Mandamus will issue to compel performance of ministerial duty by head of executive department, p. 319.

Approved in State v. Crawford, 28 Fla. 477, 10 So. 120, 14 L. R. A. 256, mandamusing secretary of State to seal and countersign appointment of United States senator; Larcom v. Olin, 160 Mass. 110, 35 N. E. 117, granting mandamus to secretary of State to, issue city charter; dissenting opinion in People v. Morton, 156 N. Y. 153, 50 N. E. 797, 41 L. R. A. 237, majority refusing mandamus to governor, as member of board, requiring performance of act; Thoreson v. Board of Examiners, 19 Utah, 28, 57 Pac. 177, denying right of officer to plead in mandamus that performance of act violates Constitution. See 31 Am. St. Rep. 299, note.

Mandamus issues to compel performance of existing duty; it confers no new authority, p. 319.

Approved in 31 Am. St. Rep. 295, 300, note.,

International law. As between nations, proprietary right in respect to individual's property is absolute, p. 323.

Treaty claimants cannot invoke principle of res judicata against government while controversy in fieri, p. 325.

Approved in La Abra Silver Min. Co. v. United States, 175 U. S. 459, 20 S. Ct. 174, holding government may withhold award paid upon fraudulent claim.

United States.- Inaction of Congress is not equivalent to direction, p. 326.

139 U. S. 326-331, 35 L. 179, HOFF v. IRONCLAD, ETC., CO. Patent may be interpreted in light of state of art at time of issue, p. 329.

Patent, which is but one of series of improvements, must be construed strictly and limited to device claimed, p. 330.

Approved in Vincent v. Rigby, 58 Fed. 374, holding Vincent weather-strip patent No. 381,166 not infringed by Seville patent No. 434,890; Vulcan Iron Works v. Smith, 62 Fed. 450, 15 U. 8. App. 577, holding Smith band-saw patent No. 442,645 not infringea by Kolfod patent No. 468,303; Strom Mfg. Co. v. Weir Frog Co., 83 Fed. 175, 54 U. S. App. 346, holding substitution of one material for another involves no invention.

139 U. S. 331-336, 35 L. 177, THE SYDNEY.

Appeal. Value of vessel libelled in admiralty determines jurisdiction on appeal, p. 334.

Approved in Wager v. Providence Ins. Co., 150 U. S. 111, 37 L. 1018, 14 S. Ct. 59, taking notice of former case where proceedings set up in answer; The Sydney, 47 Fed. 261, in statement of facts. Admiralty.— Right of appeal in action in rem is reciprocal, and where one party cannot appeal other cannot, p. 336.

139 U. S. 337-377

Notes on U. S. Reports.

1162

139 U. S. 337-342, 35 L. 181, WORTHINGTON V. ROBBINS. Customs.- White hard enamel is dutiable as article manufactured in part or in whole, not watch materials, p. 340.

Approved in Saltonstall v. Wiebusch, 156 U. S. 604, 39 L. 550, 15 S. Ct. 477, upon classification of scythes and grass hooks. Customs. In order to be dutiable as watch material, article must bear marks of special adaptation, p. 341.

Customs.- Classification of article is determined by examination of it as imported, not by its intended use, p. 341.

Approved in Dwight v. Merritt, 140 U. S. 219, 35 L. 452, 11 S. Ct. 770, and Meyer v. Cadwalader, 89 Fed. 970, 60 U. S. App. 552, 558, following rule; United States v. Schoverling, 146 U. S. 82, 36 L. 895, 13 S. Ct. 26, classifying gunstocks as manufactures of iron and not as guns; Cadwalader v. Jessup, 140 U. S. 354, 37 L. 766, 13 S. Ct. 876, holding old rubber shoes exempt from duty as having lost commercial identity: Sonn v. Magone, 159 U. S. 421, 40 L. 204, 16 S. Ct. 69, classifying dry lentils as vegetables and not as seeds; Magone v. Wiederer, 159 U. S. 560, 561, 40 L. 260, 16 S. Ct. 124, classifying glass cut for use in clocks as parts of clocks; Tide Water Oil Co. v. United States, 171 U. S. 218, 18 S. Ct. 840, holding party exporting boxes manufactured from imported articles not allowed rebate under R. R., § 3019; United States v. Irwin, 78 Fed. 802, 45 U. S. App. 746, classifying gun barrels, gunstocks, with locks, etc., shipped to same person as shutguns; United States v. United States Exp. Co., 94 Fed. 643, holding stock pearl, chiefly used for knife handles, but also on other things, dutiable under ¶ 450, Tariff Act of 1897.

139 U. S. 342-37, 35 L. 131, PEAKE v. NEW ORLEANS. Municipalities.-- Judgment absolving New Orleans from obligation of debtor and declaring it trustee, held proper, p. 350. Municipalities.- Under Louisiana act of 1871, New Orleans is compulsory trustee with strictly limited liability, p. 353.

Approved in Warner v. New Orleans, 167 U. S. 478, 42 L. 242, 17 S. Ct. 896, arguendo.

Distinguished in Wilder v. New Orleans, 67 Fed. 568, holding receiver succeeding city as trustee of drainage fund, city no longer subject to suit in regard thereto; Warner v. New Orleans, 167 U. S. 477, 42 L. 242, 17 S. Ct. 896, New Orleans v. Warner, 175 U. S. 129, 132, 134, 20 S. Ct. 48, 49, 50, modifying S. C., 81 Fed. 651, 52 U. S. App. 354, holding, in action on warrants issued in payment of drainage franchise, city estopped from setting up payments in excess of amount collected; Wilder v. City of New Orleans, 87 Fed. 846, 847, holding holders of warrants issued for purchase of drainage franchise entitled to judgment against city.

Municipality having no control over drainage construction ordered by legislature, it is not liable for failure to collect assessments, p. 353.

Municipality may be held for proportion of assessment, although Its streets cannot be sold for non-payment, p. 356.

Municipality abandoning public work is not liable to persons investing on faith of completion, p. 360.

Municipalities.- New Orleans, in purchasing unfinished works of canal company, did not bind itself to complete, p. 360. Municipality cannot be charged as debtor to contractor for public works, when special assessment fails, p. 361.

Approved in Barber Asphalt Paving Co. v. Harrisburg, 62 Fed. 569, holding city not liable for street improvements under contract to pay in assessments afterwards declared invalid; Shreveport v. Prescott, 51 La. Ann. 1928, 26 So. 677, holding street railway must pay for street improvements between tracks and two feet outside; German, etc., Sav. Bank v. Spokane, 17 Wash. 335, 49 Pac. 548, 38 L. R. A. 265, holding city not liable to action by holders of warrants issued to contractor for improvements where city officers had power to collect funds.

Distinguished in Barber Asphalt Pav. Co. v. Harrisburg, 64 Fed. 286. 28 U. S. App. 108, 29 L. R. A. 403, holding city liable for street improvements made under contract to pay in invalid assessments.

139 U. S. 377-378, 35 L. 138, PEAKE v. NEW ORLEANS.

Adjudged in conformity with Peake v. New Orleans, supra, q. v.

139 U. S. 378 379, 35 L. 195, TIMMONS v. ELYTON LAND CO. Courts. Where jurisdiction depends upon citizenship, averments of residence or non-residence are insufficient, p. 370.

Approved in Shaw v. Quincy Min. Co., 145 U. S. 447, 36 L. 770, 12 S. Ct. 936, holding corporation cannot be compelled to answer in Federal court of State where not incorporated; Laskey v. Newtown Min. Co., 50 Fed. 636, holding complaint must show that either plaintiff or defendant resides in district; Horne v. Hammond Co., 155 U. S. 394, 39 L. 197, 15 S. Ct. 167, Southwestern Tel., etc., Co. v. Robinson, 48 Fed. 769, 770, 2 U. S. App. 148, and Cras well v. Belanger, 56 Fed. 530, 15 U. S. App. 104, all holding diversity of citizenship must affirmatively appear on record to exist at commencement of action; American Sugar-Refining Co. v. Johnson, 60 Fed. 508, 13 U. S. App. 681, holding averment that corporation is "domiciled and doing business in city, and a citizen of," insufficient; Danahy v. National Bank of Denison, 64 Fed. 149, 24 U. S. App. 351, holding, in action on note in Federal court by national bank, record must show diverse citizenship.

139 U. S. 380-438

Notes on U. S. Reports.

1164

139 U. S. 380-385, 35 L. 197, UNDERWOOD v. DUGAN. Equity. Ancestor's failure to assert title after twenty years' knowledge of facts bars heir, p. 382.

Approved in Ware v. Galveston City Co., 146 U. S. 116, 36 L 010, 13 S. Ct. 38, holding waiting more than thirty-five years after accrual of cause of action and knowledge imposing duty of inquiry, is laches; Wehrman v. Conklin, 155 U. S. 333, 39 L. 175, 15 S. Ct. 136, upon question of estoppel in pais.

139 U. S. 385-388, 35 L. 217, DOLAN v. JENNINGS.

Appeal will not lie in name of surviving party unless representative of deceased party is joined, p. 387.

Approved in Hook v. Mercantile Trust Co., 95 Fed. 49, holding failure to join necessary parties on appeal is jurisdictional and motion to dismiss entertained at any time before decision.

Appeal. Representative of deceased party not having been made party within four years, appeal was dismissed, p. 387.

Approved in Ricketts v. Murray, 73 Fed. 691, 34 U. S. App. 666, arguendo.

Distinguished in Ayres v. Fuqua, Ky. -, 46 S. W. 209, holding death of appellee after appeal granted, but before transcript filed, merely renders revivor necessary.

139 U. S. 388-417, 35 L. 199, MELLEN v. BUCKNER.

Fraudulent conveyances.- Gift held fraudulent as to creditors so far as it exceeded debt due donee, p. 410.

Gift will not be sustained contrary to express declarations and provisions of donor during lifetime, p. 409.

Descent.- In Louisiana, persons who were minors when they became heirs are heirs with benefit of inventory, p. 412.

Miscellaneous.- Cited incidentally in Grant v. Buckner, 172 U. 6. 232, 234, 236, 10 S. Ct. 163, 164, and Grant v. Buckner, 49 La. Ann. 670, 671, 672, 675, 21 So. 581, 582.

139 U. S. 417-438, 35 L. 227, HANDLEY v. STUTZ.

Corporations.- Failure to enter vote of stockholders on records does not affect validity of resolution, p. 422.

Approved in Winnepesaukee Assn. v. Gordon, 67 N. H. 99, 29 Atl. 413, following rule; German Ins. Co. v. Independent School Dist., 80 Fed. 367, 49 U. S. App. 274, admitting oral evidence of proceedings of school board where not recorded.

Corporations.— All stockholders being present at meeting, proceedings are binding, though no notice given, p. 422.

Approved in In re Griffing Iron Co., 63 N. J. L. 172, 41 Atl. 933, applying principle to election of directors without necessary notice; Benbow v. Cook, 115 N. C. 331, 44 Am. St. Rep. 458, 20 S. E. 455,

applying principle to validity of mortgage; Missouri Lead, etc., Co. v. Reinhard, 114 Mo. 228, 35 Am. St. Rep. 750, 21 S. W. 489, holding deed valid when executed in foreign country at meeting of directors; Nickum v. Burckhardt, 30 Or. 472, 60 Am. St. Rep. 827, 47 Pac. 790, holding failure to notify subscribers of meeting cannot be urged by those notified and present in suit for stock assessment. Corporate business transacted at meeting improperly held outside State, binds stockholders voting, p. 423.

Approved in Peck v. Elliott, 79 Fed. 18, 47 U. S. App. 605, 88 L. R. A. 624, and n., estopping acceptor of increase of stock who has taken office solely by virtue of such stock from questioning its validity; Wallace v. Hood, 89 Fed. 21, holding purchaser of national bank stock estopped, in action for assessment on insol. vency, from denying that original capital not paid in; Bank v. Shoemaker, 68 Mo. App. 596, holding sale of corporate property binding on creditors where stockholders join in sale; Bastian v. Woodmen, 166 III. 601, 46 N. E. 1092, arguendo.

Distinguished in Laredo Imp. Co. v. Stevenson, 66 Fed. 636, 32 U. S. App. 97, holding stockholder not estopped from denying llability for stock where corporation without power to issue.

Corporation exercising power to increase stock is estopped, as against holder, to set up irregularity, p. 423.

Approved in Merchants' Nat. Bank v. Chattanooga, etc.. Co., 53 Fed. 316, permitting maintenance of creditors in Federal bill upon judgment of different State; Olson v. State Bank, 67 Minn. 278, 69 N. W. 908, arguendo.

Corporate stockholders assenting to increase of stock and distribution among themselves gratuitously are liable, for amount unpaid, to later creditors, p. 426.

Approved in Hospes v. Northwestern, etc., Car Co., 48 Minn. 196, 31 Am. St. Rep. 646, 50 N. W. 1121, 15 L. R. A. 474, and Palmer v. Bank of Zumbrota, 72 Minn. 277, 278, 75 N. W. 382, following rule; Barcus v. Gates, 89 Fed. 788, 61 U. S. App. 608, applying principle under Virginia statute; M'Vickar v. Jones, 70 Fed. 759, holding allegation that stock stands in name of defendant and has so stood for more than five years sufficient; Beal v. Dillon, 5 Kan. App. 34, 47 Pac. 320, holding stockholder may plead fraud in inducing him to subscribe; Gilman v. Gross, 07 Wis. 228, 72 N. W. 886, holding holder of stock as collateral security for debt due from corporation not liable to creditor whose claim accrued previous to issuance of stock; Hooper v. Central Trust Co., 81 Md. 581, 32 Atl. 510, 29 L. R. A. 268, arguendo. See 57 Am. St. Rep. 67, note.

Distinguished in Rickerson Roller-Mill Co. v. Farrell, etc., Mach. Co., 75 Fed. 560, 43 U. 8. App. 452, holding subscriber of stock issued for purpose of extending business personally liable; Jones v. Whitworth, 94 Tenn. 609, 30 S. W. 738, enforcing personal lia