W. 924, and Butler v. Sprague, 66 N. Y. 395, all holding rule inapplicable where fund not traceable.

Miscellaneous. Cited also in Harmanson v. Bain, 1 Hughes, 201, F. C. 6,072, but not in point.

18 Wall. 342-350, 21 L. 808, MULHALL V. KEENAN.

Evidence.-Entries in defendant's own books are inadmissible to show on whose account draft was made, p. 348.

Evidence.- Letter from drawer to drawee is admissible to show whether draft was drawn upon the faith of a letter of credit or solely upon drawer's own account, pp. 348, 349.

Guaranty.- Letter authorizing drafts when there is "sufficient margin" confers limited authority, which cannot be exceeded, p. 349.

Distinguished in Merchants' Bank v. Griswold, 72 N. Y. 479, 28 Am. Rep. 163, holding authority to draw “as may be necessary' did not imply limit.

Evidence.-Where power to draw is conditioned upon sufficient margin, evidence is admissible upon question of sufficiency, p. 349.

New trial-Only remedy for surprise caused by failure of declaration and bill of particulars to clearly set out nature of case, is motion for new trial, pp. 349, 350.

Cited and applied in Colorado M. Ry. v. Bowles, 14 Colo. 89, 23 Pac. 468, holding surprise by admission of unexpected evidence is ground for new trial.

Appeal and error.- Refusal of court to grant new trial is not subject of appeal, p. 350.

Cited and rule reaffirmed in the following cases: Ruch v. Rock Island, 97 U. S. 696, 24 L. 1102, Railway Co. v. Twombly, 100 U. S. 81, 25 L. 550, Preble v. Bates, 37 Fed. 773, and McClellan v. Pyeatt, 50 Fed. 688, 4 U. S. App. 319. Cited by way of analogy in Dietz v. Lymer, 61 Fed. 794, 19 U. S. App. 663, holding discretion of lower court in sustaining motion to make answer more certain is not controllable on appeal.

18 Wall. 350-375, 21 L. 959, GALPIN v. PAGE.

Judgments. In suit to settle partnership, adjudication by State Supreme Court on appeal, that service on infant heir of deceased partner was insufficient, and hence court could not appoint guardian ad litem, is binding upon Circuit Court in suit based on such reversed judgment, p. 365.

Cited and principle applied in Seaverns v. Gerke, 3 Sawy. 366, F. C. 12,595, a similar case; Loomis v. Carrington, 18 Fed. 99, holding Circuit Court cannot review orders of State court in garnish

ment proceedings made prior to removal; Perry v. Wheeler, 12 Bush, 552, refusing to follow Federal court's interpretation of State law repugnant to construction adopted by State courts; Hunt v. Hunt, 72 N. Y. 236, 28 Am. Rep. 143, holding State court is exclusive judge as to jurisdiction in suit for divorce between its citizens. Cited approvingly, but obiter, in Van Matre v. Sankey, 148 Ill. 552, 39 Am. St. Rep. 201, 36 N. E. 631, 23 L. R. A. 670.

Courts. Presumption is in favor of jurisdiction of court of general jurisdiction over both property and parties; aliter where court is one of limited or special jurisdiction, pp. 365, 366.

Cited and followed in Cuddy, Petr., 131 U. S. 285, 33 L. 156, 9 S. Ct. 704, holding presumption applicable to sentence for contempt; Lynde v. Columbus, etc., Ry., 57 Fed. 994, holding plea of judgment as bar is not bad for failure to aver that court had jurisdiction; Foster v. Givens, 67 Fed. 686, 688, 31 U. S. App. 626, presuming jurisdiction in suit to enforce vendor's lien; M'Connell v. Day, 61 Ark. 474, 33 S. W. 734, applying rule to judgment in ejectment; Hughes v. Cummings, 7 Colo. 141, 2 Pac. 290, holding validity of order reinstating cause cannot be questioned in collateral action in another court; Sammis v. Wightman, 31 Fla. 25, 12 So. 530, and Gates v. Newman, 18 Ind. App. 394, 46 N. E. 655, applying rule in suit on foreign judgment in assumpsit; Henry v. Carson, 96 Ind. 423, holding jurisdiction of District Court to confiscate property must appear on record; Van Norman v. Gordon, 172 Mass. 579, 70 Am. St. Rep. 306, 53 N. E. 268, 44 L. R. A. 841, asserting jurisdiction to enter judgment confessed by attorney in suit on note; Hersey v. Walsh, 38 Minn. 522, 8 Am. St. Rep. 690, 38 N. W. 613, holding judgment will be presumed to be regularly entered; Werz v. Werz, 11 Mo. App. 32, 33, 43, and Amy v. Amy, 12 Utah, 309, 42 Pac. 1124, holding jurisdiction presumed in divorce proceedings; Brown v. Walker, 11 Mo. App. 230, holding presumption arises in suit to collect back taxes; Smith v. Central Trust Co., 154 N. Y. 341, 48 N. E. 555, sustaining order appointing trustee under will; Angell v. Angell, 14 R. I. 544, holding jurisdiction of Probate Court to appoint guardian presumed; Holmes v. Buckner, 67 Tex. 109, 2 S. W. 453, holding judgment of court of general jurisdiction not attackable for failure to show jurisdiction. Cited, arguendo, in the following: American Tube, etc., Co. v. Crafts, 156 Mass. 258, 30 N. E. 1024, Kelley v. Kelley, 161 Mass. 113, 42 Am. St. Rep. 391, 36 N. E. 838, 25 L. R. A. 807, Sipes v. Whitney, 30 Ohio St. 74, and Chafee v. Postal Telegraph Co., 35 S. C. 380, 14 S. E. 766.

Courts. Presumptions in support of judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts concerning which record is silent, p. 366.

Numerous citing cases cite and apply this syllabus holding, as follows: Newman v. Crowls, 60 Fed. 224, 23 U. S. App. 89, Latta v.

Tutton, 122 Cal. 282, 68 Am. St. Rep. 33, 54 Pac. 844, Clayton v. Clayton, 4 Colo. 416, San Juan, etc., Min. & Smelting Co. v. Finch, 6 Colo. 219, Israel v. Arthur, 7 Colo. 8, 1 Pac. 439, State v. Waterman, 79 Iowa, 365, 44 N. W. 678, Hart v. Grigsby, 14 Bush, 550, and Barber v. Morris, 37 Minn. 196, 5 Am. St. Rep. 838, 33 N. W. 560, all holding where record shows defective service or want of service no contrary presumption can arise; Cheely v. Clayton, 110 U. S. 708, 28 L. 301, 4 S. Ct. 332, holding notice and return appearing on record of divorce proceedings control recitals of service; Cissell v. Pulaski Co., 3 McCrary, 449, 10 Fed. 893, holding recital showing failure to give notice calling in county warrants cannot be contradicted by parol; Hunt v. Woodward, 12 Fed. Cas. 950, holding record is prima facie evidence of service; Little Rock Junction Ry. v. Burke, 66 Fed. 90, 27 U. S. App. 736, holding decree in ejectment attackable where record shows want of jurisdiction; Koons v. Bryson, 69 Fed. 301, 25 U. S. App. 368, holding recitals in decree of foreclosure prima facie evidence of previous proceedings; Northern Pacific Ry. v. Kurtzman, 82 Fed. 243, and Parr v. Matthews. 50 Ark. 393, 8 S. W. 23, holding record showing that tax was illegal, is conclusive and sale thereunder void; Dexter Horton & Co. v. Sayward, 84 Fed. 300, 301, holding judgment void where record showed want of jurisdiction; Martin v. M'Diarmid, 55 Ark. 216, 17 S. W. 877, holding record averring authority of court leaves no room for contrary presumption; Frankel v. Satterfield, 9 Houst. 204, 206, 210, 19 Atl. 899, 900, 901, holding want of jurisdiction apparent on record is defense to scire facias; Robinson v. Epping, etc., Co., 24 Fla. 252, 4 So. 818, affirming, upon this point, S. C., 21 Fla. 48, 49, 50, holding, in absence of record of County Court in proceeding to appoint administrator, letters raise presumption of jurisdiction; Hunter v. Ferguson, 13 Kan. 471, holding record stating regular judge to have been incompetent is presumptively true; Lonkey v. Keyes, etc., Mining Co., 21 Nev. 320, 31 Pac. 60, 17 L. R. A. 353, holding recital in judgment as to service controlled by record showing of return; Pope v. Harrison, 16 Lea, 93, 96, holding record showing service at certain place cannot be contradicted by evidence proving another place; Fitch v. Boyer, 51 Tex. 344, and Chrisman v. Graham, 51 Tex. 457, holding record recital of jurisdictional facts conclusive; Vaughn v. Congdon, 56 Vt. 116, 48 Am. Rep. 759, holding allegation as to time of committing offense conclusive; Wade v. Hancock, 76 Va. 625, and Dillard v. Central Va. Iron Co., 82 Va. 738, 1 S. E. 126, holding judgment void where want of jurisdiction appears on record.

Courts. Presumptions in support of judgments of superior courts of general jurisdiction are limited to jurisdiction over persons within their territorial limits, who can be reached by process, and over proceedings in accordance with course of common law, p. 367.

The following citing cases apply this ruling: Galpin v. Page, 3 Sawy. 100, F. C. 5,206, case involving similar facts and same par

ties; Furgeson v. Jones, 17 Or. 211, 11 Am. St. Rep. 813, 20 Pac. 846, 3 L. R. A. 623, holding, where defendant is non-resident, burden is on plaintiff to show jurisdictional facts; Wilbur v. Abbot, 6 Fed. 816, Belcher v. Chambers, 53 Cal. 639, Guaranty, etc., Deposit Co. v. Buddington, etc., Co., 27 Fla. 231, 9 So. 250, 12 L. R. A. 776, and n., Green v. Equitable, etc., L. Assn., 105 Iowa, 631, 75 N. W. 636, Rand v. Hanson, 154 Mass. 89, 26 Am. St. Rep. 211, 28 N. E. 6, 12 L. R. A. 574, and n., Northcut v. Lemery, 8 Or. 323, and Neff v. Pennoyer, 3 Sawy. 299, F. C. 10,083, all holding judgment in personam against non-resident cannot hold property within State, not attached; Hindman v. O'Connor, 54 Ark. 643, 16 S. W. 1057, 13 L. R. A. 498, and n., ruling similarly in suit under statute to remove minor's disabilities; Morris v. Dooley, 59 Ark. 487, 28 S. W. 31, and Foster v. Waterman, 124 Mass. 595, all holding proceeding for adoption of child is statutory, and jurisdiction must appear; Prentiss v. Parks, 65 Me. 562, holding record in assumpsit for debt for flowing land must show jurisdiction; Kelley v. Kelley, 161 Mass. 117, 118, 42 Am. St. Rep. 395, 396, 36 N. E. 840, 25 L. R. A. 809, holding jurisdiction must be shown by record in suit to annul marriage; Coleman v. Stearns Mfg. Co., 38 Mich. 34, holding suit to establish mechanic's lien is not common law suit, and jurisdiction must be shown; Pulask! Co. v. Stuart, etc., Co., 28 Gratt. 878, 879, holding special jurisdiction to act ministerially must appear on record; dissenting opinion in Pressley v. Lamb, 105 Ind. 196, 4 N. E. 698, majority holding decree appointing receiver cannot be attacked collaterally. Cited, arguendo, in In re Goldsmith, 12 Or. 417, 7 Pac. 98, and Frame v. Thormann, 102 Wis. 670, 79 N. W. 43.

Criticised in Newcomb v. Newcomb, 13 Bush. 563, 564, 26 Am. Rep. 229, 230, denying existence of distinction, and holding judgment of court of general jurisdiction against non-resident presumed valid.

Courts of one State have no jurisdiction over residents of other States not found within their territorial limits; they cannot extend their process into other States, p. 367.

Cited and relied upon in Cooper v. Newell, 173 U. S. 567, 573, 19 S. Ct. 510, 513, holding judgment of State court against non-resident, subject to collateral attack; Neff v. Pennoyer, 3 Sawy. 278, F. C. 10,083, holding judgment based on constructive service, in action in personam against non-resident, cannot hold property not attached; Graham v. Spencer, 14 Fed. 605, denying right to recover on foreign Judgment in personam rendered against non-resident; Romaine v. Union Ins. Co., 28 Fed. 639, vacating service of subpœna outside of jurisdiction; Wakelee v. Davis, 50 Fed. 523, holding allegation of jurisdictional facts proper where defendant in judgment relied upon was non-resident; United States v. American Lumber Co., 80 Fed. 311, holding service of process outside of State will not stop running of statute of limitations; Iron Age Pub. Co. v. Western

Union Teleg. Co., 83 Ala. 505, 3 Am. St. Rep. 761, 3 So. 451, deny. ing jurisdiction of equity to enforce specific performance against foreign corporation; Rucker v. Morgan, Ala. - 25 So. 246, affirming decree dismissing bill against non-resident; Belcher v. Chambers, 53 Cal. 643, holding void, judgment on money demand based on constructive service; De La Montanya v. De La Montanya, 112 Cal. 113, 53 Am. St. Rep. 172, 44 Pac. 348, 32 L. R. A. 86, holding decree for alimony cannot be based on constructive service on nonresident; Caldwell v. Armour, 1 Pennewill (Del.), 551, 43 Atl. 519, holding service on agent of non-resident corporation insufficient; State v. Jacksonville, etc., R. R., 15 Fla. 285, holding, under Florida laws, receiver cannot be appointed by judge of one circuit to take charge of property in another; Harris v. Pullman, 84 Ill. 24, 25 Am. Rep. 418, holding decree based on constructive service cannot bind property in other State; Wilson v. St. Louis, etc., Ry., 108 Mo. 598, 32 Am. St. Rep. 629, 18 S. W. 293, holding notice to fix personal liability of stockholder cannot be served outside of State; Tillinghast v. Boston Co., 39 S. C. 494, 18 S. E. 124, 22 L. R. A. 53, holding court cannot require jurisdiction in personal action against foreign corporation by publication. Approved obiter in Phillips v. Benson, 82 Ala. 503, 2 So. 94. And see notes in 76 Am. Dec. 666, and 94 Am. Dec. 768.

Distinguished in dissenting opinion in Pennoyer v. Neff, 95 U. S. 743, 24 L. 576, majority holding execution will not issue on judgment in personam against non-resident; dissenting opinion in State v. Jacksonville, etc., R. R., 15 Fla. 287 (see majority opinion, supra).

Process.- Statutes authorizing constructive service on absentees by publication, must be strictly observed to give court jurisdiction, p. 369.

Numerous citing cases follow this ruling of Galpin v. Page, and show it to be a leading authority upon this point: Boyd v. Roane, 49 Ark. 414, 5 S. W. 708, and Campbell v. Drais, 125 Cal. 258, 57 Pac. 995, in both of which, facts were similar to those involved in principal case; Earle v. McVeigh, 91 U. S. 508, 23 L. 400, holding notice posted on door of house vacated seven months previously is not posted at usual place of abode; Settlemier v. Sullivan, 97 U. S. 449, 24 L. 1111, holding record recitals not conclusive of due service; Guaranty Trust Co. v. Green Cove R. R., 139 U. S. 148, 35 L. 120, 11 S. Ct. 516, holding publication for four weeks does not satisfy statutory requirement of “one month;" Dick v. Foraker, 155 U. S. 413, 39 L. 205, 15 S. Ct. 128, and Martin v. Barbour, 34 Fed. 708, holding tax sale vold where notice not given for length of time prescribed; Cissell v. Pulaski Co., 3 McCrary, 450, 10 Fed. 894, and Gibney v. Crawford, 51 Ark. 40, 9 S. W. 311, holding failure to post notice calling in county warrants, renders proceedings void; In re Pensacola Lumber Co., 8 Ben. 172, F. C. 10.959, holding order dissolving corporation without previous order to show cause is void;