4 Wheat. 255-297, 4 I.. 564, BROWN v. GILMAN.

Liability of stockholders.- Certificate holders in land association hold shares under company itself as part of capital stock, and are not individually liable, for defect in original title, to assignees of such certificates, p. 280.

Cited in Brown v. Jackson, 7 Wheat. 237, 239, 245, 5 L. 443, 444, 445, applying rule in holding company liable for failure of title to interest conveyed by assignment of certificate; Butterfield v. Beardsley, 28 Mich. 421, ruling similarly in case of unincorporated joint-stock association, articles of which provide that ownership of certificate should carry undivided interest.

Lien of vendor.- Acceptance of collateral security for purchase price waives, p. 291.

Rule applied in the following citing cases: The Ann C. Pratt, 1 Curt. 351, F. C. 409, holding that where bottomry bond is void holder cannot resort to lien as security for money loaned; Rice v. Rice, 36 Fed. Rep. 861, 862, holding lien waived by acceptance of note indorsed by third party; so also in Foster v. Trustees, 3 Ala. 306, holding further that surety acquires no lien by payment of price so secured; Brown v. Morrison, 5 Ark. 222, holding mechan. ic's lien waived by acceptance of personal note with collateral security; dissenting cpinion, Sheppard v. Thomas, 26 Ark. 646, majority holding that burden is on vendee, to show intention of vendor to waive lien; Hunt v. Waterman, 12 Cal. 305, where acceptance of mortgage security held to operate as waiver; Bradford v. Marvin, 2 Fla. 472, holding, however, that mere acceptance of notes indorsed by third person is only prima facie evidence of waiver; Conover v. Warren, 1 Gilm. 501, 41 Am. Dec. 197, holding lien waived by acceptance of promissory notes of third person indorsed by vendee; Hawes v. Chaille, 129 Ind. 438, 28 N. E. S49, holding that lien cannot exist in favor of administrator where order of sale required taking of collateral security, and report indicated compliance; Kendrick v. Eggleston, 56 Iowa, 130, 41 Am. Rep. 91, 8 N. W. 787, applying rule although note so taken proved worthless; dissenting opinion, Eubank v. Poston, 5 T. B. Mon. 299, 300, 301, 302, 307, majority holding lien not waived by acceptance of personal note of vendee; Hummer v. Schott, 21 Md. 311, holding lien not waived by acceptance of veudee's note indorsed by third person; McGonigal v. Plummer, 30 Md. 429, where acceptance of bond held to operate as waiver; in Carrico v. Bank, 33 Md. 243; to same effect Ahrend v. Odiorne, 118 Mass. 266, 267, 19 Am. Rep. 453, 454, where vendor by absolute deed held to have no lien for unpaid purchase money under Massachusetts law, in absence of express agreement; Selby v. Stanley, 4 Minn. 74, as to acceptance of mortgage; Clower v. Rawlings, 9 Smedes & M. 127, 47 Am. Dec. 109,

holding lien waived by acceptance of bond; Johnson v. Sugg, 13 Smedes & M. 347; Sullivan v. Ferguson, 40 Mo. 90, as to acceptance of vendee's note indorsed by third person; Partridge v. Logan, 3 Mo. App. 515, and Blomstrom v. Dux, 175 Ill. 441, 51 N. E. 757, holding that acceptance of mortgage on land sold waives implied lien; Dudley v. Dickson, 14 N. J. Eq. 253, applying rule, although security taken was not of third person interested in purchase; Bailey v. Adams, 14 Wend. 203, holding mechanic's lien waived by agreement to look to personal credit of debtor; Fish v. Howland, 1 Paige Ch. 30, as to acceptance of vendee's note indorsed by third person; likewise in Williams v. Roberts, 5 Ohio, 41, and Pease v. Kelly, 3 Or. 419; Kauffelt v. Bower, 7 Serg. & R. 83, 87, 10 Am. Dec. 439, 442, holding vendor accepting bond is not entitled to lien as against subsequent judgment creditors of vendee; White v. Dougherty, 1 Mart. & Y. 323, 17 Am. Dec. 808, as to acceptance of mortgage upon other land; Marshall v. Christmas, 3 Humph. 618, 39 Am. Dec. 201, where vendor accepted note of vendee secured by third person; Blair v. Thompson, 11 Gratt. 443, and McCandlish v. Keene, 13 Gratt. 624, holding lien waived by acceptance of deed of trust upon land conveyed.

Cited approvingly, but without particular application of the rule to the point at issue, in the following cases: Whatley v. Central Trust Co., 76 Fed. 79, 43 U. S. App. 643; Hall v. Click, 5 Ala. 364, 39 Am. Dec. 328; Houston v. Stanton, 11 Ala. 425; Shall v. Biscoe, 18 Ark. 158; Tunnell v. Jefferson, 5 Harr. 214; Moreton v. Harrison, 1 Bland Ch. 498; Briggs v. Hill, 6 How. (Miss.) 369, 38 Am. Dec. 445; Servis v. Beatty, 32 Miss. 80; Moore v. Holcombe, 3 Leigh (Va.), 600, 24 Am. Dec. 685.

Distinguished in In re Perdue, 2 Bank. Reg. 183 (67), 19 Fed. Cas. 220, holding lien not waived by acceptance of promissory notes of vendee, subsequently adjudged bankrupt; Butts v. Cuthbertson, 6 Ga. 170, holding statutory mechanic's lien not waived by acceptance of personal note of debtor; Lagow v. Badollett, 1 Blackf. 419, 12 Am. Dec. 260, where deed expressly provided that title should remain in vendor until price paid; Delassus v. Poston, 19 Mo. 429, and Adams v. Buchanan, 49 Mo. 67, as to acceptance of personal note of vendee; Boos v. Ewing, 17 Ohio, 521, 49 Am. Dec. 480, holding that acceptance of mortgage upon land sold is merely evidence of intention to preserve prior equitable lien; Eskridge v. McClure, 2 Yerg. 87, holding lien not waived by acceptance of personal bond of vendee; also in Ross v. Whitson, 6 Yerg. 52, where acceptance was of personal note of vendee; Renick v. Ludington, 16 W. Va. 395, holding attorney's lien upon judgment not waived by acceptance of personal bond of client; De Forest v. Holum, 38 Wis. 524, holding lien not waived by acceptance of mortgage upon land conveyed.

Lien of vendor.- An express contract, that the lien shall be retained to a specified extent, is equivalent to a waiver of lien to any greater extent, p. 291.

Cited and rule applied in Phillipps v. Saunderson, 1 Smedes & M. Ch. 465, holding that where contract provided for lien to secure payment of installments, vendor could not assert lien for unpaid portion, agreed to be paid in cash; Myers v. Estell, 48 Miss. 410, 412, where vendor took lien upon two-thirds of lands sold to secure balance due; Orrick v. Durham, 79 Mo. 177, holding acceptance of mortgage as security for portion of purchase price waives lien as to remainder; likewise as in Palmer v. Deslauriers, 19 R. I. 505, 34 Atl. 1108, cited approvingly, but without particular application of the rule, in The Brig Ann C. Pratt, 1 Curt. 351, F. C. 409.

Miscellaneous citations.- Erroneously cited in Piatt v. Oliver, 1 McLean, 301, F. C. 11,114, and McCormick v. Rusch, 15 Iowa, 136. Cited also in Eubank v. Poston, 5 T. B. Mon. 291, on point that purchaser with notice of lien takes subject thereto; so also in Christopher v. Christopher, 64 Md. 587, 3 Atl. 298.

4 Wheat. 298-311, 4 L. 574, THE ESTRELLA.

Foreign laws Evidence.- Seal of new government, not recognized by United States, cannot prove itself, p. 303.

Cited in Stanglein v. State, 17 Ohio St. 463, asserting converse of rule in holding that seal of recognized government proves itself. See note, 89 Am. Dec. 686, on general subject of foreign seals.

Prize - Evidence.- Where privateer is lost subsequent to making capture, previous existence of commission on board may be proved by parol evidence, p. 304.

Cited as instance where such proof was allowed, in The Bark Vivid, 4 Ben. 325, F. C. 16,978, discussing generally subject of evidence in admiralty courts.

Prize.

Where restitution of captured property is claimed on ground that capturing force was augmented by enlistment of men in United States, in violation of neutrality, burden of proof is upon claimant to show such violation, p. 307.

Prize. Right of adjudication on questions of prize belongs exclusively to courts of captors' country, p. 308.

Cited and rule applied in Nuestra Senora de la Caridad, 4 Wheat. 502, 4 L. 625, refusing to decree restitution of Spanish vessel captured by insurgents.

Prize.- United States courts will decree restitution of vessel captured in violation of neutrality, p. 309.

Cited and principle applied in The Three Friends, 166 U. & 57, 41 L. 916, 17 S. Ct. 500, where capturing vessel fits out in United States to support insurgent power.

Miscellaneous citations.- Erroneously cited in Gifford v. Liv. ingston, 2 Den. 400, and Rohrbacher v. Jackson, 51 Miss. 752.

4 Wheat. 311-315, 4 L. 578, MILLER v. NICHOLLS.

Jurisdiction of Federal courts - Appellate.- It is sufficient to give Federal court jurisdiction of writ of error to State court, if record show that an act of congress was applicable to case, p. 315.

This rule has been applied in Willson v. Blackbird, etc., Marsh Co., 2 Pet. 251, 7 L. 414, where State court has asserted right of State to regulate commerce in absence of legislation by congress; Satterlee v. Matthewson, 2 Pet. 409, 7 L. 468, where it appeared from record that State court had passed upon question as to whether law making valid void contracts was repugnant to Federal Constitution; Harris v. Dennie, 3 Pet. 302, 7 L. 687, where question as to lien of United States was presented in special verdict in State court; Craig v. Missouri, 4 Pet. 429, 7 L. 910, ruling símilarly where record of agreed case raised question as to what constituted "bills of credit," Fisher's Lessee v. Cockerell, 5 Pet. 257, 8 L. 117, holding, however, that certificate of clerk that document was read at trial is not sufficient to make document part of record; Davis v. Packard, 6 Pet. 48, 8 L. 315, where record showed plaintiff to be a foreign consul; likewise in Beaston v. Bank, 12 Pet. 134, 9 L. 1029, where it appeared from record that action was maintainable originally in Federal courts by reason of diverse citizenship; United States v. Eliason, 16 Pet. 301, 10 L. 972, ruling similarly where jurisdictional fact appeared upon record of agreed case; dissenting opinion, Gill v. Oliver, 11 How. 549, 13 L. 808, majority denying jurisdiction, although record showed that party relied upon rights under treaty; Neilson v. Lagow, 12 How. 109, 13 L. 914, as to question involving title of United States to land; McCullough v. Virginia, 172 U. S. 118, where decision of State court was against party claiming protection of constitutional prohibition against impairing obligation of contracts. Cited also in Derby v. Jacques, 1 Cliff. 433, F. C. 3,817, as instance where Federal court allowed writ of error to decision of State court upon agreed state of facts.

Distinguished in Williams v. Norris, 12 Wheat. 124, 6 L. 573, denying jurisdiction where question to which act of congress was applicable was not raised in State court; so also in Crowell v. Randall, 10 Pet. 394, 395, 396, 9 L. 468, 469, where authorities collected and discussed. Criticised and qualified in Maxwell v. Newbold, 18 How. 515, 15 L. 508, holding that the record must show that the question was in fact raised, and further, that the decision was against the right claimed under the act. Distinguished in Columbia Water Power Co. v. Columbia Ry., etc., Co., 172 U. S. 488, where right claimed under Federal law was only incidental to main question decided.

4 Wheat. 316-437, 4 L. 579, McCULLOCH V. STATE OF

Stare decisis.- An exposition of the Constitution deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded, p. 401.

This rule has been applied in the following citing cases: Wheeler's Appeal, 45 Conn. 315, holding that where the legislature had long been accustomed to exercise quasi-judicial functions, it could pass a law allowing an appeal, where such right was already barred by statute; Fall v. Hazelrigg, 45 Ind. 585, 15 Am. Rep. 282, applying the principle in construing a statute of frauds; Justice's Opinion, 126 Mass. 594, construing a State Constitution and holding that the exclusive privilege of the house of representatives to issue "money bills," was limited to bills that transferred money from the people to the State and did not include bills appropriating money from the State treasury; Clark v. Mowyer, 5 Mich. 468, construing a statute regulating proceedings at tax sales; Payne v. County, 8 Mo. 476, applying the doctrine of stare decisis, where the action involved a statute regulating the sale of school lands, which had long been acquiesced in and held valid in a similar case. The rule is approved in the following cases, discussing the general subject of construction: Baltimore v. Board of Police, 15 Md. 458, 74 Am. Dec. 580; People v. Blodgett, 13 Mich. 139; Faribault v. Misener, 20 Min. 401; Sears v. Dewing, 14 Allen, 428.

Distinguished upon this point in State v. Fry, 4 Mo. 172, where it was held that although the States generally had not questioned the constitutionality of acts granting divorce, the court was not bound by such acquiescence and would declare a similar act void as impairing the obligation of a contract.

Construction. In construing a Constitution, the subject, the context and the intention of framers are all to be considered, p. 415.

This rule was quoted and applied in Rhode Island v. Massachusetts, 12 Pet. 723, 9 L. 1260, construing the judiciary act and holding that the jurisdiction of the Supreme Court extended to "con troversies of a civil nature" between the States.

*Note by W. A. Sutherland.