length, and that the damage in this case was in fact and effect done by the Patrick Henry herself. It is difficult to see how this view or the statement of Wood that the boats were tenders of the cruiser can be sustained in the face of his testimony that "I went at once to Matthews county, Virginia, near New Point Comfort, and there found a suitable boat, fitted her as a man-of-war launch" (p. 57, Record), and in the face of the testimony of Lee that We had two small boats that we obtained on the bay shore, with sails and a sailing skiff, we captured from two Union men. Νο boats were brought from Richmond or from any Confederate cruiser." P. 20, Record. In the opinion of the court, the claim that these boats were tenders attached to the cruiser must fail, and with it the suggestion that the damage was done by the armed vessel through the instrumentality of boats attached to her. So far as being effective in this matter, the Henry might as well have been in the Arctic ocean as over in the James river. Any other body of men to the same number might have done the same work. The force making the capture in this case received no support or assistance from any armed or credentialed war vessel. The difficulty which, it seems to the court, places the case outside of the provisions of the statute, is that the damage was done by the men alone, and not by a vessel, when the act contemplates only damages wrought by an authorized vessel fitted for belligerent operations upon the high seas. The large amount of damages believed to have been suffered by the claimants, the conviction that the claim has much merit in it, the admirable manner in which it was presented, and the fact that the finding of the court is final, have combined to secure for this case much and most pains-taking consideration. After such consideration the conclusion is irresistible that however meritorious it may be in inself, it is not such a claim as Congress intended to make provision for in enacting the statutes under which we are proceeding. Judgment will be entered for the United States. AGENCY-INSURANCE- NOTICE OF CANCELLA TION. NEW YORK SUPREME COURT, GENERAL TERM. DECEMBER 7, 1885. VON WIEN V. SCOTTISH UNION AND NAT. INS. Co. Notice of the cancellation of a policy of insurance was given to the agent of the insured, whose agency terminated on procuring the insurance. Held, not to be notice to the insured; and further that said notice not relating to the insurance, the clause of the policy that the insurance broker "shall be deemed to be the agent of the insured in any transaction relating to the insurance "did not affect the question. APPEAL from judgment entered on the verdict of a jury and from an order denying a motion for a new trial on the judge's minutes on the grounds set forth in section 999 of the Code of Civil Procedure. Action to recover upon a policy of insurance for a loss sustained by fire. Benno Loewy, for appellant. Wetmore & Jenner, for respondent. TRUAX, J. The trial judge erred in allowing the defendant to prove that it had given notice of the cancellation of the policy to Rieger, or in other words it was error to hold that Rieger was the plaintiff's agent to whom notice of the cancellation of the policy could be given. The evidence shows that Rieger was employed by the plaintiff to procure certain insurance and that he procured that insurance. His employment — his agency-then ended, and notice to him was not notice to plaintiff. The defendant claims that Spitzer was plaintiff's agent and that Rieger was Spitzer's, and therefore plaintiff's agent. But there is no evidence that tends to show that Spitzer was plaintiff's agent for any other purpose than the purpose of procuring insurance. When the insurance was procured his agency ended. This view of the case is not affected by the clause of the policy, that the insurance broker "shall be deemed to be the agent of the insured in any transaction relating to the insurance." The giving notice of cancellation of the policy does not relate to the insurance; it relates to the cancellation of the contract of insurance and not to the making of such contract. An authority to make a contract for another does not carry with it by implication, authority to cancel that contract. Hodge v. Security Ins. Co., 33 Hun, 583; Stillwell v. Mut. Life Ins. Co., 72 N. Y. 385; Van Valkenburg v. Lenox Fire Ins. Co., 51 id. 469; Grace v. American Cent. Ins. Co., 109 U. S. 278. This rule works no hardship to the insurer. The right to cancel the contract of insurance still remains. It only requires that notice of cancellation shall be given to the insured, or to his agent to whom he has given an authority to receive such notice. The cases of Rohrback v. Germania Fire Ins. Co., 62 N. Y. 47, and Alexander v. Germania Fire Ins. Co., 66 id. 464, deal with matters before the issuing of the policy (Whited v. Germania Fire Ins. Co., 76 N. Y. 419), and the Court of Appeals say in the case last cited that it has not yet extended the clauses of the policy quoted above beyond matters that occurred before the issuing of the policy (p. 419). I cannot find that it has extended that clause any further since the decision of the Whited case. This remark is to be borne in mind while considering the case of Standard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85 in which case the persons who procured the insurance were the plaintiff's agents, generally for placing and keeping upon plaintiff's property a large line of insurance (see p. 86), and they returned the policy for cancellation (87). The question of notice of cancellation to an agent was not in that case. The policy of insurance was delivered to the plaintiff without requiring the payment of the prem ium. This raises the presumption that a credit was intended and the policy is valid. Washoe Tool Co. v. Hibernia Ins. Co., 66 N. Y. 613; Angell v. Hartford Fire Ins. Co., 59 id. 171; Bowman v. Agricultural Ins. Co., id. 527. But the fact that credit was given does not make it necessary for the defendant to offer to return a premium that it never had received. The judgment and order appealed from are reversed and a new trial is ordered, with costs to the appellant to abide the event. DAMAGES-ELEVATED RAILROAD IN NEW YORK -RIGHTS OF ABUTTING OWNERS. NEW YORK SUPERIOR COURT, DECEMBER 7, 1885. IRELAND V. METROPOLITAN ELEVATED RY. Co. In an action by abutting owner against an elevated street railway company in the city of New York, to recover the total damage to the market value of the fee, the company THE ALBANY LAW JOURNAL. admitting the taking and its permanent character, an offer by the claimant on the trial of a proper conveyance is sufficient. In such an action the owner may recover interest on his total damage, but he may not recover for loss of rents in the place of interest. Jn estimating the damages the jury may take into account the noise and gas and cinders, and the diminution of light and air, and any other injurious effects of the running of trains. A PPEAL by defendant from a judgment of $14,402.95 entered against it upon the verdict of a jury, and from the order denying defendant's motion upon the minutes for a new trial. the circumstances is found to be a reasonable one for the company to make compensation, and the compensation may be determined by the judgment, as in Henderson v. N. Y. C. & H. R. R. Co., 78 N. Y. 423, or left by the judgment to be determined subsequently either by agreement or by proceedings of condemnation, as in Story v. N. Y. Elevated R. Co., 90 N. Y. 122; and Glover v. Manhattan Ry. Co., 51 N. Y. Sup. Ct. 1. It may also be deemed to have been well settled that so long as no compensation has been had for the permanent injury, an abutting owner may bring successive actions at law for the loss from time to time of rent caused by the abridgment of the easement, as in the case of a continuing nuisance. In these cases there Julien T. Davies and Edward S. Rapallo, for appel- is no transfer of title, and the payment of one judg lant. E. Ellery Anderson, for respondent. FREEDMAN, J. This action was brought to recover the total damage occasioned to the premises Nos. 67 and 88 West Third street (also known as Amity street) and No. 2 South Fifth avenue (being the north-westerly corner of South Fifth avenue and Amity street) by the abridgment of the easement of light, air, and access appurtenant to said premises in consequence of the construction, maintenance and operation of defendant's railway through West Third or Amity street and in front of said premises. The plaintiff proved title and possession of these three parcels of property in his father, John L. Ireland; the death of his father in 1879; the devise of the three parcels to himself by his father's will; and occupation by himself through his tenants since his father's death. He also proved an assignment from himself, as executor of his father's will to E. Ellery Anderson, and an assignment from E. Ellery Anderson to himself, the plaintiff, of any claim which his father's estate might have for the said damages or any part thereof. The buildings on the premises are threestory brick dwellings, and they were built before the railroad was commenced or authorized. The construction of defendant's railway was commenced in April, 1876. It was completed in April, 1878, and has been operated since June, 1878. Amity street was opened under the act of 1813. In such a case an abutting owner as such, though he owns no part of the street, has an easement in the street to the extent of light and air, and free access to and egress from his premises, and any abridgment of such easement by the construction, maintenance or use of an elevated railway in a manner inconsistent with the ordinary uses of a street, although pursuant to public consent, constitutes, if damage is occasioned thereby, a taking of private property within the meaning of the Constitution and entitles the owner to compensation. Story v. N. Y. Elevated R. Co., 90 N. Y. 122; Taylor v. Metropolitan Elevated R. Co., 50 N. Y. Sup. Ct. 311. ment is no bar to a subsequent action for a different period. From this it follows that successive owners of the same premises, or even tenants under certain circumstances, may maintain actions for the injury to their respective interests. The right of an abutting owner to maintain an action at law to recover the total damage to his fee upon the theory that the injury is a permanent one, is not so firmly established, although such recoveries have taken place. The difficulty in such a case arises from the following considerations, viz.: In the case of personal property wrongfully taken, the true owner may elect not to pursue his property, but to hold the wrong doer for the full value thereof. In such a case the title becomes vested in the wrong-doer upon payment. But land cannot be taken like personal property. There may be wrongful use and occupation, trespass and continued trespass, but there can be no conversion in the sense in which personal property may be converted. The moment the wrongful use or occupation or the trespass ceases the owner has his land as before. No title to land can be acquired by wrongful use and occupation or trespass. A deed is necessary to pass the title. The consequence is that in an action at law against an elevated railway company to recover the total damage to the market value of the fee, the company may insist that upon payment of such damage it is entitled to a proper conveyance so as to be protected against the claims of subsequent owners of the premises. But the difficulty may be overcome by the offer of the plaintiff to make such a conveyance. If therefore the complaint charges a taking of a permanent character of property within the constitutional provision, and the answer substantially admitting the taking and the permanent character thereof creates an issue as to the liability of the company to make compensation, an offer by the plaintiff at the In trial to deliver a proper conveyance is sufficient, and the action may then be treated as one on the case. the case at bar all this has substantially been done, and consequently the right of the plaintiff to maintain the action as one for the total damage to the three parcels of property must be sustained, if otherwise made The verdict rendered by the jury in favor of the plaintiff presents however important questions as to the measure of damages. The verdict assesses the total damage to each of the three properties and in addition, under the charge of the court authorizing the jury to do so, which was duly excepted to, allows compensation for loss of rents, viz. : Such compensation may be ascertained and determined on application of the company in proceed-out. ings instituted for the condemnation of so much of the abutting owner's interest as has been taken or is to be taken. The proceedings finally result in a transfer of the title of the property condemned upon payment or deposit of the sum awarded therefor, and such transfer of title when completed is conclusive upon subsequent grantees of the abutting owner and all persons subsequently desiring any title or interest from or through him. Rentals of No. 2 South Fifth avenue....$3,600 00 66 66 2,700 00 2,250 00 46 ceed. He may invoke the powers of a court of equity, and have the construction or the operation of the railway enjoined from and after such lapse of time as under all If the company neglects to commence such pro- ...... 64 66 2,500 00 64 I do not see how this can be sustained even if it be assumed that the plaintiff showed such a union of rights in his person as to entitle himself to a recovery of the total damage. In the case of the actual taking of land for the use of a railroad company, the measure of damages is a fair and full compensation for what was taken. In such a case the owner was always held entitled to the value of the land taken, estimated in view of the purposes for which it was intended to be used, and where the land taken constituted part of a larger parcel, he was also held entitled to damages for the consequential diminution in the value of the residue of his property, restricted within certain limits. Henderson v. N. Y. C. & H. R. R. Co., 73 N. Y. 423; Matter of N. Y. C. & H. R. R. Co., 6 Hun, 149. In case of the abridgment by an elevated railway company of the easement which an abutting owner has in a street opened under the act of 1813, which abridgment injuriously affects the property to which the easement is attached, the abridgment constitutes a taking of private property only to the extent that the erection and maintenance of the structure and the operation of the road are inconsistent with, and consequently in excess of the ordinary uses for which the street was set apart, and the company is liable only to the extent of such taking. Taylor v. Metropolitan Elevated Ry. Co., 50 N. Y. Sup. Ct. 311. In determining, once for all time, the value of what was thus taken, it must be borne in mind that no increased liability exists on the part of the company in consequence of its failure to institute proceedings of condemnation. This has also been in effect determined by this court in the case of Taylor already referred to. The question therefore in every such case is what is the total value of that which was taken? Such value the abutting owner has a right to have determined as of a particular time, as for instance the time of the taking. From such time the owner, as a general rule, is also entitled to interest on the value so determined. As long therefore as the jury in a given case received proper instructions upon this point, and the question was duly considered in the assessment of the amount, it can make no difference whether their verdict in form assesses the value as of the time of the original taking and then awards interest thereon, or whether it is for a corresponding gross sum including both principal and interest. But beyond all that the complaining owner cannot recover for specific items of damage alleged to have been sustained during certain limited periods of time, because all such items must be deemed to be covered by the award of total damage for all times. So I have been unable to find in our jurisprudence any principle upon which such owner can recover his total damage, and in addition loss of rents in the place of interest. The theory of the action, as I have repeatedly shown, always is and always must be to recover compensation for property taken. If such property were personal property, the measure of damages would undoubtedly be the value of the property taken at the time of the taking with interest thereon from such time. This was discussed in the case of Taylor v. Metropolitan Elevated Ry. Co., and a bare reference to what was there said, is all that is necessary here. Why a different rule should be applied to the taking of an easement, and a fluctuating measure preferred to a constant one, I cannot conceive. The mere fact that the easement has been taken in part only, and that a common-law action to recover the permanent depreciation of the fee value of certain premises caused by such partial taking of the easement appurtenant thereto, is to a large extent a novelty, does not warrant such a wide departure from settled principles as would be involved in the promulgation of the rule that in such an action a recovery may be had for loss of rents in lieu of interest and in connection with a recovery of the permanent damage. True, a recovery for loss of rent pure and simple in one action is no bar to a subsequent action for a permanent taking. But in such a case which can only arise in consequence of the continued neglect of the railway company to institute proceedings for condemnation, the company would still have the right to insist that the recovery in the first action for loss of rent should, in the subsequent action, take the place of interest for the period of time for which the recovery was had or should otherwise be duly considered in the assessment of the total permanent damage. In the case at bar the verdict upon its face presents inconsistencies. The jury found that the fee value of premises No. 2 South Fifth avenue was not depreciated at all, and yet $3,600 were awarded for loss of rents. As to premises No. 67 West Third street, the loss of rents was fixed at $2,700, and the damage to the fee value at only $2,500. As to premises No. 88 West Third street, the disproportion is not quite as great, but still large enough to show that the proper measure of damages was not observed. The charge and the verdict in this case were therefore erroneous in the particulars mentioned and cannot be sustained, and as the case is one in which the court at General Term cannot make the proper computation, because it does not appear how the jury arrived at their conclusions, there must be a new trial. There are some other exceptions which it is well to consider in this connection because the questions covered by them will again present themselves upon the new trial. They relate to the refusals of the learned judge who presided at the trial, to charge unqualifiedly several requests made by defendant's counsel, the object of which was to have the jury instructed to the effect that in estimating the damages they could consider neither the noise made by the running of the trains, nor the gas and cinders emitted by the engines, nor the diminution of light and air, or any other effects produced by the running of the trains. In other words, the damages if any were sought to be restricted to such as had been caused solely and exclusively by the erection and maintenance of the structure of the road. The use of the road it was claimed did not entitle the plaintiff to any damages whatever, because the operation of the road upon the surface of the street would not have entitled him to any, if the road had been built as a surface road pursuant to public consent. It is true that the General Term of the Supreme Court, in the case of Story, recently held in substance, that besides the depreciation in value directly caused by the structure of an elevated road and the depreciation in value directly caused by the mere obstruction of the passage and circulation of light and air occasioned by the running of the trains, an abutting owner is not entitled to claim compensation for injury to his property caused by noise, smoke, ashes, dust, steam or cinders, or even the vibration of the building, though they may all be occasioned by the operation of the road, because he could not claim such compensation from a surface road. And it is also true that in the case of Peyser, the General Term of the Court of Common Pleas held that noise caused by the passage of the trains on an elevated road cannot be considered as an element of damage. But this court has already, after full consideration, laid down the rule to be that there may be an abridgment of the abutting owner's easement by the run THE ALBANY LAW JOURNAL. ning of locomotives and trains, and that a recovery for such abridgment may be had, provided it appears that the manner of the running, and the physical effects proceeding therefrom, constitute a use of the street in fact other than or beyond an ordinary and legitimate use of the street, and that this is a question of fact to be determined in each case upon all the circumstances surrounding it. Taylor v. Metropolitan Elevated Ry. Co., 50 Sup. Ct. 311; Drucker v. Manhattan Ry. Co., 51 id. 329. It has also been held that even a surface railroad, lawfully in existence and operation, may in fact be operated to an extent going so much beyoud the ordinary and legitimate uses of the street as to involve an abridgment of the abutting owner's easement in the street and to entitle him to a corresponding compensation. Green v. N. Y. C. & H. R. R. Co., 65 How. Pr. 154. After a full and careful examination of these points of difference existing between this court and the other courts named, we feel constrained to say, that although we entertain the highest respect for the opinions delivered by the learned judges who differ with us to some extent, we have been unable to discover any reason why we should not adhere to our former rulings, for it must be constantly borne in mind that the principle underlying all the decisions in the surface road cases is merely that the construction and operation of a surface road pursuant to public consent, whether it be a horse or a steam railroad in a public street of a city, is not per se a use of such a street inconsistent with the ordinary and legitimate uses of the street. We are therefore bound to hold that inasmuch as there was in this case testimony given, which was properly received and which justified the submission to the jury of the question whether the running of the locomotives and trains as they were run involved a use of the street other than the ordinary and legitimate use, the refusals of the learned trial judge to charge unqualifiedly as requested, did not constitute Whether the qualifications which were made in all respects conformed to the rule as laid down in the cases of Taylor and Drucker, it is not necessary to determine at present, especially as no corrections were asked for at the time. error. There are other questions in the case which we pass in silence as their determination is not necessary at present. For the error resulting in the allowance of loss of rents in addition to the total diminution of the fee value, the judgment and order appealed from must be leversed and a new trial ordered with costs to the appellant to abide the event. Sedgwick, C. J, and Truax, J., concurred. NEW YORK COURT OF APPEALS ABSTRACT. SURROGATE'S COURT-INFANT'S ESTATE-DECREEREVIEW BY GENERAL TERM-CODE, § 2481.-The General Term has no authority to vacate a decree of the Surrogate's Court several years after it was entered, and as to the subject of which and the parties interested the surrogate had full jurisdiction, upon a mere allegation in a collateral proceeding, that some of his determinations were erroneous as matter of law, and with nothing in the petition to show any such fraud or clerical error or newly-discovered evidence, or any other fact rendering such an order proper under section 2481 of the Code. That section, in defining the nature and character of the proof necessary to authorize such a proceeding, very clearly implies that it connot be successfully maintained upon other grounds. An adjudication of a Surrogate's Court made in a pro- cations made in the respective proceedings, has no application to decrees made and proceedings instituted before that Code took effect. Even if the views then suggested were correct it was quite unnecessary to vacate the decrees for that reason, as they would not constitute a bar to any subsequent investigation of the trustees' accounts, inasmuch as the surrogate would not have acquired jurisdiction to render the decrees complained of. Matter of Hawley. Opinion by Ruger, C. J. [Decided Oct. 20, 1885.] WILL-LEGACY-WHEN NOT A CHARGE ON LAND.In the absence of directions by the testator, or some manifest intent on his part, the general rule requires that legacies shall be paid out of the personal estate. It is not enough to make a legacy a charge upon real estate left another that it is directed to be paid, but it must appear that it was to be first paid, or the residuary devise to be after its payment. I have examined the cases cited by the learned counsel for the appellaut. I find none which, under the circumstances of this case, furnishes a rule favorable to the appellant's contention. In Harris v. Fly, 7 Paige, 421, the personal estate of the testator was insufficient to pay his legacies, and the devisee of the land was, by the terms of the devise, directed to pay them. Substantially the same facts appear in the cases cited by the chancellor in his opinion, and among others, in that of Lypet v. Carter, 1 Ves. Sr. 500, to which our attention is also directed by the appellant, and upon those the rule was formulated that where real estate is devised upon condition to pay a legacy, or with direction to the devisee to pay the legacy in respect to the estate so devised to him, and "because that real estate has been thus devised, it is in equity charged with the payment of the legacy, unless there is something in the will to rebut the legal presumption, or from which it can be inferred that the testator intended to exempt the estate devised from that charge." In the case at bar there is more than sufficient personal property; and there is no conditional devise nor expectation even expressed that the devisee as such shall make any payment, nor as executor, except from the personalty. The reasoning as well as the judgment in Myers v. Eddy, 47 Barb. 271, and Reynolds v. Reynolds, 16 N. Y. 259, seems to be with the respondent. It is not necessary to refer to others. For the whole question is one of intent, to be searched for in the light of adjudged cases indeed, but to be determined after all upon the language of the will and the circumstances surrounding the testator, and from neither source can we deduce any thing which will permit us to imply a purpose on his part to make the legacy a charge upon the land. Wiltsie v. Shaw. Opinion by Dauforth, J. [Decided Oct. 13, 1885.] EVIDENCE. ACCOUNT STATED-DURESS - Plaintiff made a claim against defendant, who having disputed it, the parties settled the matter by agreeing upon the amount due, which defendant promised to pay. In an action to recover an account stated, held, that defendant's promise to pay was founded upon a sufficient consideration, and could be enforced, although he might be able to prove that nothing in fact was due plaintiff. Stewart v. Ahrenfeldt, 4 Den. 189; Wehrum v. Kuhn, 61 N. Y. 623; Feeter v. Weber, 78 id. 337. Whether an agreement is executed in consequence of duress is a question of fact. A threat to sue defendant, and to arrest and imprison him, is not such duress as will avoid a promise induced by such threat. 1 Pars. Cont. (5th ed.) 393; Shephard v. Watrous, 3 Caines, 166; Farmer v. Walter, 2 Edw. Ch. 601; Knapp v. Hyde, 60 Barb. 80. Where the facts as to duress depend entirely upon the evidence of the defendant, the trial court is not bound to believe him. Dunham v. Griswold. Opinion by Earl, J. [Decided Oct. 27, 1885.] NEGLIGENCE-EXPLOSION OF CARTRIDGES- QUESTION FOR JURY.-In an action to recover for damages to plaintiff and his assignors, caused by an explosion of blasting cartridges which defendant, who was a contractor, had on hand for the purpose of blasting rocks, the case resolved itself into an inquiry whether the explosion was caused by ignition from the heat of a steam-pipe near which they lay, or spontaneous combustion originating in a defect of manufacture. The jury found that the cartridges were fired by contact with the pipe. Held, that he verdict, having evidence to support it, should be affirmed. Rollins v. Farley. Opinion by Finch, J. [Decided Oct. 27, 1885.] CONTRACT-SERVICES-CERTAIN AMOUNT AND EXPENSES.-An agreement to pay $200 a month, $100 of which is to be expended in travelling and other expenses, is not an absolute agreement to pay $200 a month. Accordingly held, that where it appeared that plaintiff had received $100 a month, and all his expenses, nothing more was due him. Weiss v. Farrington. Opinion by Earl, J. [Decided Oct. 27, 1885.] UNITED STATES SUPREME COURT ABSTRACT.* CONTRACT-TRANSPORTATION BY BOAT OF OFFICERS AND SOLDIERS-INDIAN SUPPLIES.-A person who, by a contract made with him by the quartermaster's department of the army in behalf of the United States, agrees to furnish all the steamboat transportation required by the United States for officers and soldiers between certain places, and to certain Indian posts and agencies, during a certain time, and to "receive from the officers or agents of the quartermaster's department all such military, Indian and government stores, supplies, wagons and stock as may be offered or turned over to him for transportation * ** by said officers or agents of the quartermaster's department, and transport the same with dispatch, and deliver them * to the officer or agent of the quartermaster's department designated to receive them," at a certain rate, is not entitled to claim compensation for Indian supplies, never in charge of the quartermaster's department for transportation, transported between places named in the contract by another person under a contract between him and the commisioner of Indian affairs; although during the same time some Indian supplies are delivered by the commissioner of Indian affairs to the quartermaster's department, and by the department turned over to the claimant for transportation at the rate specified in his contract. Hazlett v. United States. Opinion by Harlan, J. [Decided Nov. 2, 1885.] * * JURISDICTION-AMOUNT IN DISPUTE—SEVERAL PARTIES UNITING TO MAKE AMOUNT.-It is the settled rule that where a judgment or decree against a defendant, who pleads no counter-claim or set-off, and asks no affirmative relief, is brought by him to this court by a writ of error or appeal, the amount in dispute, on which the jurisdiction depends, is the amount of the judgment or decree which is sought to be reversed. Gordon v. Ogden, 3 Pet. 33: Oliver v. Alexander, 6 id. 143; Knapp v. Banks, 2 How. 73; Rich v. Lambert, 12 id. 347; Walker v. U. S., 4 Wall. 163; Merrill v. Petty, 16 id. 338; Troy v. Evans, 97 U. S. 1; *Appearing in 6 Sup. Ct. Rep. |