means conclusive. While it is perhaps susceptible of the construction put upon it by the husband, it is entirely consistent with the theory that she had been abandoned by her husband without cause; was left in a desperate state of mind, was anxious to regain his favor, and to make any sacrifice to induce him to take her back and resume their former relations. She hints at no misconduct of her own, but intimates that he is disgusted with her, and for just reason, for having claimed her pension. She says that when he went to Spain her pain was unbearable; that she had become completely desperate, and was advised to demand her pension because of the fact that he was going to reside abroad permanently, and she finally commenced proceedings in view of her desperate situation. So far from confessing adultery, she says that if those who wished her ill "have told you more, they have made a mistake, for the truth about my comportment is that it cannot be complained of." There is nothing indicating that after their separation her conduct had not been irreproachable.

The paragraph much relied upon is as follows: "I keep yet on my face the shame of what has happened, notwithstanding that it has been already many years since we parted.

mand my pension in view of the fact that you were going to reside permanently in Spain; then I finally did commence proceedings in view of my desperate situation, and nothing further came of the matter during your absence.

"If the Lacsons, who wish me ill, have told you more, they have made a mistake, for the truth about my comportment is that it cannot be complained of; you can secure information regarding my conduct during our separation here in Valladolid.

"I keep yet on my face the shame of what has happened, notwithstanding that it has been already many years since we parted. Therefore, my husband, forgive me; erase what has happened, remember me for God's love; behold our dark fate. In you I trust my future.

"E., I have heard that you have had some misfortunes. I send my sympathy, although I am unworthy of your presence.

"I also learn from Modesto that you do not wish to have my pension sent.

Do as you wish.

"Good-bye, E., take good care of yourself, and command,

"Your faithful servant Q. B. S. P.,

"March 6, 1899.

AGUEDA BENEDICTO."

Therefore, my husband, forgive me; erase what has happened; remember me for God's love; behold our dark fate. In you I trust my future." This is by no means necessarily a confession of guilt.

The letter is that of a broken-hearted woman, who is willing to make any sacrifice necessary to be restored to her husband's favor and to submit to any humiliation necessary to regain his affection. She makes no confession of adultery, points to her comportment" since their separation as showing nothing that could be complained of, but in her frequent repetition of the claim she had made for her. pension points to that as the source of her husband's disgust. Bearing in mind that her husband had seduced her when she was only thirteen years of age, and that since their separation, and for nearly a decade, he had not only repudiated her, but had maintained unlawful relations with at least three other women, all of whom had borne him children, we think that, even if two constructions were possible, the Court of First Instance was right in putting that construction upon the letter which was most favorable to the plaintiff.

We have reached the conclusion that there is no such preponderance of evidence in favor of the theory of plaintiff's guilt, as authorized the Supreme Court to set aside the conclusions of the court below upon the ground that these findings were plainly and manifestly against the weight of the evidence. In this connection it is proper to bear in mind that the trial judge had all these witnesses before him, and doubtless formed his conclusions largely from their appearance on the stand, their manner of giving testimony and their apparent credibility. Under the circumstances we think the Supreme Court should have affirmed rather than reversed the action of the lower court.

While the right of the plaintiff to her proportion of the conjugal property, to alimony pending suit and to other allowances claimed is the basis of our jurisdiction, the decree of the Supreme Court in dismissing plaintiff's petition renders it unnecessary to review the action of the Court of First Instance in fixing the amount that it held plaintiff was entitled to recover.

We are therefore of opinion that the decree of the Supreme Court dismissing the petition must be reversed, and the cause remanded to that court for further proceedings not inconsistent with this opinion.

Reversed.

MR. JUSTICE WHITE, MR. JUSTICE PECKHAM, MR. JUSTICE HOLMES and MR. JUSTICE DAY dissented upon the question of jurisdiction.

KEEN v. KEEN.

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI.

No. 188. Argued March 7, 8, 1906.-Decided April 2, 1906.

Where the only assignment of error does not involve any Federal question the mere statement in the motion for new trial that the judgment deprives plaintiff in error of his property without due process of law, denies him equal protection of the laws, and is contrary to the Fourteenth Amendment, without any allegation as to why the judgment has this effect, no notice of which is taken by the state court in denying the motion does not properly raise a Federal question so as to give this court jurisdiction to review under § 709, Rev. Stat., even though the writ be allowed by the presiding judge of the state court.

What facts constitute a common-law marriage in a State is purely a local, and not a Federal, question.

THIS was an action of ejectment begun by Sophronia K. Keen in the Circuit Court of St. Charles County against Ellis Keen, to recover a tract of land in that county to which plaintiff averred she was lawfully entitled. The petition was in the usual form of a declaration in ejectment, and the answer a general denial.

Eli Keen was the common source of title, plaintiff claiming one-half of the land, subject to the payment of debts, under section 2939 of the Revised Statutes of Missouri, upon the ground that she was the widow of Eli Keen, who died in

1901, leaving, as plaintiff alleged, no children capable of inheriting.

Defendant claimed to be the legitimate child of an alleged common-law marriage between Eli Keen, a white man, and Phoebe, a negro woman.

There was judgment below for the plaintiff, which was affirmed by the Supreme Court. 184 Missouri, 358.

Mr. David P. Dyer for plaintiff in error.

Mr. C. W. Bates, with whom Mr. John F. McGinnis and Mr. C. W. Wilson were on the brief, for defendant in error, submitted.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

The court deduced, as a conclusion of law from certain facts found, that no marriage at common law had ever existed between Eli Keen and Phoebe, a former slave of Eli's father, and that the former died without leaving any child or children or other descendants capable of inheriting from him, and hence that plaintiff was entitled to recover possession of an undivided half of the lands as his wife. No ceremonial marriage was claimed.

It is difficult to see any facts upon which to found our jurisdiction of the case. No Federal question appears in the pleadings or in the testimony, a transcript of which is contained in the record. The first glimmer of one appears in the motion for a new trial in the Circuit Court, in which it is charged that the judgment deprived the defendant of his property without due process of law, and also denied him the equal protection of the laws, contrary to the Fourteenth Amendment to the Constitution. But no allegation is made as to why the judgment had this effect. No notice was taken of the constitutional point in the opinion of the Supreme Court, although the writ of error from this court was allowed by the presiding

judge. In the assignment of errors filed in this court the only error charged is that, although the court below found there was no common-law marriage between Eli Keen and Phoebe, yet in its special findings, it found all the facts required to establish such common-law marriage between them, and that from the facts so found the law presumed a null and void marriage between said Eli Keen and Phoebe Keen, the issue of which was capable of inheriting under the statutes of Missouri. Revised Statutes, § 2918. No reference is made to the Constitution of the United States in this connection. In addition to this, the question what facts constitute a common-law marriage is purely a local one. We have searched the record for a Federal question, but have found none. The writ of error is, therefore,

Dismissed.

HOUSTON AND TEXAS CENTRAL RAILROAD COMPANY v. MAYES.

ERROR TO THE COURT OF CIVIL APPEALS FOR THE THIRD DISTRICT OF THE STATE OF TEXAS.

No. 198. Argued March 8, 1906.-Decided April 2, 1906.

An absolute requirement that a railroad engaged in interstate commerce shall furnish a certain number of cars on a specified day, to transport merchandise to another State, regardless of every other consideration except strikes and other public calamities, transcends the police power of the States and amounts to a burden upon interstate commerce; and articles 4497-5000, Rev. Stat. Texas, being such a requirement, are, when applied to interstate commerce shipments, void as a violation of the commerce clause of the Federal Constitution.

Such a regulation cannot be sustained as to interstate commerce shipments as an exercise of the police power of the State.

THIS was an action begun by Mayes in the District Court of Llano County, Texas, against the Houston and Texas Central Railroad Company to recover a penalty of $475, by reason of defendant's failure to furnish seventeen stock cars, applied for in VOL. CCI-21