in esse, subject to open and let in others as they are born afterwards, p. 475.

Cited and applied in Cropley v. Cooper, 19 Wall. 176, 22 L. 113, holding under devise in trust for daughter, remainder to her children, surviving child took vested remainder on testator's death; Amos v. Amos, 117 Ind. 24, 19 N. E. 542, holding birth of persons, not their survival of life tenant, contingency upon which remainder vests; Scott v. West, 63 Wis. 569, 24 N. W. 172, holding remainder vests as soon as remainderman comes in esse; McLain v. Howard, ― Mich.-, 79 N. W. 182, 183, holding devise to each of testator's grandchildren in event of wife's death, includes children born after testator's death, and before his wife's, and children in ventre sa mere at latter's death.

Miscellaneous.- McClaskey v. Barr, 42 Fed. 615, 616, holding grantee of life tenant and of partial interest in remainder, not in adverse possession; State v. Noble, 118 Ind. 371, 10 Am. St. Rep. 161, 21 N. E. 252, 4 L. R. A. 111, erroneously cited; Edgerly v. Barker, 66 N. H. 451, 31 Atl. 904, 28 L. R. A. 331, as to testator's intent governing; Opinion of Justices, 66 N. H. 673, 33 Atl. 1099, holding statute should be read according to legislative intent, irrespective of arrangement of clauses; Tisdell v. New Hampshire Ins. Co., 155 N. Y. 168, 49 N. E. 666, 40 L. R. A. 767, dissenting opinion, holding where contract read in order presents no ambiguity, clauses will not be transposed, majority transposing; State v. Pullman's Car Co., 64 Wis. 110, holding explicit statute needs no construction.

6 Wall. 481-484, 18 L. 930, WALKLEY v. CITY OF MUSCATINE. Mandamus, and not a bill in equity, is proper remedy to compel levy of tax to pay an unsatisfied judgment against a municipal corporation, p. 482.

Cited and followed in Heine v. Levee Commissioners, 19 Wall. 657, 661, 22 L. 225, 226, refusing to enforce tax levy in equity; Thompson v. Allen Co., 115 U. S. 553, 556, 29 L. 473, 474, 6 S. Ct. 141, 143, holding fact that legal remedy of mandamus has proven ineffectual, not sufficient ground for equitable jurisdiction; McCauley v. Kellogg, 2 Woods, 20, F. C. 8,688, refusing mandatory injunction to compel tax levy; Merchants' Nat. Bank v. Jefferson Co., 1 McCrary, 370, 5 Dill. 323, F. C. 15,472, upholding power of courts to compel county tax levy by mandamus; Coquard v. Indian Grave Drainage Dist., 69 Fed. 870, 34 U. S. App. 169, refusing equitable interference where remedy was by mandamus; O'Brien v. Wheelock, 78 Fed. 679, holding Federal courts will not act as tax collectors; Waite v. Santa Cruz, 89 Fed. 624, holding appropriate procedure in Federal courts on refusal of municipality to pay bonds, is to first obtain judgment establishing their validity, and then, if

necessary, obtain mandamus to enforce judgment; Commissioners' Court v. Rather, 48 Ala. 450, holding mandamus proper remedy for refusal to levy proper tax; Miller v. McWilliams, 50 Ala. 429, 20 Am. Rep. 298, granting mandamus to compel tax levy to satisfy Judgment against city; Safe Deposit Co. v. Anniston, 96 Fed. 662, holding funds of insolvent municipality cannot be subjected by equity to payment of judgment, there being adequate remedy by mandamus; dissenting opinions in Thompson v. Allen Co., 115 Wall. 563, 29 L. 476, 6 S. Ct. 146, holding appointment of receiver to collect, not within rule, majority contra; Receiver v. City, 49 La. Ann. 839, 21 So. 885, 37 L. R. A. 554, holding mandamus properly issuable, majority contra, where claim was still in dispute. Cited in note in 85 Am. Dec. 544, on compelling municipality to levy tax, in absence of special statute, collecting cases; 98 Am. Dec. 690, extended and valuable note on municipal bonds and defenses thereto. Modified in State Board of Education v. West Point, 50 Miss. 647, and State v. Mayor, etc., 52 Wis. 428, 9 N. W. 608, both holding claim must first be established in ordinary action at law. Distinguished in Shackelton v. Guttenberg, 39 N. J. L. 661, refusing mandamus, where authority of town to levy taxes was doubtful; Moundsville v. Ohio, R. R. Co., 37 W. Va. 102, 16 S. E. 517, 20 L. R. A. 169, and n., holding injunction proper affirmative remedy to compel removal of nuisance.

6 Wall. 484-491, 18 L. 920, UNITED STATES v. ECKFORD.

United States.- The only remedy of a contractor with the United States, dissatisfied with its course in fulfilling the contract, except In cases cognizable by the Court of Claims, is by petition to Congress, p. 488.

Cited and relied upon in United States v. Wickersham, 10 Fed. 509, holding court's jurisdiction in action to forfeit lease, ousted by surrender of possession to United States; People v. Miles, 56 Cal. 402, holding State cannot be sued directly or by counterclaim in her own courts; dissenting opinion in United States v. Lee, 106 U. S. 227, 27 L. 184, 1 S. Ct. 266, holding United States cannot be sued, majority denying application in ejectment against Federal officer holding for public use.

Distinguished in Bush v. United States, 8 Sawy. 324, 13 Fed. 626, holding bill of review to modify decree in favor of United States, not within rule.

Courts.- Circuit Courts are authorized to exercise no jurisdiction not conferred by Congress, p. 488.

Set-off. Right of set-off did not exist at common-law, but is founded on statute of 2 George II, chapter 24, section 4, p. 488. Cited in Wheeling Bridge, etc., Ry. v. Cochran, 68 Fed. 143, 25 U. S. App. 306, holding under West Virginia code, all matters of

set-off accruing before trial admissible; Hall v. Paris, 59 N. H. 73, holding depositor cannot set off his deposit against his debt due bank, after appointment of assignee; Thompson v. Reno Sav. Bank, 19 Nev. 114, 3 Am. St. Rep. 802, 7 Pac. 71, arguendo, debts must be in same right as well as mutual; Scammon v. Kimball, 92 U. S. 367, 23 L. 485, arguendo, banker can set off against insurance company's demand for deposit, amount due him on policies.

United States. In suit by United States defendant may assert by way of set-off any claim, legal or equitable, which has been presented to, and disallowed by treasury, but no judgment for excess of such set-off can be rendered against United States, p. 489.

Cited and principle followed in Watkins v. United States, 9 Wall. 765, 19 L. 822, holding evidence of claim which had not been legally presented with vouchers, inadmissible; Case v. Terrell, 11 Wall. 201, 20 L. 134, reversing money judgment against United States; Schaumburg v. United States, 103 U. S. 667, 26 L. 599, a like case, affirming Schaumburg v. United States, 21 Fed. Cas. 655, refusing judgment for excess of set-off over government's claim; United States v. North American Commercial Co., 74 Fed. 153, denying set-off because claim had not been presented to treasury; Yates v. United States, 90 Fed. 62, 61 U. S. App. 133, holding evidence of set-off claim inadmissible unless same has been presented to treasury and disallowed; People v. Dennison, 84 N. Y. 281, holding affirmative judgment on set-off cannot be rendered against State; Moore v. Tate, 87 Tenn. 739, 740, 10 Am. St. Rep. 720, 721, 11 S. W. 938, holding rule applies to other States, suing in Tennessee, and disallowing set-off.

Qualified in Lee v. Kaufman, 3 Hughes, 126, F. C. 8,191, holding fact that it cannot render judgment therefor does not defeat court's jurisdiction to ascertain amount due from government. Distinguished in Hall v. United States, 91 U. S. 562, 23 L. 447, holding set-offs for extra services inadmissible in action on bond of revenue collector.

6 Wall. 492-494, 18 L. 931, FOLEY V. SMITH.

Bills and notes.- Rule that taker of an overdue and dishonored note takes it subject to all equities, is the law of Louisiana, as well as of common-law States, p. 493.

Cited and relied upon in Towner v. McClelland, 110 Ill. 549, holding taker of overdue note put on inquiry as to holder's authority to negotiate; Hannon v. Houston, 18 Kan. 574, holding sale of overdue bonds by mere holder for collection void; Henderson v. Case, 31 La. Ann. 216, holding purchaser of dishonored bill from one unauthorized to sell, acquired no title; Stern v. Germania Nat. Bank, 34 La. Ann. 1120, 1121, holding pledgee of bonds after maturity from one unauthorized to pledge, acquires no title; Ford v. Phillips,

83 Mo. 530, holding transferee of note overdue from holder for collection, takes in same capacity; Quimby v. Stoddard, 67 N. H. 287, 35 Atl. 1108, holding bona fide transferee of overdue notes, takes subject to defects of transferrer's title; Chester v. Dorr, 41 N. Y. 288, holding accommodation indorser not liable to transferee for value after maturity; Texas Banking, etc., Co. v. Turnley, 61 Tex. 370, holding transferee for value after maturity takes subject to rights of true owner; Walker v. Wilson, 79 Tex. 188, 15 S. W. 402, holding dishonored note degraded to rank of a mere chattel; Huddleston v. Kempner, 3 Tex. Civ. App. 255, 22 S. W. 872, holding owner of notes transferred after maturity may show transfer for collection only.

Distinguished in Eversole v. Maull, 50 Md. 105, where agent had apparent authority to sell note delivered him after maturity; Etheridge v. Gallagher, 55 Miss. 466, 469, where prior indorsers had failed to assert equitable defenses in time.

Bills and notes.- One taking an overdue and dishonored note from a holder for collection only, cannot share the proceeds of a mortgage given to secure said note and others, such proceeds being insufficient to pay all, p. 494.

Followed in Osborn v. McClelland, 43 Ohio St. 299, 302, 305, 1 N. E. 651, 653, 655, an almost identical case.

Departed from in dissenting opinion in Osborn v. McClelland, 43 Ohio St. 310, 311, 1 N. E. 658, holding bona fide purchaser for value takes good title where transferrer had apparent authority, majority contra.

6 Wall. 495 496, 18 L. 863, CITY OF WASHINGTON v. DENNISON.

Appeal and error.- A writ of error sued out before first day of term must be made returnable on first day of next term, p. 496.

Appeal and error.- A writ of error sued out after first day of term must be made returnable on first day of term succeeding the next, p. 496.

Appeal and error.- Writ of error and citation must both be served before return day, p. 496.

Cited in Knight v. Weiskopf, 21 Fla. 164, dismissing appeal for lack of service of writ.

Distinguished in Dayton v. Lash, 94 U. S. 112, 24 L. 33, refusing to dismiss appeal where all steps except service had been taken. Appeal and error.- A writ of error, although returned in time, is a nullity if not sealed in time, p. 496.

Appeal and error.— Where writ of error is not sealed in time, and citation is not served before return day, the writ cannot serve as a supersedeas, p. 496.

Cited in C., R. I. & P. R. Co. v. Grinnell, 53 Iowa, 56, 3 N. W. 820, holding State court's judgment not superseded where writ was not filed in time.

6 Wall. 497, 18 L. 887, EX PARTE DE GROOT.

Mandamus.- Writ of error, and not mandamus, is proper remedy on refusal of inferior court to grant mandamus, p. 497.

Cited in Redfield v. Windom, 137 U. S. 643, 34 L. 814, 11 S. Ct. 199, in list of cases defining principles upon which mandamus will issue.

6 Wall. 498, 18 L. 933, THE BATTLE.

War.- Capture as a prize of war, jure belli, overrides all previous liens, p. 498.

Distinguished in The Siren, 7 Wall. 162, 19 L. 133, holding lien for damages arising after capture should be satisfied before distribution to captors.

6 Wall. 499-511, 18 L. 890, GARDNER v. THE COLLECTOR.

Statutes. Neither the Constitution nor statutes require the president to date a bill on signing it, p. 506.

Evidence. The date of a written instrument may be proved or contradicted by parol, p. 508.

Statutes. When the existence, date of effect or precise terms of a statute are in question, the court may resort to any source of information which is capable of conveying a clear and satisfactory answer to such question, seeking first for that which is most appropriate, unless the positive law has enacted a different rule, p. 511.

The following cases affirm and rely upon this holding: South Ottawa v. Perkins, 94 U. S. 268, 24 L. 158, taking note of journal entries in State legislature as showing valid passage; Walnut v. Wade, 103 U. S. 689, 26 L. 528, examining legislative journals; Jones v. United States, 137 U. S. 216, 34 L. 697, 11 S. Ct. 85, examining records of State department to discover status of guano island, reviewing cases; Mills v. Green, 159 U. S. 658, 40 L. 295, 16 S. Ct. 135, holding Supreme Court will take judicial notice of dates of election to constitutional convention, commencement of its sessions and dates of its acts; Salmon v. Burgess, 1 Hughes, 363, F. C. 12,262, holding court can take cognizance of what hour of day statute was passed; The Railroad Tax Case, 8 Sawy. 293, 13 Fed. 767, deciding from journal of assembly that bill was never constitutionally passed; In re Wynne, Chase's Dec. 251, F. C. 18,117, holding precise hour of passage of statute may be inquired into where necessary to de