Cases, 95 N. C. 433, 59 Am. Rep. 249, holding statute against freight rate discrimination inapplicable to interstate commerce.

See valuable note on exclusive power granted to Congress, 59 Am. Rep. 269, and n. Cited, arguendo, Missouri, etc., R. R. v. Haber, 56 Kan. 708, 44 Pac. 637, holding Federal act to prevent exportation of diseased cattle did not repeal Kansas quarantine laws; State v. Morgan, 2 S. Dak. 51, 48 N. W. 320, holding mercantile agencies not exclusively within the control of Congress. See note on concurrent authority of Congress and State legislatures, 27 Am. St. Rep. 550.

Qualified in Hudson Co. v. State, 24 N. J. L. 729, holding regulation of tolls and ferriage between States not delegated to general government.

Miscellaneous.- Principal case cited in Kaeiser v. Illinois Cent. R. R., 5 McCrary, 499, 18 Fed. 153, containing concise statement of status of all points included in syllabi: 1. The transportation of merchandise is commerce. 2. The transportation of merchandise from one State to another is commerce among States. 3. To fix the limit of charges of transportation is to regulate commerce. 4. A statute fixing such charges is a regulation. 5. The power to regulate commerce is vested in Congress. 6. This power vested in Congress is exclusive. 7. Hence a State may not directly or indirectly interfere in these matters; O'Neal v. Robinson, 45 Ala. 535, dicta cited to proposition that argument drawn from mere similitude of words would be a sophism in construing code registration provisions; Padelford v. Savannah, 14 Ga. 452, holding Brown v. Maryland, 12 Wheat. 419, 6 L. 678, was overruled by the Passenger Cases, but this case is not one of commerce; Collens v. Clinton, 26 La. Ann. 413, miscited in dissenting opinion, majority holding under Louisiana Constitution assembly may increase or diminish number of courts; Fifield v. Close, 15 Mich. 508, holding Federal stamp act void as to tax on legal proceedings; McKee v. Judd, 12 N. Y. 626. miscited, case holding assignment of all property assigns right of action for tortious conversion; Flora v. Carbeau, 38 N. Y. 116, miscitation, case holding New York Court of Appeals has jurisdiction in cases originally commenced in justices' courts; State v. Cutshall, 110 N. C. 549, 15 S. E. 264, 16 L. R. A. 133. Cited, arguendo, holding North Carolina statute, declaring felonious bigamist marriages, void as to extra-territorial crime; Ex parte Romanes, 1 Utah, 24, holding proper arrest for extradition for crime in another State.

7 How. 573-586, 12 L. 284, TYLER v. HAND.

A general demurrer lies only for defects in substance, while a special demurrer lies for defects in form, apparent upon the face of the pleading, p. 582.

Appeal and error.- Where a case is before the court on a general demurrer, the entire record will be considered and judgment given

7 How. 573-586

Notes on U. S. Reports.

718

for the party who, on the whole, appears to be entitled to it, pp. 582, 583.

Official bonds - Estoppel. In a suit upon certain bonds executed to the president, admitted by the defendants to have been given by them, such bonds, though not prescribed by law, being voluntarily given, are valid and defendants are estopped from denying, where the political character of the president is shown, either the right of the obligees to sue, or the delivery of the bonds as a matter of form, p. 583.

Cited and followed in United States v. Garlinghouse, 4 Ben. 200, F. C. 15,189, holding United States can take a valid bond to secure performance of duties independent of act of Congress; Chadwick v. United States, 3 Fed. 754, holding addition of condition in surety's bond does not relieve him from liability; Diamond, etc., Co. v. United States, 24 Blatchf. 446, 31 Fed. 274, holding bond of indemnity given for an accommodation, commissioner not required to grant, valid; Rogers v. United States, 32 Fed. 890, holding bond voluntarily given valid, though incumbent not an officer; Hoboken v. Harrison, 30 N. J. L. 78, holding bond voluntarily given by de facto collector of assessments enforceable; Yale v. Flanders, 4 Wis. 100, holding injunction bond a valid obligation, though not complying strictly with statutory requirements; Lewis v. Stout, 22 Wis. 237, collecting cases, and holding bond, if not good statutory bond, good as voluntary obligation. See valuable note discussing this subject in 14 Am. Dec. 105. Cited, arguendo, in United States v. Jones, 77 Fed. 722, collecting cases, and holding statutory bond valid one so far as it is prospective in character.

Distinguished in United States v. Mynderse, 27 Fed. Cas. 62, holding distiller's bond, though voluntarily given, void; Stevens v. Hay, 6 Cush. 233, holding no action maintainable on bond given to selectmen, when not required to be so given by law.

Objection that a bond is invalid for want of sufficient consideration cannot be taken advantage of by demurrer, but must be pleaded in bar to the action, p. 583.

Demurrer.- Where declaration is demurred to on ground of insufficient citizenship or improper place of abode of plaintiff, such demurrer is a demurrer in abatement, and will not justify a judgment; for if the matter of abatement be extrinsic, it must be pleaded; if intrinsic, the court will act upon motion or notice it of themselves, p. 584.

Cited and followed in Van Antwerp v. Hulburd, 7 Blatchf. 442, F. C. 16,826, holding that bill must be dismissed which shows no jurisdiction.

Demurrer.- Where the demurrer admits that the bonds were given by the defendant and the recitals in the declaration are as

the facts were expressed in the bonds, the failure to specify the individual cestui que use cannot be a ground of special demurrer, when the uses were general in the bonds, p. 585.

7 How. 586-594, 12 L. 829, KENNEDY v. HUNT.

Public grants.- An act of Congress, recognizing a grant as a perfect title, being a matter within the exclusive jurisdiction of the political department, is binding upon the courts of justice, p. 592.

Appeal and error.— A decision of a State court, construing a perfected Spanish title, and holding that certain riparian rights were covered by it, does not raise any Federal question, so as to give the Federal Supreme Court jurisdiction, pp. 593, 594.

Cited and followed in Moreland v. Page, 20 How. 523, 15 L. 1010, holding no jurisdiction in United States Supreme Court over decision of State court construing land boundaries; Phillips v. Mound, etc., Assn., 124 U. S. 612, 31 L. 591, 8 S. Ct. 659, dismissing writ of error on ground that adjudication of State court on partition of lands was final.

7 How. 595-611, 12 L. 834, HUGG v. AUGUSTA INSURANCE & BANKING CO.

Marine insurance. The contract of insurance on freight is that goods shall arrive at the port of delivery, notwithstanding the perils insured against, and that, if they fail thus to arrive, and the owner is thereby unable to earn his freight, the underwriter will make it good, p. 604.

Cited and followed in Silloway v. Neptune Ins. Co., 12 Gray, 85, holding no total loss where goods were actually delivered to consignees at port of delivery. Cited, arguendo, in Sumner v. Walker, 30 Fed. 264, holding negligence of prior connecting carrier no offset against freight earned; Rogers v. West, 9 Ind. 406, case holding freight charges no offset in suit for damages for loss before voyage commenced.

Marine insurance. The contract of insurance on freight does not undertake that the goods shall be delivered in a sound or merchantable state, or that the vessel in which they are shipped shall be safe against the dangers of the sea, p. 604.

Marine insurance. There must be a destruction of the article in specie, but if the commodity be damaged so that it would not be allowed to remain on board consistently with the health of the crew or safety of the vessel, and for these or like causes, it should from necessity be destroyed by being thrown overboard, notwithstanding the article existed in specie, and might have been carried on in the damaged condition, there would still be a total loss within the meaning of the policy, pp. 605, 606, 607.

7 How. 595-611

Notes on U. S. Reports.

720

Cited and approving, and this holding relied upon in Insurance Co. v. Fogarty, 19 Wall. 643, 22 L. 218, holding, where no part of machinery was delivered in condition for use, there was total loss; Ridyard v. Phillips, 4 Blatchf. 444, F. C. 11,820, holding, where there is total loss, shipper is not liable for freight; Gould v. Louisiana Ins. Co., 20 La. Ann. 261, holding, where policy stipulates "only against general average and absolute total loss," underwriters are bound only in that event; Williams v. Kennebec, etc., Ins. Co., 31 Me. 461, 462, 464, loss is total where no part of the thing shipped can be delivered in specie; Merchants, etc., Ins. Co. v. Butler, 20 Md. 56, holding, where loss is caused by peril insured against, intervening negligence does not avoid insurance; Tudor v. N. E., etc., Ins. Co., 12 Cush. 556, it is total loss if the article by peril of the sea becomes incapable of delivery; Parsons v. Manufacturers' Ins. Co., 16 Gray, 468, holding articles' damaged and thrown overboard, totally lost, but not those damaged and transshipped; Pierce v. Columbia Ins. Co., 14 Allen, 323, holding underwriters liable for loss of goods on wrecked transshipping vessel; Willard v. Millers, etc., Ins. Co., 24 Mo. 566, holding, if vessel cannot be repaired in reasonable time, loss is total, though pro rata freight be received; De Peyster v. Sun, etc., Ins. Co., 19 N. Y. 278, 75 Am. Dec. 333, holding perishable articles, though existing in specie, totally lost when incapable of forwarding to destination; Hubbell v. Great, etc., Ins. Co., 74 N. Y. 252, 254, holding question does not depend on loss of ship, but on possibility of earning freight by forwarding. See valuable note on subject of Total Loss, 2 Am. Dec. 179. Cited, arguendo, in Washburn, etc., Co. v. Reliance Ins. Co., 82 Fed. 297, holding underwriters not liable for constructive total loss, except where they consent to abandonment; Royal Ins. Co. v. McIntyre, 90 Tex. 174, 177, 59 Am. St. Rep. 799, 803, 37 S. W. 1069, 1071, 35 L. R. A. 674, 676, collecting cases and holding no total loss so long as remnant of building may be used as basis for restoration.

Distinguished in Lord v. Neptune Ins. Co., 10 Gray, 117, holding underwriters not liable where goods could have arrived in specie at port of destination; Williams v. Hartford Ins. Co., 54 Cal. 451, 35 Am. Rep. 79, holding total loss does not mean extinction.

Marine insurance.- Under a policy of freight, goods remaining in specie capable of being carried on, may be more profitably sold at an intermediate port, but in that event the owner acts upon his own responsibility, and if he elects to receive the goods at a place short of destination, he is responsible for the freight, p. 608.

Cited and followed in Murray v. Ætna Ins. Co., 4 Biss. 422, F. C. 9,955, applying principle to vessel laid up for winter when shippers sold freight.

Marine insurance. It is the duty of the owner of the vessel to repair his own, or to procure another at the port of distress to

carry on the cargo, unless this would consume too much time or cost more than the value thus saved to the underwriter on freight, pp. 608, 609.

Cited and followed in Murray v. Etna Ins. Co., 4 Biss. 422, F. C. 9,955, holding duty of vessel laid up for winter to complete voyage in spring; Hugg v. Baltimore, etc., Co., 35 Md. 422, 6 Am. Rep. 428, holding owners of goods liable for cost of transshipment over freight; Lemont v. Lord, 52 Me. 394, collecting cases and holding owners of transshipping vessel cannot recover from owners of original vessel excess freight.

Marine insurance.- Under policy of insurance on freight on round voyage, where the vessel earned freight outward bound, and sustained loss on the return voyage, it was held the insurers were not entitled to deduction for the outward freight, p. 611.

Cited and followed in Insurance Co., etc., v. Mordecai, 22 How. 118, 16 L. 332, and Thwing v. Washington Ins. Co., 10 Gray, 454, both holding underwriters not entitled to deduction on freight earned upon insurance of vessel condemned on completion of outward voyage.

Distinguished in Lincoln v. Boston, etc., Ins. Co., 159 Mass. 341, 34 N. E. 457, holding underwriters not liable for freight of voyage to succeed loss, though charter-party was outstanding.

7 How. 612-626, 12 L. 841, PECK v. JENNESS.

Supreme Court's jurisdiction extends to cases where record shows that the highest court of judicature of a State has decided against a title claimed under a Federal statute, p. 619.

Cited and followed in Johnson v. Bishop, Woolw. 330, 8 N. B. R. 537, F. C. 7,373, holding assignee's remedy for wrong in State courts is under judiciary act.

Appellate courts will not examine matters not necessary to be determined, and will presume the regularity of judicial proceedings not directly in issue, p. 619.

Bankruptcy — Attachment.- The proviso of the second section of the bankrupt act protects all liens valid by the laws of the respective States from any construction of said act that would tend in anywise to annul, destroy or impair them. Hence, an attachment of property on mesne process being a lien by the laws of New Hampshire, is protected by the terms of the above proviso, p. 619. Cited and followed in Gibson v. Warden, 14 Wall. 248, 20 L. 800, holding assignees take possession subject to all liens upon the property; In re Joslyn, 2 Biss. 238, 3 N. B. R. 119, F. C. 7,550, holding lien of landlord for rent binds property against assignee; Campbell's Case, 1 Abb. (U. S.) 189, 1 N. B. R. 169, F. C. 2,349, holding bankrupt's final certificate does not operate to destroy attachment VOL. IV - 46