INDEX.

ACTION.

1. Under §§ 2942 and 2943 of the Code of Alabama, of 1876, which provide for the bringing of a suit for the recovery of personal chattels in specie, and for the making of an affidavit by "the plaintiff, his agent or attorney," that the property sued for belongs to the plaintiff, and for the giving by the plaintiff of a bond for costs and damages, as prerequisites to the making of an order for the seizure of the property, an affidavit, in such a suit by the United States, in the Circuit Court of the United States, made by a special agent of the General Land Office, in which he swears, "to the best of his knowledge, information and belief," that the property sued for belongs to the United States, is sufficient. United States v. Bryant, 499.

2. Under § 1001 of the Revised Statutes of the United States, the United States are not required to give the bonds provided for by the Code of Alabama, as a condition precedent to the right to avail themselves of said provisions of that Code. Id.

See LOCAL LAW, 2;

PARTIES;

REMOVAL OF CAUSES, 2.

AFFIDAVIT.

See ACTION, 1;

UNITED STATES.

ALABAMA.

See ACTION.

ALIENAGE.

See CONSUL.

AMENDMENT.

See PARTIES, 2;

WRIT OF ERROR.

VOL. CXI-51

ANNUITY.

See DEVISE, 1;
EQUITY, 1;

LIEN.

APPEAL.

A plaintiff demanding judgment on a note for $7,500, recovered only $702; judgment being against him as to the remainder of the claim on matter of law. He appealed. The defendant took a cross-appeal. On motion to dismiss the cross-appeal for want of jurisdiction, Held, That it was incident to the plaintiff's appeal; and that appeal being sustained in part and overruled in part the whole cause was remanded. Walsh v. Mayer, 31.

See PRACTICE, 3.

BANK.

The rule that the relation between a bank and its general depositors is that of debtor and creditor, which was laid down in Marine Bank v. Fulton Bank, 2 Wall. 252, is affirmed and applied to deposits arising from collections on behalf of another bank, a correspondent. Phenix Bank v. Risley, 125.

See CONFISCATION, 1;

CORPORATION;

INTERNAL REVENUE, 3;
NATIONAL BANK.

BANKRUPTCY.

1. One hypothecating, to secure a debt due from himself, securities which had been pledged to him to secure the obligation of another, and failing to return them when such obligation is discharged, does not thereby create a debt by fraud, or in a fiduciary capacity, which is exempted by § 5117 Rev. Stat. from the operation of a discharge in bankruptcy. Hennequin v. Clers, 676.

2. A sale of real estate of a bankrupt by order of court free from the lien of a mortgage creditor is invalid, as to the creditor and as to the purpose of discharging his lien, unless he is made a party to the proceedings. Ray v. Norseworthy, 23 Wall. 128, affirmed. Factors' & Traders' Ins. Co. v. Murphy, 738.

3. In such case it is not sufficient to notify the person who holds the evidences of his debt, and claims to be his agent, if the record represents that person as acting for another party, and makes no mention of the mortgage creditor. Id.

4. The real estate of a bankrupt was sold by order of court free of encumbrances and purchased by A. One of the mortgages on the estate was given to secure four notes, of which at the time of the sale

A held two, and B held two. A and other mortgage creditors were made parties to the proceedings, but B was not made party. C held B's notes and claimed to represent him in the proceedings, but the record only showed C as acting for D. B brought suit to foreclose the mortgage as to his two notes, claiming that as to A's notes the lien was cut off by the purchase of the equity, and as to the rest of mortgage liens as well as to A's they were discharged by the sale. Held (1) that B had the right to a decree of foreclosure. (2) That this decree should be made for the benefit of all the mortgage creditors in the order of their priority, including A. (3) That the expenses of A for taxes, prior liens, improvements, &c., growing out of the former sale should be first paid out of the proceeds of the new sale. (4) That A should account for rents and profits if there were any. Id. See EVIDENCE, 2;

A writ of certiorari when applied for by a defendant is not a writ of right but discretionary with the court.

Ex parte Hitz, 776.

CLAIMS AGAINST THE UNITED STATES.

If a treasury agent for the collection of cotton, who was convicted by a military commission of defrauding the United States, and was sentenced to pay a fine, and paid the fine and was then released, consents after his release that the money may pass into the treasury, he cannot

maintain an action in the Court of Claims to recover it back on an implied contract to refund it, either on the ground that the fine was illegally imposed, or that it was paid under duress. Carver v. United States, 609.

COLLECTOR OF CUSTOMS.

See VESSEL.

COMMON CARRIER.

See DAMAGES, 2;

INSURANCE, 7.

CONFISCATION.

1. A proceeding under the confiscation acts of August 6th, 1861, 12 Stat. 319, and July 17th, 1862, 12 Stat. 589, for the purpose of confiscating a general deposit in a bank, which was directed against a specific lot of money, and a condemnation and sale under such proceedings, and a payment by the bank to the purchaser at the sale, are no defence to the bank in a suit by an assignee of the depositor for valuable consideration, claiming under an assignment made before the proceedings in confiscation. Phonix Bank v. Risley, 125.

2. The confiscation act of August 6th, 1861, was directed to the confiscation of specific property, used with the consent of the owner to aid the insurrection, and had no reference to the guilt of the owner, and could only apply to visible tangible property which had been so used. Id.

3. The 37th Admiralty Rule, in force before the passage of the confiscation acts provided a mode for attaching a debt in proceedings for its confiscation by giving notice to the debtor of the proceedings to charge the debtor with the debt and require him to pay it to the marshal or into court; and in the absence of such notice the District Court could obtain no jurisdiction over the debt, and could make no condemnation of it which would constitute a defence in an action by an assignee of the debt for a valuable consideration made before the proceedings in confiscation. Id.

CONFLICT OF LAW.

1. The decision of the highest court of a State, construing the Constitution of the State is not binding upon this court as affecting the rights of citizens of other States in litigation here, when it is in conflict with previous decisions of this court, and when the rights which it affects here were acquired before it was made. Carroll County v. Smith, 556. 2. Subject to the exclusive and paramount authority of the national government by its own judicial tribunals to determine whether persons held in custody by authority of the courts of the United States, or by

commissioners of such courts, or by officers of the general government acting under its laws, are so held in conformity with law, the States have the right, by their own courts, or by the judges thereof, to inquire into the grounds upon which any person, within their respective territorial limits, is restrained of his liberty, and to discharge him, if it be ascertained that such restraint is illegal, and this notwithstanding such illegality may arise from a violation of the Constitution and laws of the United States. Robb v. Connolly, 624.

See CONSTITUTIONAL LAW, B;

EXECUTOR AND ADMINISTRATOR, 1, 2;

HABEAS CORPUS;

OFFICER OF THE COURT, 2, 3.

CONSTITUTIONAL LAW.

A. OF THE UNITED STATES.

1. The constitutional grant of original jurisdiction to this court of all cases affecting consuls, does not prevent Congress from conferring original jurisdiction, in such cases, also, upon the subordinate courts of the Union. Börs v. Preston, 252.

2. In view of the practical construction put upon the Constitution by Congress and the courts in the statutes and decisions cited in the opinion, the court is unwilling to say that it is not within the power of Congress to grant to inferior courts of the United States jurisdic tion in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. Ames v. Kansas, 449.

3. A law authorizing the imposition of a tax or assessment upon property according to its value does not infringe that provision of the Fourteenth Amendment to the Constitution, which declares that no State shall deprive any person of property without due process of law, if the owner has an opportunity to question the validity or the amount of it, either before that amount is determined, or in subsequent proceeding for its collection. Hagar v. Reclamation District, 701. 4. When a contract is made with a municipal corporation upon the faith that taxes will be levied, legislation repealing or modifying the taxing power of the corporation, so as to deprive the holder of the contract of all adequate and efficacious remedy, is within the inhibition of the Constitution. Nelson v. St. Martin's Parish, 716.

5. On an appeal from a judgment ordering the issue of a mandamus to compel the collection of a tax to pay a judgment recovered against a municipal corporation, the appellate court may authorize an inquiry whether the judgment was founded upon a contract or a tort, with a view to determine the constitutional rights respecting it; but has no authority to re-examine the validity of the contract or the propriety of the original judgment, those questions having been finally adjudicated. Id.