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by force of the provisions of sec. 25, ch. 228, Gen. Stats. (of N. H.) either to sell his
own share or purchase that of his co-tenant ; but, in such case, resort may be had to
a court of equity, which has power to compel a sale of the entire estate, and order
distribution of its proceeds upon equitable principles. 16.

IMPROVEMENTS.
A purchased in good faith, for its full value, without notice of any defect in his title,

and believing it to be good, a lot of ground, described as part of Military Lot No.
3905, and erected thereon a valuable building. B was the owner of a tract of land,
called “ The Trap," but was ignorant of its precise limits until its location was as-
certained by actual survey, some years after the erection of the building by A, and
it was found to include a part of Military Lot No. 3905. B thereupon instituted an
action of ejectment against certain persons in possession of parts of the said military
lot, and recovered judgment, which was affirmed on appeal. The lot of ground which
had been purchased by A was found to be included in the lines of the tract called
"The Trap," but A was not made a defendant in the ejectment suit. A writ of
habere fucias possessionem having been obtained by B under his judgment in ejectment,
and the sheriff having declared his purpose to assert his authority by force, if neces-
sary, A surrendered possession of his lot. Upon a bill filed by A against B asking
relief, it was held, that A was entitled to relief in respect to the valuable improvements
made by him, but that B should have the option to accept from A payment for the
lot of ground estimated at its just value, without the improvements thereon, and
should, on its receipt, convey the lot to A by a sufficient deed; or to take and hold
the lot with the improvements, paying to A the actual value of such improvements, to
the extent of the additional value which they had conferred upon the land ; and in
default of such payment the same should be a lien and charge on the property, to be
enforced by a sale thereof. Union Hall Association v. Morrison, 7.

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INSANITY.
1. The Act 168 of Michigan of 1873, providing for the confinement in the insane hospi-

tal at the state prison of such persons as are acquitted of murder on the ground of in-
sanity, does not furnish adequate means for its enforcement, and is unconstitutional
as contemplating inquisitorial and ex parte proceedings which might result in restrain-

ing personal liberty without due process of law. Underwood v. The People, 287.
2. A jury in a criminal case may pass specially, if it choose, upon the sanity of the ac-

cused, but cannot be compelled to do inore than render a general verdict on the mer-
its, that is, “ guilty” or “ not guilty.” 16.

See CRIMINAL Law, 1 et seq.; Evidence, 4, 5, 6.

INSURANCE.
1. To avoid a policy of life insurance upon the ground that the answers to questions

propounded by the application are untrue, it must appear that the answers were false
malo animo, deliberate misrepresentations made with intent to misstate the facts for a
fraudulent purpose. Where the questions are very difficult to answer accurately, the
answers, in the absence of proof of fraud, may be treated as representations, although
declared by the policy to be warranties. Whether the answers are fraudulent is a

question of fact for a jury. Fitch v. Am. Popular Life Ins. Co. 496.
2. A policy contained a proviso that the company would not be liable for “ loss or dam-

age by fire which may happen or take place by means of any invasion, insurrection,
riot, or civil commotion, or of any military or usurped power.” During the late civil
war, while a battle was going on, to prevent certain stores from falling into the hands
of the enemy, a United States officer set fire to the building in which the stores had
been placed, from whence it was communicated to the property insured, and a loss
ensued. Held, that the battle was not the proximate cause of the loss, and that the

terms of the policy did not warrant a refusal to adjust. Boon v. Ætna Ins. Co. 179.
3. A statute of the State of Wisconsin provided that it should be unlawful for any in-

surance company, organized under the laws of another state, to do business in the
State of Wisconsin, except, inter alia, such company stipulated that any suit against it
brought in a court of said state should not be removed to a court of the United States.
In pursuance of the terms of the statute plaintiffs in error made the prescribed stip-
ulation, but the issue having been raised, it was held that the stipulation was void,
and that it derived no validity from the statute, both stipulation and statute being a
VOL. I.

36

violation of the Constitution of the United States and the laws passed in pursuance

thereof. Home Ins. Co. v. Morse, 19.
4. A policy of insurance on a steamboat against loss by fire only, covers a loss by fire

caused by collision where collision is not excepted, by the terms of the policy, from

the risk named. Germania Ins. Co. v. Sherlock, 330.
5. Where the conduct of a pilot results in injury to the owner of the vessel, but is free

from fraud, gross negligence, and wilful violation of a known positive law, he is not
guilty of barratry within the rule of maritime or insurance law. Ib.

INTEREST.
1. Upon a contract for payment of money, and for interest thereon by instalments, but

which is silent as to interest after the time specified for the payment of the principal,
the creditor is entitled to interest after that time by operation of law and not by any

provision of the contract. In re Bartenback, 33.
2. A statute authorizing the computation and collection of interest upon unpaid instal-

ments of interest has no application to interest accruing after maturity of the principal
debt, where the contract is silent as to the payment of interest after such maturity. To.

INTERNAL REVENUE.
1. The term “capital,” employed by a banker in the business of banking, in the 110th

section of the revenue act of July 13, 1866, does not include moneys borrowed by him
from time to time temporarily in the ordinary course of his business. It applies only
to the propty or moneys of the banker set apart from other uses and permanently in-

vested in the business. Bailey v. Clark, 226.
2. Section 5, of the Act of June 22, 1874, which provides that the fact of the non-pro-

duction of books and papers in suits under the revenue laws shall be held to be con-
clusive evidence of guilt, unless explained to the satisfaction of the court, is an ex post
facto law, and therefore unconstitutional. U. S. v. Hughes, 300.

JURISDICTION.
1. A person held by virtue of the sentence of a state court for a crime which was not

within the jurisdiction of such court, may be released upon a writ of habeas corpus

from a United States court. Brown v. United States, 464.
2. A committed perjury before a United States commissioner, and was tried and sen-

tenced in a state court. Having been produced upon a writ of habeas corpus sued out
of a United States court, it was held, that the state court had no jurisdiction to try
the relator, the crime not being one against the state; and that the United States

court had power to discharge him upon habeas corpus. Ib.
3. The second section of the act of July 5, 1867, 14 U. S. Statutes, 385, operates as a

repeal of the twenty-fifth section of the judiciary act of 1789; and the act of 1867, as
it is now found in the Revised Statutes, is the sole law governing the removal of
causes from state courts to this court for review, and has been since its enactment in
1867. Congress did not intend, by omitting in this statute the restrictive clause of
the act of 1789, limiting the supreme court to the consideration of federal questions
in cases so removed, to enact affirmatively that the court should consider all other
questions involved in the case that might be necessary to a final judgment or decree.

Murdock v. City of Memphis, 113.
4. Nor does the language of the statute, that the judgment may be reëxamined and re-
versed or affirmed on a writ of error

in the same manner and under the
same regulations, and the writ shall have the same effect as if the judgment or decree
complained of had been rendered or passed in a court of the United States, require
the examination of any other than questions of federal law. The phrase here used
has reference to the manner of issuing the writ, its return, with the record of the case,
its effect in removing the case to this court, and the general rules of practice which
govern
the progress

of such cases to final judgment, and is not intended to prescribe
the considerations which should govern this court in forming that judgment. · lb.
5. But the language of the statute, in making the jurisdiction of this court dependent

on the decision of certain questions by the state court against the right set up under
federal law or authority, conveys the strongest implication that these questions alone

are to be considered when the case is brought here for revision. 16.
6. This view is confirmed by the course of decisions in this court for eighty years, by

the policy of Congress, as shown in numerous statutes, conferring the jurisdiction of

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this class of cases in courts of original jurisdiction, viz., the district and circuit
courts, whether originally or by removal from state courts, when it intends the whole

case to be tried, and by the manifest purpose which caused the passage of the law. Ib.
7. In construing the present statute as compared with the act of 1789, we are of opinion

that we are not so closely restricted to the face of the record in determining whether
one of the questions mentioned in it has been decided in the state court, and that we
may under this statute look to the properly certified opinion of the state courts when

any have been delivered in the case. 16.
8. And we hold the following propositions as governing our examination and our judg-

ments and decrees in this class of cases, under the statute as now found in the recent
revision of the acts of Congress : (1.) That it is essential to the jurisdiction of this
court over the judgment or decree of a state court that it shall appear that one of the
questions mentioned in the statute must have been raised and presented to the state
court; that it must have been decided by the state court against the right claimed or
asserted by plaintiff in error, under the Constitution, treaties, laws, or authority of
the United States; or that such a decision was necessary to the judgment or decree
rendered in the case. (2.) These things appearing, this court has jurisdiction, and
must examine the judgment so far as to enable it to decide whether this claim of right
was correctly adjudicated by the state court. (3.) If it finds that it was rightly de-
cided, the judgment must be affirmed. (4.) If it was erroneously decided, then the
court must further inquire whether there is any other matter or issue adjudged by the
state court sufficiently broad to maintain the judgment, notwithstanding the error in
the decision of the federal question. If this be found to be the case, the judgment
must be affirmed, without examination into the soundness of the decision of such
other matter or issue. (5.) But if it be found that the issue raised by the question of
federal law must control the whole case, or that there has been no decision by the
state court of any other matter which is sufficient of itself to maintain the judgment,
then this court will reverse that judgment, and will either render such judgment here
as the state court should have rendered, or will remand the case to that court for fur-

ther proceedings, as the circumstances of the case may require. 16.
9. A United States court has power, under sec. 915, Revised Statutes, to issue process

of foreign attachment against the property of non-residents, according to state laws.

Guillou v. Fontain, 502.
10. Equity has no jurisdiction to restrain the collection of a personal tax, even though

illegal. Youngblood v. Sexton, 538.
11. The acquiescence of parties cannot give a court of chancery jurisdiction to issue a

writ of injunction. 16.
12. The enforcement of a money demand does not fall within the category of “irrepa-

rable injuries," so as to require equity cognizance. Ib.
13. A common interest in a question at law, where the legal interests of the parties are

wholly distinct, is no ground for equitable jurisdiction when the several controversies
affected by the legal question are themselves purely legal; it does not, therefore, call
for the action of a court of equity for the purpose of avoiding a multiplicity of
suits.

See ADMIRALTY,

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8 et seq.

LIMITATIONS.
The statute of limitations begins to run against detached coupons from their maturity.
Clark v. Iowa City, 133.

MANDAMUS.
1. Writs of injunction, certiorari and habeas corpus, and informations in the nature of

quo warranto are necessary to the ordinary jurisdiction of circuit courts, but the ju-
risdiction given to such courts by article 6, section 8, of the Constitution of Michi-
gan, does not authorize them to issue such writs, and especially writs of mandamus,
except for the purposes of the jurisdiction that is conferred in general terms upon

them. McBride v. Grand Rapids, 533.
2. The history and nature of the writ of mandamus examined and expounded. 16.

MORTGAGE.
1. To show by parol that a deed absolute on its face is a mortgage, the proof must be

clear, explicit, and unequivocal. Plumer v. Guthrie, 446.

2. The proof must establish an agreement substantially contemporaneous with the exe-

cution and delivery of the deed, and not rest on the subsequent admissions and declar.

ations of the mortgagee only. Ib.
3. Guthrie's land was sold at sheriff's sale, purchased by Lane, a creditor; he conveyed

to Plumer. Evidence of conversations between Lane and Guthrie, months before the
conveyance to Plumer and not in his presence, tending to show an understanding that
Plumer would advance Guthrie's debt to Lane, and take the property as security for

Guthrie, held to be admissible. Ib.
4. To convert an absolute deed into a mortgage, the contract to do so need not be ex-

press, it may be inferred from facts and circumstances; but a knowledge of these
must be brought home to the owner of the legal title before he can be affected by

them. Ib.
5. Evidence of such facts and circumstances should be received with caution, and if it

does not make a case on which a chancellor would decree a conveyance, should not be

submitted to the jury. Ib.
6. Eleven years after the conveyance to Plumer he made a lease of the land to Guthrie,

who took possession under it. If the original conveyance to Plumer was a mortgage,

the lease was evidence of Guthrie's abandonment of it. Ib.
7. Evidence in this case not sufficient to submit to a jury on the question whether the

deed was a mortgage. 16.
8. Before the war B. had sold and conveyed to E. a tract of land at the price of $5.60

per acre, for which, on the 2d of December, 1862, E. owed B. $700. On that day
E. entered into a covenant with S., by which he covenants to convey to S. a certain
part of the land, between thirty and forty acres, if S. will advance the $200 to pay
B., and allow E. three years to repay S. the $700, after deducting the price of that
part cut off for S. And if E. should fail to pay S. the full amount, principal and
interest, advanced by S. for E., to pay for the portion retained by him, then E. binds
himself to convey title to the residue of said tract to S. S. pays B. the $700, B.
receiving it in confederate money. At the time of this agreement the land was esti-
mated by witnesses to be worth $15 per acre in confederate money. E. does not pay
the money or any part of it in three years. Held: 1. The contract is not a condi-
tional sale, but a mortgage. 2. The contract is not usurious. 3. It is a confederate
contract, and the amount due is to be scaled as of the date of the contract. Earp v.

Boothe, 312.
9. A mortgage executed by P. and wife, recited that P. was indebted to L. & Co. in the

full sum of $30,000, upon his six promissory notes, drawn by him to their order, each
for $5,000, dated the 1st October, 1857, and payable two of them at six, two at nine,
and two at twelve months, and all bearing interest from date, and that the mortgage
was executed to secure payment of the said sum of $30,000 and interest, agreeably to
the tenor of the said note. After the usual conveyance and defeasance clauses and
assent to a decree for a sale, there was the following : “ Memorandum Whereas the
parties hereto of the second part as copartners aforesaid are the holders of eleven
hundred and fifty shares of the capital" stock of the Baltimore and Ohio Railroad
Company, which they have agreed to carry for and on account of said P. for the pe-
riod of twelve months from the first day of October, 1857, at forty-five dollars per
share; now it is hereby declared to be the express agreement and understanding of the
parties hereto, and one of the considerations for making this mortgage, that in case of
à sale of said railroad stock or any part thereof during said period of twelve months
at an advance over forty-five dollars per share, such advance is to be credited to the said
P. on account of the debt secured by this mortgage, and likewise that all dividends
received by said parties of the second part on said stock during the period aforesaid
is to be credited on account of the said debt hereby secured.” This mortgage being
assailed for fraud by a bill in equity, filed by the mortgagors against the mortgagees
and the trustee appointed to sell the mortgaged property, it was held : 1st. That parol
evidence was admissible for the purpose of showing the true character of the instru-
ment, for what consideration it was given, and what purposes the parties to it intended
it should subserve. 2d. That it was simply a mortgage of indemnity - its sole pur-
pose being to secure L. & Co. against loss in carrying the eleven hundred and fifty
shares of stock to the extent of their sales as low as $15 per share, they taking upon
themselves the risk of all additional loss that might be incurred by a sale at a less
rate. Price v. Gover, 153.

See DowER.

MUNICIPAL BONDS.
See MUNICIPAL CORPORATION, 3 et seq.

manner.

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MUNICIPAL CORPORATION.
1. Damages will not be given for the injury to adjacent property caused by changing the

grade of a street when the change is lawfully made by the proper authority. City of

Pontiac v. Carter, 376.
2. The owner of land adjoining a highway may maintain an action at common law

against the town to recover damage caused to his land by the fault or negligence of the
town in not building and maintaining the road in a reasonably suitable and proper

Gilman v. Laconia, 357.
3. Where an act of the legislature authorized the mayor and aldermen of a city, “ with

the consent of a majority of the corporation comprising said city," to subscribe money
to any railroad leading from the city, and to borrow money to pay the same, held, that
there was thus conferred upon the municipal officers power to issue bonds to pay the

subscription. Milner's Adm'r v. City of Pensacola, 186.
4. Under authority of such a law, the mayor and aldermen of the city of Pensacola

subscribed a large sum to aid in the construction of a railroad from the city of Pensa-
cola, and, in payment thereof, issued negotiable bonds payable to bearer in twenty
years, which, on their face, stated that they were issued in conformity with law. In
a suit brought by an innocent holder for value on the coupons belonging to said bonds,
it was held to be no defence to the action, that at the election to obtain the “consent
of a majority of the corporation comprising said city" to such subscription, only a
minority of the citizens voted; nor that the question submitted to the citizens was
whether the subscription should be made to construct a railroad from Pensacola to
Montgomery, and the subscription was actually made to construct a railroad from

Pensacola to the state line. 16.
5. A construction of a law which would impute to the legislature the design to perpetrate

an unconscionable and barefaced fraud ought to be avoided, if it can be fairly and
reasonably done. This rule applied to the acts of the Legislature of Florida provid-
ing for the incorporation of cities and towns, approved August 6, 1868, and February

4, 1869. Ib.
6. It is not within the power of a legislature, by a repeal of the charter of a municipal

corporation to invade the rights of its creditors, and cancel its indebtedness. Such

legislation impairs the obligations of contracts and is unconstitutional. Ib.
7. A statute which authorizes towns to contract debts or other obligations payable in

money implies the duty to levy taxes to pay them, unless some other fund or source of

payment is provided. Citizens', &c. Association v. City of Topeka, 172.
8. If there is no power in the legislature which passed such a statute to authorize the

levy of taxes in aid of the purpose for which the obligation is to be contracted, the
statute is void, and so are the bonds or other forms of contract based on the stat-

ute. Ib.
9. There is no such thing in the theory of our governments, state and national, as un-

limited power in any of their branches. The executive, the legislative, and the judi-
cial departments are all of limited and defined powers Among these is the limitation
of the right of taxation, that it can only be used in aid of a public object,

- an ob-
ject which is within the purpose for which governments are established. It cannot,
therefore, be exercised in aid of enterprises strictly private, for the benefit of indi-
viduals, though in a remote or collateral way the local public may be benefited

thereby. Ib.
10. Though the line which distinguishes the public use for which taxes may be assessed

from the private use for which they may not, is not always easy to discern, yet it is
the duty of the courts, where the case falls clearly within the latter class, to inter-
pose when properly called on for the protection of the rights of the citizen, and
aid to prevent his private property from being unlawfully appropriated to the use of

others. 16.
11. A statute which authorizes a town to issue its bonds in the aid of the manufacturing

enterprises of individuals is void, because the taxes necessary to pay the bonds would,
if collected, be a transfer of the property of individuals to aid in the projects of
gain and profit of others, and not for the public use, in the proper sense of that term.
And in a suit brought on such bonds, or the interest coupons attached thereon, the
circuit court properly declared them void. 16.

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