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of citizenship in suit removed from State court to Circuit Court because of citizenship, cannot be cured by affidavits in United States Supreme Court; Chafee v. Postal Telegraph Co., 35 S. C. 381, 14 S. E. 766, allowing amendment to pleadings; Johnson v. Christian, 125 U. S. 644, 31 L. 820, 8 S. Ct. 990, record cannot be amended in United States Supreme Court, but when case sent back court below may in discretion allow it; Continental Ins. Co. v. Rhoads, 119 U. S. 240, 30 L. 381, 7 S. Ct. 193, and Robertson v. Cease, 97 U. S. 650, 24 L. 1059, no objection made to jurisdiction below for not averring citizenship on reviewing judgment, court will allow amendment of declaration; Brigel v. Tug River, etc., Co., 73 Fed. 18. amendments to allegations relate back to commencement of suit, whether original declaration showed jurisdiction in court or not.

Distinguished in Jones v. Shapera, 57 Fed. 462, 13 U. S. App. 481, where holder of note payable to bearer held within origina! contract, not assignee; Holmes v. Goldsmith, 147 U. S. 157, 37 L. 121, 13 S. Ct. 290, affirming 13 Sawy. 527, 36 Fed. 486, 1 L. R. A. 818, and n., foreign indorsee may sue in Circuit Court, though accommodation maker and payee, the real debtor, are fellow citizens.

Trial.- Held not competent for Circuit Court to determine, without intervention of jury, an issue of fact in absence of counsel of party, and without written agreement to waive trial by jury, p. 83. Approved in Idaho, etc., Land Co. v. Bradbury, 132 U. S. 515, 33 L. 437, 10 S. Ct. 179.

19 Wall. 83-94, 22 L. 100, TOWN OF QUEENSBURY v. CULVER. Municipal corporations.— In absence of express constitutional prohibition, legislature may authorize municipal corporation to aid in construction of railroad, and to issue and donate bonds, or proceeds thereof, for the purpose, pp. 91, 94.

Followed in New Buffalo v. Iron Co., 105 U. S. 76, 26 L. 1025, no distinction as to legislative power, between right to authorize subscriptions to stock, and appropriations of money or credit; Northern Pac. R. Co. v. Roberts, 42 Fed. 749, State may tax people to build and maintain railroad of private corporation as affording public accommodation for travel; Perry v. Keene, 56 N. H. 547, Wood v. Oxford, 97 N. C. 232, 2 S. E. 656. Approved, arguendo, in dissenting opinion, Harlan, J., in Civil Rights Cases, 109 U. S. 38, 27 L. 848, 3 S. Ct. 41. See lengthy and valuable note approving 98 Am. Dec. 668, 679.

Distinguished in Cole v. La Grange, 113 U. S. 7, 28 L. 898, 5 S. Ct. 419, holding no constitutional power in legislature of Missouri to authorize city to issue bonds for donation to private manufacturing corporation.

Municipal corporations. It is competent for legislature to determine by what agents municipal corporation shall exert its

powers, and their acts within authority conferred are binding upon town of which they have been constituted agents, p. 92.

Approved in Sinton v. Carter County, 23 Fed. 537, and State v. Tomahawk Common Council, 96 Wis. 84, 71 N. W. 90, contract entered into in manner prescribed by legislature becomes obligation binding upon municipality; Louisville, etc., R. R. Co. v. State, 8 Heisk. 788, tax levy to discharge valid debt incurred under legislative authority, not to be resisted by citizens.

Municipal corporations.— Though interest coupons on certain town bonds were not in form promises to pay, but were mere orders on bank, signed by three town commissioners, held, that town might nevertheless be sued in assumpsit thereon; the remedy by assumpsit is not impliedly taken away by statutory provision for levy and collection of taxes to pay such interest, pp. 92-93.

Approved in Sanford v. Town of Portsmouth, 2 Flipp. 106, F. C. 12,315, holding assumpsit proper action upon municipal coupons; Shepard v. Tulare Irr. Dist., 94 Fed. 3, action brought to establish validity and amount of plaintiff's claim; arguendo, in Hockaday v. Co. Commissioners, 1 Colo. App. 377, 29 Pac. 292, to propriety of assumpsit against municipality; Culver v. Culver, 31 N. J. Eq. 449, incidentally. See notes, 64 Am. Dec. 432, and 64 Am. Dec. 443.

Municipal corporations.-- Authority to town commissioners to dispose of railroad aid bonds at not less than par, and pay over proceeds to aided railroad, held not violated by direct transfer of bonds to railroad, pp. 93, 94.

19 Wall. 94-107, 22 L. 178, ROBERTSON v. CARSON.

Principal and surety.- Bill against surety to enforce obligation of bond not showing insolvency of principal debtor, or that he cannot be brought into court, is defective; surety is entitled to have him present, p. 105.

Mortgages.- Original mortgagor is necessary party to proceeding charging fraud in execution of release, and seeking to enforce mortgage, pp. 105, 107.

Followed in McPike v. Wells, 54 Miss. 154, if decree cannot be made without seriously affecting rights of absent party, court will not proceed; Sloan v. Sloan, 21 Fla. 598, and Alexander v. Horner, 1 McCrary, 642, 643, 645, F. C. 169.

Judgments. Rights of mortgagee not made party to proceeding against his mortgagor are not affected by the decree, and he may raise same questions involved in that controversy in subsequent litigation, p. 106.

Approved in Hyatt v. McBurney, 18 S. C. 207, subsequent proceeding in regard to same subject-matter; incidentally in Carson v. Hyatt, 118 U. S. 281, 30 L. 168, 6 S. Ct. 1051, and in McBurney Carson, 99 U. S. 567, 25 L. 380, in history of litigation.

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19 Wall. 107-125, 22 L. 72, REES v. CITY OF WATERTOWN.

Courts. Power to levy taxes is to be exercised by legislative authority only, and, though repeated issue of writ of mandamus to compel tax levy by proper municipal officer has been unavailing, Federal court has no authority to appoint its marshal to execute duty thus neglected, pp. 116, 118.

Approved and followed in Thompson v. Allen Co., 115 U. S. 554, and Heine v. Levee Commrs., 19 Wall. 658, 22 L. 225, similar cases; Safe Deposit Co. v. Anniston, 96 Fed. 663, holding funds of insolvent municipality cannot be subjected by equity to payment of judgment, when there is adequate remedy by mandamus; O'Brien v. Wheelock, 78 Fed. 679, if State machinery for levying taxes in existence court may set it in motion, but has no power to create it; In re City of Chicago, 64 Fed. 899, and Garrett v. City of Memphis, 5 Fed. 870, but suggested that court may, through receiver, collect tax already levied; Newark Savings Inst. v. Panhorst, 7 Biss. 102, F. C. 10,142, and Merriwether v. Garrett, 102 U. S. 516, 26 L. 205, cannot continue in force tax levy, nor make new levy; Barkley v. Levee Commissioners, 93 U. S. 265, 23 L. 896, Heine v. Levee Commissioners, 19 Wall. 661, 22 L. 226, not only is power not inherent in judiciary, but would be invasion by Federal government of State legislative functions; Ex parte Griffiths, 118 Ind. 84, 10 Am. St. Rep. 108, 20 N. E. 513, 3 L. R. A. 399, upon judges, as such, no function can be imposed except those of judicial nature; Thompson v. Allen County, 115 U. S. 556, 563, 29 L. 474, 477, 6 S. Ct. 143, 146, dissenting opinion on distinction between power to levy and power to collect taxes already levied; dissenting opinion in Meriwether v. Garrett, 102, U. S. 516, 531, 26 L. 205, 211; Watertown v. Robinson, 69 Wis. 237, 34 N. W. 142, no other officer can be substituted in place of one designated by law. Cited in People v. Supervisor, 100 Ill. 334, to point that writ of mandamus may be repeated as often as required; Gibbs v. Green, 54 Miss. 610, arguendo, interposition of law will never be refused in proper case until shown to be powerless.

Municipal corporations. When judgment is obtained against municipality the inhabitants are not joint and several debtors with the corporation; hence to order amount of judgment to be made from private estate of citizen would be a taking of property without due process of law; he must be served with notice of proceedings. and have a day in court to make defense, pp. 119, 122.

Approved and followed in Lyon v. City of Elizabeth, 43 N. J. L. 160 (see note, 3 Dill. 195, F. C. 7,517); Meriwether v. Garrett, 102 U. S. 519, 26 L. 206, private property of citizen cannot be subjected to payment of municipality's debts, except by taxation; Grove v. Todd, 41 Md. 642, 20 Am. Rep. 80, for statement as to due process of law; Eames v. Savage, 77 Me. 223, 52 Am. Rep. 758. Cited in

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Heine v. Levee Commrs., 19 Wall. 659, 22 L. 226, holding obligation to assess taxes is no lien on property assessable. See note, 62 Am. Dec. 167, on phrase 'due process of law;" dissenting opinion in State v. Rainey, 74 Mo. 239, majority holding where judgment against municipality, of general interest to whole community, all citizens are bound.

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Constitutional law. All laws in existence when a contract is made, are necessarily referred to in it, and form a part of the measure of the obligation of the one party, and of the right ac quired by the other, p. 121.

Followed in United States v. Jefferson Co., 5 Dill. 314, 1 McCrary, 361, F. C. 15,472, statute authorizing municipal corporation to contract, and tax to meet engagement, cannot be repealed until contract satisfied; Vance v. Little Rock, 30 Ark. 441, 450, mandamus will lie to compel tax levy to meet obligation incurred before passage of act prohibiting tax levy, if such levy authorized formerly; State v. Young, 29 Minn. 529, 9 N. W. 742, but legal obligation of contract distinct from means provided by law to enforce it through action of courts.

Mandamus.- Writ of mandamus is in law and theory adequate and perfect remedy to compel the levy of taxes to satisfy judgment, and where the difficulty is in its execution only, chancery has no jurisdiction, since inability to obtain fruits of legal remedy is quite distinct from the want of a remedy, pp. 124, 125.

Followed in Finnegan v. Fernandina, 15 Fla. 384, 21 Am. Rep. 295, failure of ordinary legal remedy does not confer jurisdiction upon Court of Chancery; McLean County Precinct v. Deposit Bank of Owensboro, 81 Ky. 259, 261, Gatling v. Commissioner, 92 N. C. 541, 53 Am. Rep. 436, Thompson v. Allen County, 115 U. S. 554, 29 L. 473, 6 S. Ct. 142, United States v. Labette County, 2 McCrary, 28, 7 Fed. 321, Fleming v. Trowsdale, 85 Fed. 190, 54 U. S. App. 577, and Mayor v. Wetumpka Wharf Co., 63 Ala. 633, only ground for equitable relief to be found in statute authorizing tax levy. See notes, 18 Am. Dec. 240, 98 Am. Dec. 690, and 85 Am. Dec. 544. Cited also in Orr v. Quimby, 54 N. H. 651, as illustration of defeat of legal process in case where, in theory, effectual; United States v. Justices of Lauderdale County, 10 Fed. 462, not in contempt of court for officer to resign to avoid obedience to writ of mandamus; Shurtleff v. Wiscasset, 74 Me. 141, not reason for refusing to render judgment that no process provided by statute by which it may be enforced; and to same effect is dissenting opinion in O'Connor v. Memphis, 6 Lea, 756.

19 Wall. 125-138, 22 L. 148, THE PENNSYLVANIA.

Collision. Every steamship, when in a fog, should go at a moderate speed, depending upon the circumstances of the case, but reduced as risk of meeting vessels is increased, pp. 133, 134.

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Approved, with suggestion as to what constitutes moderate speed, in The Nacoochee, 137 U. S. 339, 34 L. 690, 11 S. Ct. 125, no right to go at rate dangerous to any craft which she might have seen; The City of Guatamala, 7 Ben. 525, F. C. 2,747, fault to go so fast that could not avoid collision, though, at moment of seeing danger, took all precautions; The City of Panama, 5 Sawy. 65, F. C. 2,764, final test of moderateness of speed where other vessel not at fault is fact of collision; The State of Alabama, 17 Fed. 852, 853, no steamer's speed is moderate so long as she is going at ordinary full speed; Clare v. Providence S. S. Co., 22 Blatchf 198, 20 Fed. 536, 537, no case, holding twelve and a half or thirteen miles an hour, moderate speed in fog; The Lepanto, 21 Fed. 660, seven or eight knots repeatedly held not moderate; The Nacoochee, 22 Fed. 857, The Oregon, 27 Fed. 755, and The Martello, 34 Fed. 74, speed not moderate because could go slower and impossible to avoid vessel within distance she would be visible; The Normandie, 43 Fed. 157, two-thirds maximum speed held excessive; La Normandie, 58 Fed. 429, 14 U. S. App. 655, and The Saale, 63 Fed. 480, 26 U. S. App. 164, speed so great as to make impossible to avoid vessel within two or three times length, not moderate; The Trave, 68 Fed. 391, 35 U. S. App. 321, reducing speed only half dozen revolutions from full speed, within five minutes after entering fog, not moderate; The Rhode Island, 17 Fed. 557, 558, McCabe v. Old Dominion S. S. Co., 31 Fed. 238, and The Leland, 19 Fed. 774, criterion of moderate speed, condition of steamer to be stopped immediately on apprehension of danger; Leonard v. Whit will, 10 Ben. 647, F. C. 8,261, moderateness of speed to be determined by what might reasonably have been expected to happen; The H. F. Dimock. 77 Fed. 228, 230, 33 U. S. App. 647, The Nacoochee, 24 Blatchf. 108, 28 Fed. 466, and The Servia, 149 U. S. 155, 37 L. 686, 13 S. Ct. 821; in dictum in Northwest. Transp. Co. v. Boston Marine Ins. Co., 41 Fed. 797. See note, 75 Am. Dec. 608, on duty of vessels in fog.

Collision. If speed necessary for steerage-way is not moderate, under the circumstances, in a fog, and much-frequented route, it is duty of steamer to lay to, p. 134.

Collision. When a ship, at time of collision, is in actual violation of statutory rule, intended to prevent collisions, it is no more than reasonable presumption that fault was at least contributory cause of disaster, and burden rests upon ship, of showing, not merely that fault might not have been one of causes, or that it probably was not, but that it could not have been, p. 136.

This rule has, without important variation, been approved and accepted in following cases: Richelieu Nav. Co. v. Boston Ins. Co., 136 U. S. 422, 34 L. 403, 10 S. Ct. 937, Belden v. Chase, 150 U. S. 699, 37 L. 1227, 14 S. Ct. 272, The Martello, 153 U. S. 74, 38 L. 641, 14 S. Ct. 728, Leonard v. Whitwill, 10 Ben. 653, F. C. 8,261, Clare v.

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