instance where Supreme Court directed lower court to award venire facias de novo; Dawes v. Peebles, 6 Fed. 860, and Getty v. Rountree, 2 Pinn. 391, 54 Am. Dec. 144, as authority for holding that vendee may set up breach of express warranty as defense to action for price.

12 Wheat. 193-199, 6 L. 599, MALLOW v. HINDE.

Equity Parties.- Equity will not act where the court can make no decree between the parties before it upon their own rights, without affecting the rights of those not before it, p. 198.

This principle is affirmed and applied by the following citing cases: Findlay v. Hinde, 1 Pet. 246, 7 L. 130, holding vendor necessary party to bill for specific performance to convey land, though he has parted with all title and his grantees are made parties; Shields v. Barrow, 17 How. 140, 141, 15 L. 160, 161, denying jurisdiction of equity to rescind contract affecting rights of persons not before court; Barney v. Baltimore, 6 Wall, 285, 18 L. 826, ordering dismissal of bill for partition where some of necessary parties were .beyond jurisdiction of court; California v. Southern Pacific Co., 157 U. S. 249, 250, 39 L. 690, 691, 15 S. Ct. 599, 600, dismissing bill where joinder of necessary party would oust jurisdiction of Supreme Court; Gray v. Larrimore, 4 Sawy. 650, 2 Abb. (U. S.) 556 (and note, 2 Abb. (U. S.) 554), F. C. 5,721, holding invalid a decree against partner not made party to proceedings for dissolution and account; Stenchfield v. Robinson, 2 Hask. 386, F. C. 13,359a, and Walker v. Cambern, 5 Kan. App. 548, 47 Pac. 982, refusing injunction where necessary parties not subject to process of court; Bank v. Skelton, 2 Blatchf. 19, F. C. 2,739, applying principle in enjoining prosecution of suit in Federal court until necessary suit adjudicated in State court; Bank v. Skelton, 2 Blatchf. 28, F. C. 2,740, affirming 2 Blatchf. 19, F. C. 2,739, in refusing to dissolve injunction; Florence, etc., Co. v. Singer, etc., Co., 8 Blatchf. 127, F. C. 4,884, dismissing suit arising under assignment of patent where joinder of necessary parties would have ousted jurisdiction; Land Co. v. Elkins, 22 Blatchf. 204, 20 Fed. 546, refusing injunction where necessary party was beyond jurisdiction; Tobin v. Walkinshaw, McAll. 29, 32, 37, F. C. 14,068, reviewing authorities and denying motion for injunction and appointment of receiver where parties jointly interested were not all subject to process; Litchfield v. Register, Woolw. 306, F. C. 8,388, refusing to enjoin officers from allowing settlers to enter lands under pre-emption laws, where settlers were not made parties; Davis v. Davis, 89 Fed. 538, refusing to set aside agreement made by parties not before court; Winter v. Ludlow, 30 Fed. Cas. 332, allowing supplemental bill to admit party whose interest accrued after suit commenced; Chester v. Chester, 7 Fed. 4, holding mortgagee necessary party to bill to establish resulting trust in land possessed by mortgagor; Crane v. Chicago, etc., Ry. Co., 20 Fed. 405, refusing to allow

removal of suit for specific performance, where necessary party not subject to Federal process; Connolly v. Wells, 33 Fed. 208, sustaining demurrer to bill against executors for accounting, where one executor not subject to Federal jurisdiction; Gregory v. Swift, 39 Fed. 711, sustaining demurrer to bill to recover proceeds of note where all of joint owners not made parties; Miller v. Merine, 43 Fed. 269, applying principle in holding person not bound by judgment on ejectment, he having had no notice of proceedings; Chadbourne v. Coe, 45 Fed. 826, dismissing bill in equity against trustee to subject property alleged to have been fraudulently conveyed to him, debtor not having been made party; Porter v. Clements, 3 Ark. 382, refusing decree of foreclosure where all parties interested were not joined; Spear v. Campbell, 4 Scam. 427, dismissing creditor's bill filed to set aside fraudulent conveyance, debtor not having been made party; State v. Anderson, 5 Kan. 116, dismissing bill to enjoin State treasurer from paying over to corporation proceeds of sales of land granted to them, corporations not having been made parties; Adler v. Wolff, 36 La. Ann. 175, refusing to enforce lien against one not notified of proceeding; Greiner v. Klein, 28 Mich. 18, holding sale under decree in partition proceedings did not bar widow's right of dower, she not having been joined with husband; McPike v. Wells, 54 Miss. 155, holding decree of court ordering sale of lands of intestate not binding as to necessary parties who had no notice; Erickson v. Nesmith, 46 N. H. 375, dismissing bill against stockholders to charge them individually for debts due from corporation, all stockholders not having been joined; Hallett v. Hallett, 2 Paige Ch. 19, holding all legatees to be necessary parties to bill for distribution of estate; Stallcup v. Tacoma, 13 Wash. 153, 52 Am. St. Rep. 33, 42 Pac. 545, holding decree declaring municipal bonds invalid is inoperative as to bona fide holders who had no notice of proceeding; State ex rel. v. Superior Court, 14 Wash. 695, 45 Pac. 673, holding assignee of insurance policy to be necessary party to suit to have proceeds subjected to creditors' claims against insured; dissenting opinion, Paine v. French, 4 Ohio, 327, but application not apparent. Cited approvingly, but obiter, in Cookingham v. Ferguson, 8 Blatchf. 495, 4 Bank. Reg. 642, F. C. 3,182; Schuyler v. Pelissier, 3 Edw. Ch. 193.

Distinguished in United States v. Parrott, McAll. 281, 284, F. C. 15,998, granting motion to enjoin waste, where agents of nonresidents interested were within jurisdiction.

Equity-parties. If cause may be decided as between the litigant parties, the fact that an interest exists in another person beyond the jurisdiction of the court will not prevent a decree upon the merits, pp. 197, 198.

Cited and principle applied in the following cases: Story v. Livingston, 13 Pet. 375, 376, 10 L. 208, holding it to be too late to take objection for first time at hearing, because of nonjoinder of

party, where decision can be made between parties before court; Goldsmith v. Gilliland, 10 Sawy. 618, 24 Fed. 157, asserting jurisdiction of equity to quiet title upon suit of person in possession, although all adverse claimants not made parties to bill; Society, etc. v. Hartland, 2 Paine, 543, 544, F. C. 13,155, affirming decree where third person not necessary to decision on merits; Harrison v. Urann, 1 Story, 66, F. C. 6,146, holding that Circuit Court may dispense with parties who, if joined, would oust jurisdiction, provided decision on merits will not prejudice their rights; Union, etc., Co. v. Daugberg, 81 Fed. 90, holding that one tenant in common may maintain. suit in equity to restrain infringement of water rights, without joining co-tenant; Lucas v. Bank, 2 Stew. 291, 326, reversing decree dismissing bill where case could have been decided without prejudice to rights of third parties; to same effect also in Marr v. Southwick, 2 Port. 370; Heirs of Holman v. Bank, 12 Ala. 423, holding that decree may be had against one of two heirs who submits himself to jurisdiction, where other, because of nonresidence, cannot be made party; Bank v. Lee, 11 Conn. 120, 27 Am. Dec. 717, allowing one creditor to maintain suit for accounting in interest of all creditors; Thomas v. Kennedy, 24 Iowa, 403, 95 Am. Dec. 744, holding heirs of grantor not necessary parties to bill to quiet title if their interests are not affected; Lawrence v. Rokes, 53 Me. 116, overruling demurrer, where persons named as parties were nonresidents and judgment could be had without them; Florence, etc., Co. v. Grover, etc., Co., 110 Mass. 9, overruling demurrer, where presence of foreign corporation in court was unnecessary; Board of Supervisors v. Railroad Co., 24 Wis. 134, holding decree not void as between parties before the court, because of absence of necessary party; Smith v. Ford, 48 Wis. 145, 2 N. W. 150, holding cestui qui trust not necessary party to action for fraud against trustee.

Miscellaneous citations.- Erroneously cited in Reab v. McAlister, 8 Wend. 126.

12 Wheat. 199-206, CONNOR v. FEATHERSTONE.

Fraud. Case involved a question of fact upon a bill filed to set aside transfer of land warrant for fraud. Evidence deemed insufficient and bill dismissed.

Erroneously cited in the following cases: Baker v. Biddle, 1 Bald. 403, F. C. 764; Hardeman v. Downer, 39 Ga. 429; dissenting opinion, Ex parte Crane, 5 Pet. 204, 8 L. 98.

12 Wheat. 206-212, 6 L. 603, EDWARDS' LESSEE v. DARBY.

Statutory construction. In construing a doubtful and ambiguous law, contemporaneous construction of persons appointed to execute it is entitled to great respect, p. 210.

This rule has been applied in the following citing cases: Smythe v. Fiske, 23 Wall. 382, 23 L. 49, affirming construction placed upon

revenue act by treasury department; United States v. Moore, 95 U. S. 763, 24 L. 589, confirming appointment made by secretary of navy under act of congress; United States v. Pugh, 99 U. S. 269, 25 L. 323, refusing to reverse decision of Court of Claims based upon its construction of act relative to abandoned property; Hahn v. United States, 107 U. S. 406, 27 L. 529, 2 S. Ct. 497, following construction of treasury department of act relative to fines and penalties provided for violation of revenue laws; Five Per Cent. Cases, 110 U. S. 485, 28 L. 202, 4 S. Ct. 218, construing act of congress appropriating part of proceeds of sales of public lands for use of States upon admission to Union; Brown v. United States, 113 U. S. 571, 28 L. 1080, 5 S. Ct. 650, construing act relating to retirement of naval officers; United States v. Hill, 120 U. S. 180, 182, 30 L. 631, 632, 7 S. Ct. 516, 517, affirming 25 Fed. 379, in holding conclusive a uniform construction by courts and officers, of act prescribing amount of clerk's fees in naturalization proceedings; United States v. Johnson, 124 U. S. 252, 31 L. 396, 8 S. Ct. 455, affirming construction by treasury department of act providing for disposition of proceeds of sales of abandoned property; Merritt v. Cameron, 137 U. S. 552, 34 L. 775, 11 S. Ct. 178, construing act relative to ascertainment and liquidation of duties by collector of customs; Schell v. Fauché, 138 U. S. 572, 34 L. 1043, 11 S. Ct. 380, construing act prescribing form of protest against exaction of duties; United States v. Alabama, etc., R. R. Co., 142 U. S. 621, 35 L. 1136, 12 S. Ct. 308, refusing to change construction of act fixing rate of pay to railroads for carrying mails; United States v. Healey, 160 U. S. 141, 40 L. 371, 16 S. Ct. 249, confirming practice of land department in sales of desert lands; Hedden v. Iselin, 24 Blatchf. 459, 31 Fed. 268, holding collector of port not liable to penalty for exacting fee of importer, where such act was done under direction of secretary of treasury; Swayne v. Hager, 13 Sawy. 621, 37 Fed. 783, holding that definition adopted by customs officers will not be regarded as changed by act of congress unless intention to change is clearly manifest; Gear v. Grosvenor, 1 Holmes, 218, F. C. 5,291, approving practice of commissioner of patents in ordering publication of notice in suit for infringement; United States v. Union Pac. Ry. Co., 37 Fed. 555, refusing to set aside grant of lands executed by land department under act of congress and acquiesced in for long period; Rand v. United States, 38 Fed. 667, holding commissioners of treasury department entitled to fees for issuing writs according to construction of act of congress by officers of department; United States v. Barber, 74 Fed. 488, 41 U. S. App. 424, construing act of congress relative to interest on judgments recovered in Court of Claims; Grossett v. Townsend, 86 Fed. 912, S. C., sub nom. The J. D. Peters, 56 U. S. App. 721, adopting construction placed by treasury department on act permitting seamen to stipulate for allotment of wages to creditor; United States v. Dean, etc., Co.,

87 Fed. 456, 57 U. S. App. 722, following construction of revenue act under which linseed oil cake was declared to be a manufactured article and not waste; Bloxham v. Consumers, etc., Co., 36 Fla. 543, 51 Am. St. Rep. 49, 18 So. 447, 29 L. R. A. 510, holding act of comptroller assessing railroads conclusive as to liability, under act taxing railroads generally; Commonwealth v. Lockwood, 109 Mass. 339, 12 Am. Rep. 713, confirming pardon granted by governor under State Constitution; Holbrook v. Wightman, 31 Minn. 172, 17 N. W. 282, construing homestead statute; Barney v. Leeds, 51 N. H. 266, adopting contemporaneous interpretation of term head of family; Pitts v. Logan County, 3 Okl. 741, 41 Pac. 591, approving practice of territorial courts in appointing special clerks entitled to compensation under act relating to clerks generally; McSorley v. Hill, 2 Wash. 651, 27 Pac. 556, affirming grant executed by land department under private act of congress; Keane v. Brygger, 3 Wash. 351, 28 Pac. 658, approving practice of land department allowing entryman to relinquish all interest in his entry; Harrington v. Smith, 28 Wis. 68, construing statute requiring commissioners empowered to sell public lands to give certificate of sale upon payment of price; State ex rel. v. Timme, 54 Wis. 340, 11 N. W. 793, approving practice of legislature under provision in State Constitution relative to amendments. Cited, arguendo, in Baca v. Perez, 8 N. Mex. 195, 42 Pac. 164.

The following cases modify the rule in holding contemporaneous construction not to be entitled to consideration when the intent of the statute is clear to the contrary: Swift Co. v. United States, 105 U. S. 695, 26 L. 1109; United States v. Graham, 110 U. S. 221, 28 L. 127, 4 S. Ct. 218; Northern Pacific Ry. Co. v. Sanders, 47 Fed. 609; Lockwood v. Bank, 9 R. I. 333, 11 Am. Rep. 266; dissenting opinion, State v. Kelsey, 44 N. J. L. 47.

Miscellaneous. Cited also in Atkins v. Disintegrating Co., 18 Wall. 306, 21 L. 845, but application not apparent.

12 Wheat. 212-213, 6 L. 605, DEVEREAUX v. MARR.

Certificate of division.- Supreme Court has no jurisdiction of a question on which the opinions of circuit judges were opposed, where the division arose after final decision in case, p. 213.

Cited and rule applied in Daniels v. Railroad Co., 3 Wall. 254, 18 L. 225, refusing to entertain certificate where question was as to retaxation of costs after execution of judgment.

Distinguished in United States v. Chicago, 7 How. 191, 12 L 663. where question was as to matter of discretion and arose simul taneously with decision upon merits.