prevent forfeiture.

Pleading. Where there is a single demurrer, it must be wholly sustained or overruled, p. 149.

Pleading.- Error in sustaining a single demurrer in part, and overruling it in part, is conclusively waived by both parties, where complainant amends bill and defendant answers, p. 149.

Cited and principle applied in Campbell v. Haverhill, 155 U. S. 613, 39 L. 281, 15 S. Ct. 218, holding exception to ruling of court waived by proceeding to trial; Darracott v. Chesapeake & Ohio R. R., 83 Va. 290, 5 Am. St. Rep. 267, 2 S. E. 512, objection to ruling upon demurrer holding declaration bad is waived by amendment and trial; Harris v. Norfolk, etc., R. R., 88 Va. 562, 14 S. E. 536, to the same point.

Contracts. Under contract of city to pay indemnity, if individual's right to collect wharfage was suspended, interruption of navigation by the Rebellion was not such a suspension, p. 150.

Municipal corporations.- Where a person, having a wharf lease from a city, drew up and urged the adoption of an ordinance, he cannot claim indemnity under his lease for alleged injury caused by operation of ordinance, p. 150.

Municipal corporations.- Provision of wharf lease from a city, that if right to collect wharfage was interfered with permanently property should revert, held not affected by ordinance imposing charge on boats touching at landing, nor by quarantine embargo, laid with lessee's consent, pp. 150, 151.

15 Wall. 151-165, 21 L. 123, SHUTTE v. THOMPSON.

Deposition not taken in conformity with all regulations of act of Congress of 1789 governing it may be refused admission as evidence, p. 159.

Followed in Sage v. Tauszky, 21 Fed. Cas. 147, granting motion to suppress deposition not taken in conformity with provisions of statute; Travers v. Jennings, 39 S. C. 412, 17 S. E. 850, where sealing of deposition by notary was not sufficiently authenticated, de position was improperly received in evidence.

Deposition. A party may waive any provision, either of contract or statute, intended for his benefit; therefore, where a party practi

cally consented that a deposition should be taken without conforming to regulating act of Congress, he cannot object to its admission in evidence, p. 159.

Cited and holding approved in Doane v. Glenn, 21 Wall 35, 22 L. 476, objections withheld until trial was in progress deemed to have been waived; Howard v. Stillwell, etc., Mfg. Co., 139 U. S. 205, 35 L. 150, 11 S. Ct. 502, by waiving copy of interrogatories and consenting to issue of commission, and adding cross-interrogatories, defendant waived objections after commencement of trial; Smithmeyer v. United States, 147 U. S. 358, 37 L. 200, 13 S. Ct. 326, plaintiffs could waive additional method of adjustment of claim against the government for plans and drawings; Northern Pacific R. R. v. Urlin, 158 U. S. 274, 39 L. 980, 15 S. Ct. 841, where defendant, represented by counsel, took part in examination, thereby waived any irregularity in taking deposition; In re Thomas, 35 Fed. 823, irregularity of taking deposition in continuous narrative form waived by appearance and cross-examination of adverse party; Mehlin v. Ice, 56 Fed. 20, 12 U. S. App. 305, a white man may waive treaty and statutory stipulations exempting him from the jurisdiction of Cherokee courts; Indianapolis Water Co. v. American Strawboard Co., 65 Fed. 536, where deposition was admitted in evidence without objection, attorney's fees will be allowed for services in taking deposition, although there may have been irregularities in the proceeding; Birmingham Union Ry. v. Alexander, 93 Ala. 135, 9 So. 526, where defendant filed cross-interrogatories without making any objection to sufficiency of preliminary affidavit he waived right to make objection to admission of deposition; Murray v. Larabie, 8 Mont. 213, 19 Pac. 576, where objections were withheld until progress of trial, they must be regarded as waived and deposition admitted; Barnhardt v. Smith, 86 N. C. 480, to the same point: Foster v. Henderson, 29 Or. 216, 45 Pac. 900, objection to method of taking deposition will not be entertained at trial.

Acknowledgment.- Certificate of clerk of District Court, and of judge, to deed of non-resident, held to entitle deed to be recorded under Virginia act of 1792, p. 162.

Evidence.- Reputation as to existence of particular facts is not generally admissible, though where existence of facts has been proved, aliunde, reputation is sometimes received to explain them, p. 163.

Approved in Hinds v. Keith, 57 Fed. 14, 13 U. S. App. 222, holding evidence to prove an objective fact by notoriety or reputation is inadmissible.

Taxation.- West Virginia having, in 1866, repealed chapter of Virginia code relating to sale of lands for non-payment of taxes, a sale made in 1860 could not be consummated after such repeal, and deed given subsequently was wholly void and inadmissible in evidence, pp. 163, 164.

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Denied in Forqueran v. Donnally, 7 W. Va. 144, holding title might be completed under act of October 7, 1863, which was in no manner repealed by act of February, 1866.

Appeal and error.- Error cannot be assigned for failure to give instructions not requested, p. 164.

Cited and rule followed in Mays v. Fritton, 20 Wall. 418, 22 L. 390, holding objection to jurisdiction of State court cannot be raised, for the first time, in the Supreme Court; Texas, etc., Ry. v. Volk, 151 U. S. 78, 38 L. 80, 14 S. Ct. 240, request for instructions cannot be presumed, but must affirmatively appear in the bill of exceptions; Backus v. Fort Street Union Depot Co., 169 U. S. 575, 42 L. 861, 18 S. Ct. 452, refusing to set aside judgment where no further instructions were asked; Williams v. Simons, 70 Fed. 44, 36 U. S. App. 16, objection that charge was too general is not valid; Chicago, etc., Ry. v. Healy, 86 Fed. 251, 57 U. S. App. 523, where instruction was correct as far as it went, no additional instructions being asked for, there was no error; Eastern Oregon Land Co. v. Cole, 92 Fed. 953, to the same point.

Miscellaneous.- Miscited in Renfroe v. Colquitt, 74 Ga. 625.

15 Wall. 165-177, 21 L. 142, DUNCAN v. JAUDON.

Trusts.- Cestui que trust may approve or reject an unauthorized Investment of trust funds by trustee, and by approval adopts the investment and waives breach of trust, pp. 171, 172.

Cited in Sayre v. Weil, 94 Ala. 474, 10 So. 548, 15 L. R. A. 546, nolding, where trustee applies trust funds in bank to satisfaction of his own debt to bank, the latter is liable, unless transaction is ratified by cestui que trusts.

Trusts. If trustees under a will, in making investments, depart from rule prescribed by testator, with the acquiescence of party in interest, and there is no interference by the court, right of action to the beneficiary for an illegal disposition of property thus substituted is not affected, p. 172.

Cited and principle applied in Partee v. Thomas, 11 Fed. 773, holding cestui que trust may recover original or substituted property, where trustee has abused trust; Fast v. McPherson, 98 Ill. 504, party taking real estate in trust for another from prior trustee cannot show that prior trustee held under illegal contract and parol evidence is admissible to show person whose name should have been inserted in declaration of trust.

Trusts. It is wrong for a trustee, under any state of circumstances, to pledge trust property in order to obtain money for his personal wants, p. 173.

Cited and principle applied in Nat. Bank v. Insurance Co., 104 U. &. 70, 26 L. 700, holding banker's lien will not lie against funds of

which depositor was trustee; Manhattan Bank v. Walker, 130 U. S. 278, 32 L. 963, 9 S. Ct. 523, holding agent had no authority to pledge trust fund as security for existing debt of a third party, and bank delivering up bonds for that purpose is liable; Supply Ditch Co. v. Elliott, 10 Colo. 333, 3 Am. St. Rep. 591, 15 Pac. 694, corporation, as trustee for stockholders, is liable upon stock wrongfully issued. Cited in Walker v. Manhattan Bank, 25 Fed. 253, 254, this case reversed in 130 U. S. 278, 32 L., 963, 9 S. Ct. 523. See 5 Dill. 88, note, F. C. 7,393.

Trusts. If a person receiving trust stocks as pledge for money loaned had actual or constructive notice that trustee was abusing his trust and applying proceeds to his own use, he will be compelled to account to cestui que trust, p. 175.

Cited and principle applied in National Bank v. Insurance Co., 104 U. S. 63, 26 L. 698, holding banker's lien will not lie against funds of which depositor was trustee; Thurber v. Cecil Nat. Bank, 52 Fed. 514, bank participating in breach of trust by agent is liable in a proceeding in equity; Breit v. Yeaton, 101 Ill. 270, where trust deed was on record purchaser took with notice of its contents; Otis v. Otis, 167 Mass. 247, 45 N. E. 737, person taking trust fund from original trustee, without consideration, is chargeable as trustee. whether he had notice of trust or not; Clark v. First Nat. Bank, 57 Mo. App. 286, bank having knowledge of trust character of deposit cannot appropriate it to pay individual debt of depositor; Hardy v. Citizens' Nat. Bank, 61 N. H. 40, bill in equity may be maintained against holder of notes belonging to ward, pledged by payee named therein as guardian; Gaston v. American Exch. Bank, 29 N. J. Eq. 103, where face of certificate of stock revealed trust, a person loan. ing money thereon for private use of trustee is accountable to cestui que trust. Cited in Peck v. Providence Gas Co., 17 R. I. 282, 23 Atl 967, 15 L. R. A. 647, and n., arguendo; also Caulkins v. Gas-Light Co., 85 Tenu. 696, 4 Am. St. Rep. 794, 4 S. W. 291. See also 3 Am. Dec. 690, note, and 42 Am. Rep. 169, note.

Distinguished in Cecil Nat. Bank v. Thurber, 59 Fed. 916, 8 U. S. App. 496, reversing S. C., 52 Fed. 514, and holding question of Jurisdiction not raised in principal case; Goodwin v. American Nat. Bank, 48 Conn. 565, where executor borrowed money of bank, pledging securities belonging to estate, bank was not liable, although money was appropriated to executor's personal use.

Trusts.- Party taking trust stock on pledge deals with it at hla peril, for there is no presumption of right to sell it, as in the case of an executor, p. 175.

Cited and approved in Marbury v. Ehlen, 72 Md. 217, 20 Am. St. Rep. 474, 19 Atl. 650, holding corporation liable for transfer of stock made by trustee without authority; Payne v. First Nat. Bank, 43 Mo. App. 383, where note disclosed upon its face that it was

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