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ney could not waive client's rights create? and enter his appearance. Cited-genera!! Ins. Co., 28 Fed. 638. See note, 75 Am. The

Judgments.- Fraud cannot be pleaded. I upon judgment in another, p. 81.

Approved and followed in Hanley L. 536, 6 S. Ct. 243, sustaining action tained in Pennsylvania; Simmons T 1062, 11 S. Ct. 375, dismissing bil proceedings in Louisiana, on groun 3 Woods, 7, F. C. 1,039, overruim: *** ticed by attorneys in former acting etc., Co., 29 Fed. 610, holding al tween adverse parties in forme judgment; Duff v. Hopkins, 25 * to writ of scire facias, issued a: Peninsular, etc., Co. v. Eells Hambleton v. Glenn, 72 Md St. of another State, not imper ̈* Ing; Kansas City, etc., R. I Fed. 435, holding plaint** * next friend, even if frau." Platt, 79 Fed. 573, 49 T ment among parties tr Alkire, etc., Co. v. Righ court conclusive; Amb212, 28 N. E. 845. T inadmissible; Snow fense in suit on jude available; Mooney fraud in decree c Knapp v. Thom unconditional and summary Distinguis 304, holdir procured

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162 U. S. 303, payable in legalx. 71, holding parjudgment, constructc., of parties. Cited gopinion in Woodruff Ct. 827.

circumstances is allowed or to aid construction, but tinct undertaking, p. 113. Reed v. Insurance Co., 95 U. insurance policy by aid of cirk, 102 U. S. 65, 26 L. 47, admitit parties contracted for hay, to be ; Mellen v. Ford, 28 Fed. 646, cong and stucco-work," in contract, with; Chicago, etc., R. R. Co. v. Pyne, 30 ous contract by its language, where there cumstances of value to assist the court; Fed. 32, 2 U. S. App. 177, excluding paro: ning of word drought," as used in contract; v. Western, etc., Co.. 59 Fed. 57, 18 U. S. App. ence offered to change effect of contract for bailShipman v. Saltsburg Coal Co., 62 Fed. 148, 17 C olding contract, by its terms, did not require parties in monthly installments; Consolidated Coal, etc., Co. 16 Ind. App. 511, 44 N. E. 1007, holding contract for decertain number of brick per month, did not require whole elivered on the first of each month; Tuxbury v. French, 41 13, 1 N. W. 906, holding extrinsic evidence necessary to ex: Bruce v n Nat. Bank, 79 N. Y. 165, 35 Am. Rep. %, wher et was silent, lessee could not be held uplication; Heirs of Watrous v. McKie, bound by written contract to abide by ilar controversy; Talbott v. Richmond, holding, with reference to deed and at there was no dedication to public; 32 Gratt. 538, int ting contract

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Cited in Lamar v. Browne, 92 U. S. 194, 23 L. 653, holding agents of government not liable for retention of captured cotton; Young v. United States, 97 U. S. 58, 24 L. 997, holding cotton, belonging to foreigner, who aided Rebellion, subject to confiscation. See notes, 87 Am. Dec. 509, and 91 Am. Dec. 280.

War.- Pardoned enemy, as well as loyal enemy, could avail himself of benefits of captured and abandoned property act, if he sued in time prescribed by that act, p. 96.

Court of Claims has no jurisdiction of action, commenced two years after suppression of Rebellion, by one who gave it aid and comfort, to recover money in treasury, arising from sale of captured property, p. 98.

Affirmed in Rice v. United States, 122 U. S. 616, 620, 7 S. Ct. 1384, 1385, holding claim, under act of 1877, barred by lapse of time; Lane v. United States, 154 U. S. 616, 22 L. 743, 14 S. Ct. 1204, holding claim barred by two years' lapse; Austin v. United States, 155 U. S. 426, 39 L. 209, 15 S. Ct. 171, holding claimant not entitled to recover under special act of March 3, 1883, for want of loyalty.

Actions. Where right and remedy are created by same statute, the remedy provided is exclusive of all others; hence, two years' limitation only applies to action for restoration of captured property, p. 98.

22 Wall. 99-104, 22 L. 816, UNITED STATES v. INSURANCE COS.

Pleading. Plea of general issue admits capacity of plaintiff corporation to sue, as does going to trial upon the merits, p. 101.

Followed in Imperial Ref. Co. v. Wyman, 38 Fed. 576, 3 L. R. A. 505, and n., holding, under general denial, incorporation of plaintiff could not be questioned; Emerson Co. v. Nimocks, 88 Fed. 281, holding objection to plaintiff's corporate existence waived by an

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States. Officers acting under color of office illegally, are de facto officers, and their acts are valid as concerns third parties and the public; hence, enactments of de facto legislatures in rebel States, during the war, by which corporations were created, were valid, p. 103.

Cited in Joseph v. Cawthorn, 74 Ala. 415, holding attachment proceedings not affected by failure of clerk to take oath of office; dissenting opinion in Pennywit v. Foote, 27 Ohio St. 638, majority holding judgment of court connected with insurrectionary government of Arkansas, not binding on non-resident.

Distinguished in Bragg v. Tuffts, 49 Ark. 562, 6 8. W. 161, holding ordinance of Arkansas convention, for revenue, being a war measure and hostile to Union, void.

Courts.- Corporations can sue in Court of Claims as any other individual, for restoration of property, under captured and abandoned property act of 1863, p. 104.

22 Wall. 105-115, 22 L. 713. MARYLAND v. RAILROAD CO.

Tender.- Implication that undertaking in contract is to pay in gold, must be found in language of contract, and undertaking cannot be presumed from expectation of parties, p. 111.

Cited with approval in Woodruff v. Mississippi, 162 U. S. 303, 40 L. 977, 16 S. Ct. 824, holding bonds valid and payable in legaltender notes; Heirs of Watrous v. McKie, 54 Tex. 71, holding parties bound by written contract to abide by a judgment, construction not being dependent upon expectations, etc., of parties. Cited generally, without applying rule, in dissenting opinion in Woodruff v. Mississippi, 162 U. S. 311, 40 L. 980, 16 S. Ct. 827.

Contracts. Reference to surrounding circumstances is allowed to ascertain subject-matter of contract or to aid construction, but not for purpose of adding new and distinct undertaking, p. 113.

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Cited as authority and followed in Reed v. Insurance Co., 95 U. S. 31, construing clause in marine insurance policy by aid of circumstances; United States v. Peck, 102 U. S. 65, 26 L. 47, admitting parol evidence to prove that parties contracted for hay, to be gathered in a particular region; Mellen v. Ford, 28 Fed. 646, construing meaning of "plastering and stucco-work," in contract, without aid of parol testimony; Chicago, etc., R. R. Co. v. Pyne, 30 Fed. 88, construing ambiguous contract by its language, where there were no extraneous circumstances of value to assist the court; Sorensen v. Keyser, 51 Fed. 32, 2 U. S. App. 177, excluding paro evidence to show meaning of word drought," as used in contract; Union Stock-Yards v. Western, etc., Co., 59 Fed. 57, 18 U. S. App. 438, rejecting evidence offered to change effect of contract for bailment of cattle; Shipman v. Saltsburg Coal Co., 62 Fed. 148, 17 C S. App. 625, holding contract, by its terms, did not require parties to take coal in monthly installments; Consolidated Coal, etc., Oo. v. Mercer, 16 Ind. App. 511, 44 N. E. 1007, holding contract for delivery of certain number of brick per month, did not require whole to be delivered on the first of each month; Tuxbury v. French, 41 Mich. 13, 1 N. W. 906, holding extrinsic evidence necessary to explain will; Bruce v. Fulton Nat. Bank, 79 N. Y. 165, 35 Am. Rep 510, holding, where contract was silent, lessee could not be held bound to renew lease by implication; Heirs of Watrous v. McKie, 54 Tex. 71, holding parties bound by written contract to abide by a certain judgment in a similar controversy; Talbott v. Richmond, etc., R. R. Co., 31 Gratt. 689, holding, with reference to deed and surrounding circumstances, that there was no dedication to public; Bank of Old Dom. v. McVeigh, 32 Gratt. 538, interpreting contract

to enter consent judgment, by its terms and by aid of parol evidence; Collier v. Southern Exp. Co., 32 Gratt. 724, holding contract of surety could not be varied by parol evidence; Isham v. Parker, 3 Wash. 764, 29 Pac. 838, applying rule to interpretation of contract between attorney and client; concurring opinion in Mississippi, etc., Co. v. Wheelihan, 94 Wis. 102, 68 N. W. 880, majority holding omitted words in contract could not be constructively supplied.

Tender.- Acts of Maryland, 1836 and 1839, constituting contract between State and railroad for issue of bonds in aid of latter, did not provide for payment of interest and dividends in any particular kind of money, and fact that until 1865 they were paid in sterling funds cannot change contract, and they may be paid in legal-tender notes, p. 115.

Cited in Legal-Tender Case, 110 U. S. 438, 28 L. 211, 4 S. Ct. 124, holding notes of United States, reissued under act of 1878, legal tender in payment of private debts; without particular application, in Mercantile, etc., Co. v. Baltimore, etc., R. R. Co., 82 Fed. 872.

Miscellaneous. Cited illustratively in Woodruff v. United States, 162 U. S. 299, 310, 40 L. 975, 979, 16 S. Ct. 823, 827.

22 Wall. 116-123, 22 L. 780, PLEASANTS v. FANT.

Evidence. If admission of defendant to plaintiff, and evidence of K., a partner, are insufficient to raise prima facie presumption of partnership, then declarations of K. on that subject are inadmissible, p. 119.

Partnership.- Right to compel account of profits, in equity, is one of most approved criteria of existence of partnership, p. 120.

Followed in Priest v. Chouteau, 85 Mo. 405, 55 Am. Rep. 377, affirming 8. C., 12 Mo. App. 258, holding acts of parties and circumstances established fact of partnership in theater business.

Partnership.- One lending money to member of firm, who voluntarily promises lender an indefinite proportion of profits, does not become a partner, p. 120.

Followed in Meehan v. Valentine, 145 U. S. 625, 36 L. 842, 12 8. Ct. 975, holding one loaning money to firm, for interest and contingent share of profits, not a partner; In re Ward, 2 Flipp. 464, F. C. 17,144, holding loan, at interest proportionate to profits, did not constitute lender a partner.

Trial.- Court should make plain to jury the issues they are to try, should admit only such evidence as is proper in these issues, and instruct them in rules of law by which evidence is to be examined and applied, pp. 121, 122.

Approved in Texas, etc., R. R. Co. v. Rhodes, 71 Fed. 148, 30 U. S. App. 561, reversing case for errors in refusing to give correct instructions to jury; Swanson v. Allen, Iowa, 79 N. W. 132, reversing case on account of confused instructions, and for reading pleadings to jury in lieu of concise statement; St. Louis, etc., R. R. Co. v. Toomey, 6 Kan. App. 415, 49 Pac. 820, holding court properly submitted issues of negligence to jury.

Trial. Where there is no evidence upon which jury can properly proceed to find for party producing it, conceding to evidence greatest possible force to which it is fairly entitled, court may withhold case from jury, p. 122.

Following are the citing cases approving and relying upon this holding: Commissioners, etc. v. Clark, 94 U. S. 284, 24 L. 62, holding no evidence to go to jury to show that indorsee had notice of prior equity; Baltimore, etc., R. R. Co. v. Jones, 95 U. S. 443, 24 L. 508, holding plaintiff not entitled to recover in action against railroad for personal injuries; Herbert v. Butler, 97 U. S. 320, 24 L. 958, plaintiff, in action for attorney's fee, non-suited; Bowditch v. Boston, 101 U. S. 18, 25 L. 981, affirming S. C., 4 Cliff. 339, F. C. 1,719, non-suiting plaintiff in action to recover for destruction of building to prevent spreading of fire; Oscanyan v. Arms Co., 103 U. S. 265, 26 L. 542, where, upon admitted facts, court directed verdict for defendant; Arthur v. Jacoby, 103 U. S. 678, 26 L. 454, holding instruction to find for plaintiff, in suit to recover back duties, correct; National Bank v. Insurance Co., 103 U. S. 786, 26 L. 460, holding similarly in action to recover money loaned to insurance agent; Stewart v. Lansing, 104 U. S. 512, 26 L. 869, affirming directed verdict for defendant in action on municipal bond coupons; Randall v. Baltimore, etc., R. R. Co., 109 U. S. 482, 27 L. 1005, 3 S. Ct. 324, Hathaway v. East Tenn., etc., R. R. Co., 29 Fed. 491, and Horn v. Baltimore, etc., R. R. Co., 54 Fed. 304, 6 U. S. App. 381, all holding evidence of negligence insufficient to warrant verdict against railroad; Carter v. Carusi, 112 U. S. 484, 28 L. 822, 5 S. Ct. 285, holding omission of court to instruct as to one of several pleas, not error, there being no evidence to support it; Anderson Co. v. Beals, 113 U. S. 241, 28 L. 971, 5 S. Ct. 440, holding jury properly instructed to find for plaintiff in action on bonds; Schofield v. Chicago, etc., R. R. Co., 114 U. S. 619, 29 L. 225, 5 S. Ct. 1127 (affirming S. C., 2 McCrary, 269), and Candelaria v. Atchison, etc., R. R. Co., 6 N. Mex. 284, 27 Pac. 503, where directed verdict for defendant in action for injuries caused by railroad train was affirmed; Higgins v. McCrea, 116 U. S. 683, 29 L. 768, 6 S. Ct. 563, holding charge not erroneous where court would have been justified in directing verdict upon plaintiff's own testimony; Marshall v. Hubbard, 117 U. S. 419, 29 L. 920, 6 S. Ct. 806, holding, in action on notes, evidence Insufficient to authorize verdict for defendant: Ferguson v. Arthur, 117 U. S. 490, 29 L. 982, 6 S. Ct. 865, affirming peremptory verdict

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