9 Wheat. 325-353, 6 L. Ed. 101, TAYLOR v. MASON.

Devise to parties in succession, upon condition that devisee change his name, etc., creates immediate estate on condition subsequent, liable to be divested on nonperformance of condition.

Approved in Green v. Gordon, 38 App. D. C. 455, 456, applying rule in construing terms of similar will; Crumphȧ v. Barfield & Wilson Co., 114 Ga. 573, 40 S. E. 810, holding where property was devised to a daughter to hold as long as she desired, and when dissatisfied the property should revert, a holding for thirteen years was election to accept the fee; Smith v. Smith, 64 Neb. 568, 90 N. W. 562, holding that devise upon condition that devisee should be baptized under and maintain certain name was not complied with by being baptized and not maintaining the name; Webster v. Cooper, 14 How. 501, 14 L. Ed. 516, condition being that devisee, on coming into possession, should take testator's name; Jenkins v. Merritt, 17 Fla. 322, as to a pecuniary legacy the income to be paid to two beneficiaries while they resided together; Rogan v. Walker, 1 Wis. 562, holding that condition for cesser of an estate for failure to perform obligations of bond was subsequent.

Conditions precedent and subsequent-Impossibility of performance.
Note, 70 Am. St. Rep. 834.

Nature of condition must be determined by intention of testator and sought in will.

Cited in Jackson v. Berry, 8 N. J. L. 242, holding there are no technical words to distinguish the two classes of conditions.

Where condition depends on will of devisee, failure to perform is equivalent to a refusal.

Cited in Den v. Hance, 11 N. J. L. 251, to a devise to become void on refusal of devisee to convey part of property as directed.

Where condition is to be performed before devisee has possession, but is coupled with condition subsequent, both conditions are subsequent. Cited as an instance of condition precedent in Den v. Messenger, 33 N. J. L. 505.

Condition that devisee in fee shall not make any change, relative to property, in his life is void.

Cited in Hardy v. Galloway, 111 N. C. 523, 32 Am. St. Rep. 829, 15 S. E. 890, as instance of a condition void as a restraint on alienation.

Restraints on alienation. Note, 57 Am. Dec. 489.

Miscellaneous. Cited in Virginia etc. Wheel Co. v. Harris, 103 Va. 714, 49 S. E. 993, construing averment that master promised to repair machinery but failed and "refused" to do so; not in point in Georgia T. & T. Co. v. Oliver, 1 Ga. 40, Lampley v. Scott, 24 Miss. 534, Tompkins v. Saltmarsh,

14 Serg & R. 281, and Green v. Dyersburg, 2 Flipp. 497, Fed. Cas. 5756, as to dependent and independent covenants of a contract.

9 Wheat. 354-361, 6 L. Ed. 109, McGEERY v. SOMERVILLE.

Under acts 11 and 12 William III, chapter 6, title cannot be acquired by heirship through alien ancestor, if living, as, at common law, that ancestor would, but for his alienage, be heir.

Cited and applying the common-law rule in Levy v. McCartee, 6 Pet. 115, 8 L. Ed. 339, to descent in New York, where statute of William III was not in force; McKinney v. Saviego, 18 How. 239, 15 L. Ed. 367, showing that rule of descent in Texas followed statute of William III; United States v. Wong Kim Ark, 169 U. S. 661, 662, 42 L. Ed. 895, 18 Sup. Ct. 462, and Lynch v. Clarke, 1 Sand. Ch. 670, as having assumed that children of alien parentage, but born in the United States, were citizens; Dixon v. Walker, 30 Fed. Cas. 1077, case of descent in District of Columbia, where statute of William III is in force; Bartlett v. Morris, 9 Port. 271, holding that same rules of interpretation applied to private as to public statutes; Furenes v. Mickelson, 86 Iowa, 512, 53 N. W. 418, as governing law of inheritance in Iowa; as not in conflict with Orr v. Hodgson, 4 Wheat. 453, 4 L. Ed. 613, in Jackson v. Green, 7 Wend. 340; People v. Irvin, 21 Wend. 130, in interpreting New York statute which agreed with 11 and 12 William III; Wright v. Methodist Episcopal Church, 1 Hoff. Ch. 266, as having settled the law decisively; McLean v. Swanton, 13 N. Y. 539, as that there was no material difference between statute of New York and 11 and 12 William III.

Doubted and distinguished in Sullivan v. Burnett, 105 U. S. 340, 341, 26 L. Ed. 1126, suggesting that the English statute had not been correctly quoted and that the ruling did not apply to Missouri.

Effect of State statutes and Constitutions upon inheritance through alien. Note, 31 L. R. A. 150.

Alien's right to inherit. Note, 31 L. R. A. 177.

Miscellaneous. Cited, but not in point, in Campbell's Case, 2 Bland Ch. 237, 20 Am. Dec. 378.

9 Wheat. 362-380, 6 L. Ed. 111, THE APOLLON.

Probable cause is not matter of defense in municipal seizure in admiralty, except where so made by statute.

Cited in Averill v. Smith, 17 Wall. 93, 94, 21 L. Ed. 617, intimating that court in principal case referred to section 89 of collection act as in point; Stacey v. Emery, 97 U. S. 643, 24 L. Ed. 1035, holding that certificate given under section 89 extended to party directing the seizure; Smith v. Averill, 7 Blatchf. 31, Fed. Cas. 13,007, where certificate had been given under statute; United States v. Reindeer, 27 Fed. Cas. 768, holding that if certificate is refused, the party seizing is liable in damages; Williams v. Delano,

155 Mass. 14, 28 N. E. 1123, holding that where seizure is made as provided by statute, the party seizing is not liable to an action at law.

Distinguished in The Palmyra, 12 Wheat. 17, 6 L. Ed. 536, holding it not decided that in maritime torts generally, probable cause might not be a defense.

Probable cause is defense in case of capture jure belli, exempts captors from damages and, if strong enough, gives them costs and expenses.

Approved in The Olinde Rodrigues, 174 U. S. 536, 43 L. Ed. 1076, 19 Sup. Ct. 862, holding in prize cause spoliation of papers is probable cause for capture; The Thompson, 3 Wall. 162, 18 L. Ed. 57, case of seizure of ship during Rebellion; The Ship La Manche, 2 Sprague, 216, Fed. Cas. 8004, holding that if case be one of further proof there is probable cause.

One nation cannot seize vessels for offenses against its own laws in ports of another.

Approved in Rundell v. La Compagnie Generale Transatlantique, 100 Fed. 660, holding United States Court of Admiralty can entertain suit for damages and apply French law when libelant's intestate was drowned on the high seas by collision, while sailing under French flag; dissenting opinion in Crapo v. Kelly, 16 Wall. 633, 21 L. Ed. 439, arguendo; dissenting opinion in United States v. Erie Ry. Co., 106 U. S. 335, 27 L. Ed. 155, 1 Sup. Ct. 232, on question whether United States could tax bonds of nonresident aliens; Brown v. Duchesne, 2 Curt. 373, Fed. Cas. 2004, as instance of unlawful seizure; People v. McLeod, 25 Wend. 590, 1 Hill, 424, 37 Am. Dec. 353, applying ruling to arrest of a foreign subject for offense committed in territorial waters.

Jurisdiction of prosecution for homicide where act occurs in one state or country and death in another. Note, Ann. Cas. 1913E, 469. Jurisdiction over sea. Note, 46 L. R. A. 267.

Phrases in municipal laws must always be restricted in construction to places and persons upon whom legislature has authority and jurisdiction. Distinguished in Green v. State, 66 Ala. 44, 41 Am. Rep. 745, holding reasoning not applicable where crime is perpetrated partly in one State and partly in another; Ex parte McNeeley, 36 W. Va. 92, 32 Am. St. Rep. 838, 14 S. E. 438, holding crime committed in one country cannot, by legislative fiction, be considered an offense in another.

When boundary between two nations runs along middle of river, whole river is common to both for purposes of navigation.

Approved in United States v. Rio Grande Irr. Co., 174 U. S. 697, 43 L. Ed. 1139, 19 Sup. Ct. 773, holding District Court of New Mexico cannot take judicial notice that Rio Grande River is non-navigable in New Mexico; State v. Muncie Pulp, 119 Tenn. 94, 104 S. W. 449, applying rule to river forming boundary between States; dissenting opinion in United States v.

Rodgers, 150 U. S. 272, 37 L. Ed. 1079, 14 Sup. Ct. 118, open waters of Great Lakes not "high seas"; The Atlantic, 1 Ware, 122, Fed. Cas. 621, applying rule to waters separating the United States from British provinces; The Pilot, 48 Fed. 320, applying rule to the waters of the strait of Juan de Fuca.

Distinguished in The Pilot, 50 Fed. 439, 7 U. S. App. 188, as not authority for contention that no part of Strait of Juan de Fuca was foreign water. Jurisdiction over boundary rivers. Note, 65 L. R. A. 959.

Arrest of offending vessel must be restrained to places were jurisdiction of arresting country is complete to its own waters or to ocean.

Cited in Cucullu v. Louisiana Ins. Co., 5 Mart. (N. S.) 482, 16 Am. Dec. 208, limiting warranty under policy warranted free from loss from illicit trading to rightful seizures.

Under act of 1799, vessel entering American waters is not compelled to make entry at custom-house of district unless bound to American port.

Cited in The Javirena, 67 Fed. 155, 30 U. S. App. 219, holding Revised Statutes, section 2773, corresponds substantially with the provision construed in principal case.

Measure of damages in admiralty tort does not depend on probable profits of voyage either on ship or cargo; rules of damage laid down.

Cited in Pacific Ins. Co. v. Conard, 1 Bald. 144, Fed. Cas. 10,647, applying rule in action against marshal; The Rhode Island, Abb. Adm. 104, Fed. Cas. 10,740a, following rule; The Alice, 12 Fed. 502, holding that measure of damages for nondelivery of cargo is value at place of shipment, not destination; The Sam Brown, 29 Fed. 651, limiting damages in action of tort to actual damages sustained at time and place of injury; Danolds v. State, 89 N. Y. 50, 42 Am. Rep. 284, holding that same rule applied against government as against individuals; Steam Nav. Co. v. Merchants' Bank, 6 How. 435, 12 L. Ed. 504, respecting liability of owner for tort of master.

Lost profits from tort as damages.
Interest on unliquidated damages.

Note, 52 L. R. A. 61.
Note, 28 L. R. A. (N. S.) 9.

In cases of tort as well as ex contractu, damages for delay or detention of vessel may be awarded.

Approved in Southern Ry. Co. v. Lewis, 165 Ala. 455, 51 South. 864, holding carrier liable for demurrage charges incurred by delay in delivering lumber to vessel; Southern Ry. Co. v. Melton, 133 Ga. 294, 65 S. E. 672, upholding rule of railroad commission imposing penalty on carrier for delay in furnishing cars; The Nuestra Senora de Regla, 108 U. S. 103, 27 L. Ed. 666, 2 Sup. Ct. 293, case of unlawful seizure as prize; The Conquerre, 166 U. S. 125, 126, 41 L. Ed. 945, 17 Sup. Ct. 516, limiting rule to actual proved loss by detention; The Narragansett, Olc. 395, Fed. Cas.

10,020, applying rule to demurrage while ship under repairs from collision; The Rhode Island, Abb. Adm. 104, Fed. Cas. 11,740a, and Sprague v. West, Abb. Adm. 554, Fed. Cas. 13,255, both following rule; Hawgood v. One Thousand Three Hundred and Ten Tons of Coal, 21 Fed. 685, 686, ship owner has lien on cargo for demurrage though bill of lading has no demurrage clause; Falkenburg v. Clark, 11 R. I. 283, as correctly defining demurrage and adopting it.

Counsel's fees may be allowed both in prize and instance cases.

Cited in United States v. Waters, 133 U. S. 212, 33 L. Ed. 595, 10 Sup. Ct. 250, attorney general cannot re-examine and reverse action of court in allowing district attorney counsel fee for securing conviction in criminal case; Pacific Ins. Co. v. Conard, 1 Bald. 145, Fed. Cas. 10,647, applying rule in action against marshal; Jay v. Almy, 1 Wood. & M. 271, Fed. Cas. 7236, as instance of proper allowance, but improper when not allowed in previous action resulting in nonsuit; Allen v. Blunt, 2 Wood. & M. 147, Fed. Cas. 217, where rule extended to damage suits for infringement of patents; The Wreath, 30 Fed. Cas. 653, where costs were allowed, the court saying, the allowance, when made, is on exceptional and extraordinary

reasons.

Overruled in The Margaret v. The Connestoga, 2 Wall. Jr. 123, Fed. Cas. 9070, where court pointedly refused to follow ruling. Referred to in general discussion in Sturgis v. The Joseph Johnson, 23 Fed. Cas. 327, saying that statute of February 26, 1853, had taken away the discretion of the court to award counsel's fees; The City of Augusta, 80 Fed. 303, remarking that rule was changed by act of 1853.

The court is bound to take judicial notice of public facts and geographical positions.

Approved in Ex parte Lair, 177 Fed. 794, holding court took judicial notice that sea-going vessel carrying immigrants from France to United States did not find port of entry in northern district of Illinois; Peyroux v. Howard, 7 Pet. 342, 8 L. Ed. 707, position and flow of tide at New Orleans; The Minna, Blatchf. Pr. 335, Fed. Cas. 9634, and The Annie, Blatchf. Pr. 337, Fed. Cas. 417, notorious practice of blockade running by ship owners; Lands v. Cargo of Coal, 4 Fed. 480, applying ruling to navigable waters; Ex parte Lane, 6 Fed. 37, fact that Ontario is British province; Brumagim v. Bradshaw, 39 Cal. 40, judicial notice taken of geographical divisions of counties and incorporated cities; Hipes v. Cochran, 13 Ind. 177, on question of sufficiency of notice dependent upon increased facilities of transport; State v. Wagner, 61 Me. 186, holding court could take judicial notice of position of island, in county of York.

Judicial notice of geographical facts. Note, 12 Ann. Cas. 927.

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