the citizenship of the parties, it must appear affirmatively in the record that the payee could have maintained the action on the same ground. Parker v. Ormsby, 81.

2. When the pleadings in an action in a Circuit Court of the United States fail to show averments of diverse citizenship necessary to give the court jurisdiction, the fault cannot be cured by making such an averment in a remitter by the plaintiff of a portion of the judgment. Denny v. Pironi, 121.

3. While it is not necessary that the essential facts, necessary to give a Circuit Court jurisdiction on the ground of diverse citizenship, should be averred in the pleadings, they must appear in such papers as properly constitute the record on which judgment is entered, and not in averments which are improperly and surreptitiously introduced into the record for the purpose of healing a defect in this particular. The cases on this subject reviewed. Ib.

4. When a defendant sued in a Circuit Court of the United States appears and pleads to the merits, he waives any right to challenge thereafter the jurisdiction of the court on the ground that the suit has been brought in the wrong district. St. Louis & San Francisco Railway Co. v. McBride, 127.

5. When, in pursuance of the jurisdiction conferred by the laws of the United States, a Circuit Court of the United States takes possession of the property of a defendant, situated within a State, and proceeds to final decree, determining the rights of all parties to that property, its decree is not superseded and its jurisdiction subsequently ended by reason of subsequent proceedings in the courts of the State looking to the administration of that property in accordance with the laws of the State. Leadville Coal Co. v. McCreery, 475.

6. A decree in such case, determining the claims of all creditors and their right to share in the distribution of the property, is final as to all who had notice and knowledge of the proceedings. Ib. ·

7. In this case there were no irregularities in the proceedings which can be challenged here. Ib.

8. The transfer of an overdue note and mortgage for a valuable consideration to a bona fide purchaser, is not a collusive transaction which prevents the transferee from maintaining an action upon them, under the provisions of the act of March 3, 1875, 18 Stat. 470, c. 137, § 1, although made to make a case to be tried in a Federal Court. Cross v. Allen, 528.

See CASES AFFIRMED, 8;

EQUITY, 6;

JURISDICTION, A, 8;

REMOVAL OF CAUSES.

D. OF DISTRICT COURTS OF THE UNITED STATES.

See COURTS OF THE UNITED STATES;

JURISDICTION, A, 8.

E. OF TERRITORIAL COURTS.

A member of the Cherokee Nation, committing adultery with an unmarried woman within the limits of its Territory, is amenable only to the courts of the Nation. Mayfield, In re, 107.

In the Indian Territory a right of action survives against a railroad company inflicting injuries upon a passenger which result in death. St. Louis & San Francisco Railway Co. v. McBride, 127.

LACHES.

Grymes v. Sanders, 93 U. S. 55, affirmed and applied to the point that where a party desires to rescind a contract upon the ground of mistake or fraud, he must, upon discovery of the facts, at once announce his purpose and adhere to it, and that if he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. McLean v. Clapp, 429.

See EQUITY, 2;

LIMITATION, STATUTES OF, 2.

LIMITATION, STATUTES OF.

1. The payment by the principal debtor, after the death of his wife, of interest upon a note, signed by him alone, but secured by a mortgage upon her separate real estate executed by her, operates in Oregon to keep alive the lien upon the property for the security of the mortgage debt, as against the statute of limitations of that State. Cross v. Allen, 528.

2. So long as demands secured by a mortgage are not barred by the statute of limitations, there can be no laches in prosecuting a suit upon the mortgage to enforce them. Ib.

See EQUITY, 6;

LOCAL LAW, 2;
NATIONAL BANK, 12.

LIMITED LIABILITY.

1. The law of limited liability is part of the maritime law of the United States, and is in force upon navigable rivers above tide water, and applies to enrolled and licensed vessels exclusively engaged in commerce on such a river. Garnett, In re, 1.

2. The provisions of § 4283 of the Revised Statutes relieving the owner of a vessel from liability for a loss occasioned without his privity or knowledge, apply to an insurance company, to which, as insurer, a vessel has been abandoned, and which was charged with negligence in causing the vessel to be so towed that she sank and became a total loss, and the life of an employé on board of her was lost. Craig v. Continental Insurance Co., 638.

3. The identity of the vessel was not lost, she being officered and manned and having on board a cargo. Ib.

4. The provisions of § 4283 apply to cases of personal injury and death. Ib. 5. The extinguishment of liability may be availed of as matter of law, on the facts, in a suit to recover for the death of the employé. Ib. 6. The provisions of the statute apply to a vessel used on the Great Lakes, she not being "used in rivers or inland navigation," within the meaning of § 4289. Ib.

7. The insurer being a corporation, the privity or knowledge of a person who was alleged to have been guilty of the negligence, and who was not a managing officer of the corporation, or employed directly by it, and whose powers were no greater than those of the master of a vessel, was not the privity or knowledge of the corporation. Ib.

LETTER.

See EVIDENCE, 3.

LOCAL LAW.

1. Under the constitution and laws of Oregon, in force when these contracts were made, a married woman could bind her separate property for the payment of her husband's debts. Cross v. Allen, 528.

2. An action was brought upon three promissory notes with interest payable annually, each providing that if not paid when due it was to bear the rate of interest of the principal, "it being expressly agreed that in default of payment of interest when due the principal is to become due and collectible." Each note recited the fact that it was secured by a deed of trust executed to a named trustee on certain described property. The deed described the notes and declared: "provided, however, it is agreed that if at any time said interest shall remain unpaid for as much as ninety days after the same shall become due and payable, then the whole debt as well as the interest shall become and be due and payable, and further it is understood and agreed that if said note first falling due shall remain unpaid thereafter for as much as six months, then the whole debt is to be and become due and payable, and this trust, in either event, to be executed and foreclosed, at the option of said third party." It also contained a clause to the effect that if the money due on the notes was not paid "according to the tenor and effect of said notes in hand, and according to the terms, stipulations and agreements of this instrument," the deed should remain in force, and the trustee, or in the event of his death or refusal to act, then at the request of the holder of said notes, the sheriff may proceed to sell said described property, or any part thereof, at public vendue, to the highest bidder for cash, and shall receive the proceeds of said sale, out of which shall be paid, first, the costs and expenses of executing this trust, including compensation to said trustee, or said sheriff for his services, and next to the

said third party or holder of said note whatever sum of money may be due thereon, and the remainder, if any, shall be paid to the said parties of the first part, or their legal representatives." The statute of Texas provided that "actions for debt where the indebtedness is evidenced by or founded upon any contract in writing, must be commenced and prosecuted within four years after the cause of action accrued, and not afterwards." The case was heard by the court, and a general finding made. No bill of exceptions were signed. Held, (1) The error in this case was one of law, apparent on the record, and need not have been presented by bill of exceptions; (2) Construing the notes and the deeds as contemporaneous agreements, relating to the same subject matter, the limitation of four years under the law of Texas ran from the dates named in the respective notes, as the dates of maturity, and not from the date of the default in the payment of interest; otherwise, if the option given to the payee or holder by the deed of trust, to make them due upon such default, had been exercised by the payee or the holder. Moline Plow Co. v. Webb, 616. TAX SALE;

Illinois.

Kentucky.
Massachusetts.
New York.
Oregon.
Pennsylvania.
Texas.
Virginia.

See

TRUST;
USURY.

See CONSTITUTIONAL LAW, A, 4.
See CONSTITUTIONAL LAW, A, 3.
See NATIONAL BANK, 11, 12.
See LIMITATION, STATUTES OF, 1.
See CONSTITUTIONAL LAW, A, 1.
See FRAUDULENT CONVEYANCE.
See CONSTITUTIONAL LAW, A, 5.

MANDAMUS.

A writ of mandamus does not lie from this court to the judges of the Supreme Court of a State, directing them to restore to office an attorney and counsellor whom that court had disbarred, and to vacate the order of disbarment. In re Green, 325.

MORTGAGE.

See EQUITY, 6.

MOTION FOR REHEARING.

Upon the rendition of a decree, a petition and motion for a rehearing was filed. At the succeeding term of the court an order was entered, granting a rehearing, which order was entered as of a previous term. The record contained no order showing the continuance of the motion and the petition for rehearing to the succeeding term. Held, that the presumption must be indulged, in support of the action of a court having jurisdiction of the parties and the subject matter-nothing to the contrary affirmatively appearing-that the facts existed which justified its action; and, therefore, that the court granted the application for a rehearing at the previous term. Fowler v. Equitable Trust Co., 384.

MUNICIPAL CORPORATION.

See CONSTITUTIONAL LAW, A, 6;
CONTRACT, 1.

NATIONAL BANK.

1. A director of a national bank is not precluded from resignation within the year by the provision in Rev. Stat. § 5145 that when elected he shall hold office for one year, and until his successor is elected. Briggs v. Spaulding, 132.

2. Persons who are elected into a board of directors of a national bank, about which there is no reason to suppose anything wrong, but which becomes bankrupt in ninety days after their election, are not to be held personally responsible to the bank because they did not compel an investigation, or personally conduct an examination. Ib. 3. Directors of a national bank must exercise ordinary care and prudence in the administration of the affairs of a bank, and this includes something more than officiating as figureheads: they are entitled under the law to commit the banking business, as defined, to their duly authorized officers, but this does not absolve them from the duty of reasonable supervision, nor ought they to be permitted to be shielded from liability because of want of knowledge of wrong doing, if that ignorance is the result of gross inattention. Ib.

4. If a director of a national bank is seriously ill, it is within the power of the other directors to give him leave of absence for a term of one year, instead of requiring him to resign, and if frauds are committed during his absence and without his knowledge, whereby the bank suffers loss, he is not responsible for them. Ib.

5. Applying these principles to this case, Held, (1) That the defendant Cushing, having in good faith sold his bank stock and taken proper steps for its transfer, and orally tendered his resignation as a director to the