Void judgment will not support an execution or order of sale founded on it. Cited in Mayhew v. Davis, 4 McLean, 222, Fed. Cas. 9347, as to deed for land sold for taxes which showed that no legal notice of sale had been given; Camp v. Wood, 10 Watts, 122, where jurisdiction of Justice. Court limited to one hundred dollars and judgment given for one hundred dollars and thirty-five cents.

Void sheriff's deed will not support possessory title under laws of Tennessee, which require grant, or deed founded on grant.

Cited and rule applied in Redfield v. Parks, 132 U. S. 250, 33 L. Ed. 331, 10 Sup. Ct. 87, to possessory title founded on void tax deed in Arkansas, Cited in dissenting opinion in Moore v. Brown, 11 How. 435, 18 L. Ed. 760, as having been founded on a misconception of the decisions in Tennessee and subsequently overruled by Green v. Neal, 6 Pet. 291, 8 L. Ed. 402, majority holding that void tax deed was insufficient to support statute of limitations in Illinois; Toll v. Wright, 37 Mich. 99, as having been overruled by Green v. Neal, 6 Pet. 291, 8 L. Ed. 402; Gray v. Darby, Mart. & Y. 424, as having properly followed decisions of courts of State since overruled.

Distinguished in Wilson v. Atkinson, 77 Cal. 488, 11 Am. St. Rep. 301, 20 Pac. 67, as being founded on local law and holding that tax deed void on its face might, under California code, be sufficient to give color of title to support title by adverse possession; Hirst v. Xeter Realty, 138 La. 406, 70 South. 342, holding in action to annul tax deed, in absence of evidence of contents, it was presumed valid.

Miscellaneous. Cited erroneously in Wilkins v. Judge, 14 Ala. 138.

9 Wheat. 553–555, 6 L. Ed. 158, CATLETT v. BRODIE.

Bond on appeal when intended to operate as supersedeas must be for amount to secure whole judgment if affirmed.

Approved in Hardesty v. United States, 184 Fed. 273, 106 C. C. A. 411, holding on affirmance of judgment imposing fine, United States could recover amount of fine from surety on appeal bond; Egan v. Chicago Great Western Ry. Co., 163 Fed. 350, holding under conformity statute Circuit Court on affirmance could issue execution against surety on appeal bond; Wood v. Brown, 104 Fed. 206, holding measure of damages under supersedeas, provided for by Rev. Stats., §§ 1000, 1010, 1012 (Colo.), to reverse personal judgment for money, is amount due obligee by the terms of judgment, just damages for delay, and costs; Bankers Surety Co. v. Security Trust Co., 39 App. D. C. 357, holding surety on appeal bond was, under its terms, liable for amount of judgment; Russian Cement Co. v. Le Page Co., 174 Mass. 358, 55 N. E. 74, holding under rule 13, United States Circuit Court of Appeals for First Circuit (31 C. C. A. liii, 90 Fed. liii), a supersedeas bond on appeal does not dissolve attachment; Stafford v. Union Bank of Louisiana, 16 How. 139, 14 L. Ed. 878, holding when stay of exe

cution not desired, then, under act of 1794, security only required to answer costs; United States v. Dashiel, 3 Wall. 701, 18 L. Ed. 270, following rule; Davidson v. Lanier, 4 Wall. 454, 18 L. Ed. 379, holding that the judge's approval of the bond need not be in writing; French v. Shoemaker, 12 Wall. 99, 20 L. Ed. 271, holding the bond must cover damages for delay, costs and interest; dissenting opinion in Telegraph Co. v. Eyser, 19 Wall. 429, 22 L. Ed. 44, majority holding under judiciary act of 1872, § 11, may be executed after sixty days from judgment with permission of judge; Butchers' Assn. v. Slaughter House Co., 1 Woods, 54, Fed. Cas. 2234, holding both appeals and writs of error operated as supersedeas without an express order; The Sydney, 47 Fed. 263, applying rule as extended by rule 23; Rosenstein v. Tarr, 51 Fed. 370, applying rule as varied by Jerome v. McCarter, 21 Wall. 17, 22 L. Ed. 515, holding bond covered compensation for delay as well as amount payable in money under the decree appealed from; Many v. Sitzer, 6 Gray, 144, holding that on dismissal of writ of error defendant was liable, under the bond, for the original judgment, and the costs inserted therein by the judge below; Rose v. Richmond Co., 17 Nev. 76, 27 Pac. 1117, holding that amount of security was left to discretion of court; Ex parte Dunn, 6 S. C. 309, holding Supreme Court had full power to decide all questions as to scope of a writ of error; Harris v. Wheeler, 8 Blatchf. 83, Fed. Cas. 6130, holding execution could not issue until entry of formal decree; Tucker v. Lee, 3 Cr. C. C. 686, 687, Fed. Cas. 14,221, as to amount which could be recovered on bond, and method of assigning breach of condition; Richardson v. Richardson, 82 Mich. 307, 46 N. W. 671, as to power of State Supreme Court to fix penalty of appeal bond; Mason v. Germaine, 1 Mont. 281, holding same rules as to bonds applied to appeals from State Supreme Court and from Circuit Courts. Overruled in Jerome v. McCarter, 21 Wall. 29, 22 L. Ed. 516, holding that since adoption of rule 29 amount was in the discretion of the judge below.

Distinguishable in Vaill v. Town Council, 18 R. I. 410, 28 Atl. 345, as not applicable to an appeal to State court from doings of a town council requiring a particular bond.

Criticised in Kountze v. Omaha Hotel Co., 107 U. S. 386, 27 L. Ed. 613, 2 Sup. Ct. 918, holding amount recoverable under bond in ordinary foreclosure suit was limited to the costs on appeal, waste, and, perhaps, taxes paid and loss from improper insurance.

Distinguished in Cook v. Smith, 67 Kan. 55, 72 Pac. 525, in action on bond conditioned for payment of damages occasioned by stay of money judgment allegation that debtor insolvent when judgment rendered no basis for substantial damages.

Bond on appeal, if to act as a supersedeas, must be filed within ten days after judgment.

Cited in Bigler v. Waller, 12 Wall. 149, 20 L. Ed. 262, following rule; dissenting opinion in Telegraph Co. v. Eyser, 19 Wall. 429, 22 L. Ed. 44,

majority holding that since the amending act of 1872, time was extended to sixty days.

In this case proper appeal bond not being filed, cause ordered dismissed unless sufficient bond filed thirty days after end of term.

Approved in Gay v. Hudson River Elec. Power Co., 190 Fed. 821, 822, 824, holding when judge of Circuit Court of Appeals allowed appeal from Circuit Court and fixed bond to be approved by "this court," neither judge nor clerk of court from which appeal was taken could approve bond; Brown v. Northwestern Mut. Life Ins. Co., 119 Fed. 150, holding obligee in bond which supersedes order confirming sale of real estate, directing execution and delivery of possession, is entitled to rents and profits while he is kept out of possession; Walker v. Houghtaling, 104 Fed. 514, holding where plaintiff in error has failed to file bond on writ of error in specified amount, but cause has been transferred to Circuit Court of Appeals, although time for suing out writ of error has elapsed, court may allow another bond to be filed, but not supersedeas; Whitney v. Frisbie, 6 D. C. 272, holding where appeal bond was inadequate, remedy would seem to be by application to dismiss appeal; Anson, Bangs & Co. v. Blue Ridge R. R. Co., 23 How. 2, 16 L. Ed. 518, granting appellant sixty days to file bond; Hudson v. Parker, 156 U. S. 287, 39 L. Ed. 428, 15 Sup. Ct. 454, holding that on writ of error in criminal case, justice of Supreme Court may admit to bail and fix amount of bond.

Requirement or permission of new or additional appeal or supersedeas bond in appellate court. Note, 10 Ann. Cas. 805.

Writ of error from United States Supreme Court as staying proceedings in State court. Note, Ann. Cas. 1912A, 259.

Practice and procedure governing transfer of causes to Federal Supreme Court for review. Note, 66 L. R. A. 861.

Miscellaneous. Cited in Bryan v. Bates, 12 Allen, 213, holding that Supreme Court was sole tribunal to determine as to sufficiency of bond taken on writ of error.

9 Wheat. 556-557, 6 L. Ed. 159, BAITS v. PETERS.

Simple contract debt is not extinguished by subsequent special contract to settle at future date, which elapses before suit brought, and no settlement is made.

Cited in Kelsey v. Western, 2 N. Y. 511, holding that bond for payment of a legacy charged on real estate given by devisee does not extinguish charge; Scott v. Howsman, 2 McLean, 185, Fed. Cas. 12,532, holding that assumpsit, not covenant, is maintainable on single contract subsequent to and varying terms of contract under seal.

Action on original claim upon failure to pay at time stipulated in accord or compromise. Note, 45 L. R. A. (N. S.) 1064.

9 Wheat. 558–565, 6 L. Ed. 160, SEBREE v. DORR.

fatal.

Declaration on promissory note must state where payable, omission is

Cited in Lowe v. Bliss, 24 Ill. 169, 76 Am. Dec. 743, holding declaration describing note, without any place of payment, not sustained by note payable specifically at a certain place; also in Faulkner v. Faulkner, 73 Mo. 336, and Orr. v. Hopkins, 3 N. M. 47, 1 Pac. 183, both to same effect; Mygatt v. City of Green Bay, 1 Biss. 298, Fed. Cas. 9998, showing that rate of interest, exchange and place of demand are controlled by place named for payment; Roberts v. Mason, 1 Ala. 375, holding that when note names place for payment a demand at that place is condition précedent to indorser's liability.

If note is payable to order and names place for payment, declaration must state these facts or there will be fatal variance.

Approved in New York Life Ins. Co. v. McPherson, 137 Ala. 119, 33 South. 826, holding defense to action on life insurance policy that same was forfeited by failure to pay premium at Central Nat. Bank of New York is not sustained by producing premium note payable at Lowey Banking Co., Atlanta, Ga.; Wilkins v. McGuire, 2 App. D. C. 452, holding presentment not required as between maker and payee when not required by terms of note; Orr v. Hopkins, 3 N. M. (15) 47, 1 Pac. 183, where note declared on was negotiable generally, and the note proved was payable at a particular place.

Modified in Harrison v. Weaver, 2 Port. 544, holding that omission to plead that note was payable to order was an immaterial variance; Sappington v. Pulliam, 3 Scam. 387, as not applicable to statute of Illinois making notes assignable though they contain no words of negotiability.

Secondary evidence of contents of written instruments is not admissible when originals are within control or custody of party.

Approved in Doughty v. Funk, 24 Okl. 320, 103 Pac. 637, holding action not maintainable on promissory note on behalf of indorsee unless original be produced, where it is in custody of plaintiff; Halderman v. Halderman, Hempst. 560, Fed. Cas. 5909, applying rule to copy of account of deceased partner with firm in suit for settlement of account; The Alice, 12 Fed. 924, refusing to admit copy of bill of lading certified by United States consul; Anglo-American Packing Co. v. Cannon, 31 Fed. 314, holding each part of telegram is primary evidence, but letter-press copy of letter or telegram only secondary; Guthrie v. Merrill, 4 Kan. 193, holding it error to admit copy of contract when original known to be in custody of third party; Hoitt v. Moulton, 21 N. H. 591, where parol evidence of a mortgage not admitted when it disclosed the existence of higher evidence; Putnam v. Goodall, 31 N. H. 424, holding parol evidence which showed the existence of a lease not admissible to prove the lease; Vanauken v. Hornbeek, 14 N. J. L. 181, 25 Am. Dec. 510, holding in action on note worn out and destroyed, proof of the destruction was necessary.

Modified in United States v. Doebler, 1 Bald. 521, Fed. Cas. 14,977, holding that degree of diligence in procuring production of original depends on nature of transaction, importance of paper, and the circumstances.

Rules of evidence requiring production of original documents will not be dispensed with merely because proof of due execution is not always required.

Cited in Matossy v. Frosh, 9 Tex. 614, as to a statute of Kentucky dispensing with proof of execution of a note when signature not denied upon oath.

Notwithstanding statute dispenses with proof of instrument sued upon, its production at trial still required.

Cited in Lustig v. McCulloch, 10 Colo. App. 45, holding acceptor of bill entitled to have same surrendered over to court's custody upon entry of judgment against him.

9 Wheat. 565–573, 6 L. Ed. 161, KERR v. MOON.

Title and disposition of real property are exclusively subject to laws of place where situate.

Approved in Crossett Lumber Co. v. Files, 104 Ark. 602, 149 S. W. 909, following rule; Thomas v. Woods, 173 Fed. 593, 19 Ann. Cas. 1080, 26 L. R. A. (N. S.) 1188, 97 C. C. A. 535, holding right of bankrupt's wife to dower governed by law of State where land is situated; Kane v. Luckman, 131 Fed. 617, applying rule to contract for sale of cows in exchange for farm; Readman v. Ferguson, 13 App. D. C. 71, holding validity of will determined by loans of State where realty devised was situated; Chidsey v. Brooks, 130 Ga. 220, 14 Ann. Cas. 975, 60 S. E. 530, holding devisee under will probated in another State could not recover lands in Georgia until will was probated in that State; Succession of Hasling, 114 La. 295, 38 South. 174, validity of will made in Louisiana by citizen thereof devising realty in Mississippi is governed by laws of latter; McCormick v. Sullivant, 10 Wheat. 202, 6 L. Ed. 303, will probated in Pennsylvania held inoperative to pass land in Virginia unless proved there; Taylor v. Benham, 5 How. 273, 12 L. Ed. 149, holding failure to record a will will not avoid sale thereunder, unless required by laws of State where land situate; Burbank v. Conrad, 96 U. S. 298, 24 L. Ed. 726, holding that in Massachusetts acknowledgment and recording are necessary to perfect title as against strangers; United States v. Ames, 1 Wood. & M. 80, Fed. Cas. 14,441, holding that State laws apply to government lands over which there has been no cession of jurisdiction, unless otherwise required by Constitution, treaties or statutes of United States; Magill v. Brown, 16 Fed. Cas. 447, construing devise of land to charitable uses; In re Zug, 30 Fed. Cas. 948, in questions touching tenure of real estate, Federal courts are governed by lex loci; Leavens v. Butler, 8 Port. 401, holding County Court could not decree division of lands in another State; Goodman v. Winter,