grant of land on creek carries island between shore and middle of creek; Fulton v. Frandolig, 63 Tex. 332, holding accretion formed on reef beyond survey, not part of estate to which reef formerly attached.

Distinguished in Nebraska v. Iowa, 143 U. S. 361, 36 L. 188, 12 S. Ct. 397, holding boundary line between Omaha and Council Bluffs unaffected by avulsion of Missouri river; Bouvier v. Stricklett, 40 Neb. 798, 59 N. W. 552, holding boundary line at center of stream unaffected by stream abandoning channel.

4 Wall. 509-513, 18 L. 457, BENTLEY v. COYNE.

Collision. Where both vessels show lights which each sees two or three miles away, wind being fair and sea smooth, collision is not inevitable accident, but result of negligence, p. 511.

Collision.- Vessel having wind free or sailing before or with wind, must keep out of way of vessel closehauled; vessel on starboard tack has right of way, and duty of vessel having wind free to give way imposes duty on other vessel to keep her course, pp. 511, 512.

Cited and followed in The F. W. Gifford, 7 Biss. 253, 254, F. C. 5,166, holding vessel with wind on port side must keep out of way; The Abby Ingalls, 12 Fed. 218, holding both vessels being close hauled, vessel on star-board tack has right of way.

Collision. Where vessel, whose duty it is to keep her course, does so until collision is inevitable, a change in her course then, to make the blow of the collision less direct, does not forfeit her right to damages against vessel at fault, p. 512.

Cited and followed in The Fairbanks, 9 Wall. 425, 19 L. 710, holding right to damages unimpaired by change of course after collision is inevitable; The Jupiter, 1 Ben. 541, F. C. 7,585, holding injudicious move by vessel injured at moment of collision not fault; The Sunnyside, 1 Brown, 247, F. C. 13,620, holding vessel holding course, not liable for damage to steamer, showing sailing lights; The H. P. Baldwin, 1 Brown, 307, F. C. 6,812, holding schooner not freed from liability for damage by bark's error, collision being inevitable; The Golden Grove, 13 Fed. 688, holding steamer not freed from liability by failure of schooner to act, collision being imminent; The Havilah, 33 Fed. 877, holding change of course, collision being inevitable, is not fault; The Mary Augusta, 55 Fed. 344, holding error of judg ment committed at moment of collision, not fault in vessel injured; The Robert Holland and Parana, Poppe v. Bigelow, 59 Fed. 202, holding error of judgment committed in extremis, not fault to defeat recovery; Greenwood v. Westport, 60 Fed. 567, holding that master was not licensed pilot, not contributory negligence to defeat re

covery.

Miscellaneous. Apparently miscited in Kimberley ▼. Arms, 40 Fed. 554, to proposition that bill of review not allowable on de cree of inferior court entered upon mandate.

4 Wall. 513-521, 18 L. 435, PURCELL V. MINER.

Frauds, statute of.- Contracts for exchange of lands are within statute of frauds and party seeking specific execution thereof must show same written evidence as the statute requires of contract for sale of lands, p. 517.

Followed in Buttz v. Colton, 6 Dak. Ter. 317, 43 N. W. 721, holding contract for release of right to or exchange of real estate within statute.

Frauds, statute of.- Party seeking to enforce parol contract for exchange of lands, in equity, must clearly prove: (1) Contract and its terms; (2) Payment or tender of consideration; (3) Part performance of contract such that rescission would be fraud on other party or incapable of compensation by damages in law; (4) Delivery and acquiescence therein. Hence party showing contract not intended to be left in parol, but to be written after examination of property, and subsequent refusal of defendant to carry on trade, there being no part performance, is not entitled to bill in equity decreeing specific performance, pp. 517, 518, 519.

Cited and followed in Williams v. Morris, 95 U. S. 456, 24 L. 362, holding receipts not clearly showing terms insufficient to take parol contract out of statute; Dunphy v. Ryan, 116 U. S. 498, 29 L. 705, 6 St. Ct. 489, holding mere refusal to perform parol contract to purchase lands gives equity no jurisdiction; Wenham v. Switzer, 59 Fed. 947, 15 U. S. App. 302, holding to obtain specific performance of contract it must show consideration; In re Farmer, 8 Fed. Cas. 1019, holding doctrine of part performance is founded on hardship of leaving parties to law remedies; Tate v. Jones, 16 Fla. 243, holding parol contract satisfactorily proved by testimony; Neal v. Gregory, 19 Fla. 366, holding no title to real estate passes under parol contract by payment of price; Towle v. Wadsworth, 147 Ill. 99, 30 N. E. 603, holding parol proof to establish resulting trust must be full, clear and satisfactory; Cutsinger v. Ballard, 115 Ind. 95, 17 N. E. 207, holding party seeking specific performance of land contract, must prove contract clearly and substantially; Wallace v. Rappleye, 103 Ill. 248, holding contract to make illegitimate child heir, must be clearly and explicitly proved; Bennett v. Dyer, 89 Me. 22, 35 Atl. 1005, holding specific performance of oral contract granted if no adequate law remedy for part performance; Semmes v. Worthington, 38 Md. 318, holding terms of contract to devise land must be clearly shown for specific performance; Glass v. Hulbert, 102 Mass. 28, 44, 3 Am. Rep. 421, 434, holding payment of whole consideration insufficient to justify specific performance; Lamar v.

Wright, 31 S. C. 75, 9 S. E. 739, holding parol evidence inadmissible to prove contract for sale of land; Chambers v. Emery, 13 Utah, 397, 45 Pac. 196, holding to establish resulting trust in mine by parol, proof must be conclusive; Vickers v. Sissons, 10 W. Va. 18, holding plaintiff fully performing contract, court will compel defendant to perform verbal contract.

Cited in note in 60 Am. Rep. 380. Approved in Harman v. Harman, 70 Fed. 924; in dissenting opinion, majority holding whole contract partly written, partly oral, may be shown by parol; Tourtelotte v. Brown, 4 Colo. App. 394, 36 Pac. 79, holding evidence of fraud to vacate note, must be strong, clear, satisfactory, and convincing; Kraft v. Egan, 78 Md. 40, 26 Atl. 1083, holding contract must be mutual, equal and in good faith to be specifically enforceable; Rawdon v. Dodge, 40 Mich. 699, holding written evidence necessary to show terms of verbal contract to convey land; Raub v. Smith, 61 Mich. 549, 1 Am. St. Rep. 623, 28 N. W. 678, holding oral agreement of co-partnership to buy lands within statute of frauds; Swash v. Sharpstein, 14 Wash. 436, 44 Pac. 865, 32 L. R. A. 799, holding transfer of possession necessary to enforce specific performance of contract to convey land.

Distinguished in Hitchins v. Pettingill, 58 N. H. 389, holding proof of part performance necessary for specific performance, unnecessary to reform erroneous deed.

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Frauds, statute of. To enforce contract in equity, notwithstanding the statute, proof of contract must be clear, definite and conclusive, and must show contract, hearsay or evidence of strangers to transaction being inadmissible to make out contract, p. 518.

Cited and followed in McKinnon v. McKinnon, 46 Fed. 718, holding proof of oral partnership agreement insufficient proof of contract to convey land; Marr v. Shaw, 51 Fed. 864, holding proof of oral contract to convey land must be full, clear and satisfactory; Walcott v. Watson, 53 Fed. 433, 435, holding hearsay evidence inadmissible to prove oral contract of interest in mine; Towle v. Wadsworth, 147 Ill. 102, 30 N. E. 603, holding nature of transaction not determinable by declarations to strangers to transactions; Barrett v. Geisinger, 148 Ill. 110, 35 N. E. 357, holding terms of contract regarding land should be fully, clearly and satisfactorily proved.

Frauds, statute of. To enforce contract in equity, notwithstanding the statute, mere payment of price in whole or in part will not, of itself, give equity jurisdiction if party has adequate remedy at law, p. 518.

Cited and followed in Douglass v. Snow, 77 Me. 93, holding payment of purchase money insufficient part performance to exempt parol contract from statute; Blodgett v. Hildreth, 103 Mass. 486, holding parol agreement regarding land not taken out of statute by payment of consideration; Ducie v. Ford, 8 Mont. 239, 240, 19 Pac.

417, holding acts of part performance must unequivocally prove contract alleged; McPherson v. Wiswell, 16 Neb. 629, 21 N. W. 393, holding partial payment on oral contract insufficient to constitute part performance; Johnson v. Bell, 58 N. H. 396, holding conveyance of farm sufficient part performance to justify specific performance of parol contract; Brown v. Drew, 67 N. H. 569, 42 Atl. 177, holding payment of price insufficient to take parol land contract out of statute; Kelly v. Ruble, 11 Or. 91, 4 Pac. 601, holding act of part performance must be unexplainable, except on supposition of agreement. See valuable note in 12 Am. Dec. 120, 27 Am. Dec. 745, 53 Am. Dec. 541.

Frauds, statute of.- Delivery of possession, set up to take parol contract for exchange of lands out of the statute, is not shown by proof of scrambling and litigious possession, p. 518.

Cited and followed in Ducie v. Ford, 138 U. S. 594, 34 L. 1096, 11 S. Ct. 419, holding delivery of land claimed by both parties under separate titles, insufficient part performance; Riggles v. Erney, 154 U. S. 254, 38 L. 980, 14 S. Ct. 1086, holding sale of one, sufficient part performance of oral contract to sell two lots; Dudley v. Hayward, 11 Fed. 545, holding payment of price and delivery of land, sufficient performance to admit parol evidence; Tate v. Jones, 16 Fla. 252, holding possession delivered and acquiesced in takes contract out of statute; Swales v. Jackson, 126 Ind. 284, 26 N. E. 62, holding open and visible change of possession necessary to exempt parol contract from statute.

Equity.- Motion for writ of review by party showing no error of law in decree and offering no new evidence, which might not have been offered at former trial, will not be granted, p. 521.

Cited and followed in Gaines v. Rugg, 148 U. S. 241, 37 L. 437, 13 S. Ct. 616, holding disallowable bill of exceptions to Circuit Court decree as to land title; Pittsburg, etc., Co. v. Cowles, etc., Co., 64 Fed. 127, holding no rehearing granted, because appellant was misled without fraud as to issue.

4 Wall. 522-535, 18 L. 335, COMMISSIONER OF PATENTS v. WHITELEY.

Patents.- Patentees are a meritorious class, and patent laws should be liberally construed to meet the beneficient object of the legislature, p. 532.

Patents. Decision of commissioner rejecting application because applicant not the original inventor, is appealable without any further steps in the case, p. 532.

Patents. On application by assignee of patentee for reissue of patent, commissioner must determine whether applicant is the assignee of such interest as will entitle him to reissue, p. 532.

Pleading. Admissions in pleading may consist in the failure to deny in the answer what is averred in the petition, p. 532.

Cited and followed in Ex parte Newman, 14 Wall. 166, 20 L. 879, collecting cases and holding demurrer admits every fact well pleaded.

Mandamus lies to compel commissioner of patents to receive an application for reissue where applicant has done all the law requires, and all in his power to make application effectual, p. 533.

Patents. Under acts of 1837 and 1836, applicant for reissue of patent may appeal from decision of commissioners that he is not such an assignee as the law entitles to reissue, p. 533.

Mandamus lies to compel commissioner of patents to allow appeal in proper cases, p. 533.

Mandamus. will not lie to compel commissioner of patents to reexamine a question he has decided; only a reversal by the tribunal of appeal could cast upon him the duty of further examination, p. 533.

Mandamus lies only in two classes of cases: 1. Where there is a refusal to perform a ministerial act, involving no exercise of judgment or discretion; and, 2. Where the exercise of judgment and discretion are involved and the officer refuses to decide, provided that, if he decided, the aggrieved party could have his decision reviewed by another tribunal, p. 534.

Cited and principle followed in Gaines v. Thompson, 7 Wall. 351, 19 L. 64, holding mandamus will not lie to control cancellation of entry for land by land department; Secretary v. McGarrahan, 9 Wall. 312, 19 L. 583, collecting cases and holding mandamus will not lie to compel issuance of land patent; United States v. Schurz, 102 U. S. 395, 26 L. 171, holding mandamus will lie to compel secretary of interior to deliver patent to owner; Butterworth v. Hoe, 112 U. S. 68, 28 L. 662, 5 S. Ct. 34, holding mandamus lies to compel commissioner to countersign patent after determining it shall issue; Craig v. Leitensdorfer, 123 U. S. 210, 31 L. 122, 8 S. Ct. 96, collecting cases and holding on failure to perform a ministerial duty, remedy is by mandamus, not in equity; Dunlap v. Black, 128 U. S. 48, 32 L. 357, 9 S. Ct. 15, holding mandamus will not lie to review approved decision of commissioner of pensions; International, etc., Co. v. Lamont, 155 U. S. 308, 39 L. 163, 15 S. Ct. 98, collecting cases and holding mandamus will not lie to compel performance of non-existent duty; Hough v. Western, etc., Co., 1 Biss. 429, F. C. 6,724, holding mandamus will not lie to compel removal of cause to Federal court; American, etc. Co. v. Fyler, 60 Conn. 463, 25 Am. St. Rep. 342, 22 Atl. 495, holding mandamus will only lie to compel a definite act, postively enjoined; Jarvis v. Warren Co., 49 Miss. 607, holding mandamus will lie to compel levy of taxes when not discretionary: