Appeals.-- Where a record is defective in that it does not contain sufficient matter for a decree, the Supreme Court will not make a final decision, but the cause will be remanded for further proceedings, p. 109.

1 Pet. 110-135, 7 L. 73, GOVERNOR OF GEORGIA v. MADRAZO. A stipulation which is a mere substitute for the process of the court, cannot be resorted to where the process itself could not be issued according to law, p. 121.

Admiralty.-The Circuit Court cannot exercise original jurisdiction in admiralty, p. 121.

Cited in Braithwaite v. Jordan, 5 N. Dak. 219, 65 N. W. 708, 31 L. R. A. 248, holding action on appeal bond in admiralty would lie in a State District Court.

Constitutional law.- Previous to the adoption of the eleventh amendment to the Constitution, it was determined that the judicial power of the United States extended to a case in which a State was a party defendant, p. 122.

Cited in United States v. Lee, 106 U. S. 212, 217, 27 L. 179, 181, 1 S. Ct. 254, 258, and dissenting opinion, p. 245, 27 L. 190, 1 S. Ct. 281, holding that public officers may be sued by parties claiming the property, though title of United States is determined.

Where jurisdiction depends on the party, it is the party named on the record; and where the chief magistrate of a State is sued not by his name, but by his style of office, and the claim made upon him is entirely in his official character, the State itself may be considered as a party on the record, p. 123.

Cited, affirmed and applied as follows: Kentucky v. Dennison, 24 How. 97, 16 L. 726, holding a suit by or against a governor as such is a suit by or against the State; In re Ayers, 123 U. S. 488, 31 L. 224, 8 S. Ct. 174, holding an action against the officers and agents of a State as such was a suit against the State; State ex rel. v. Doyle, 40 Wis. 205, 209, 210, 211, 212, 214, 215, holding that in a suit against a State officer who has no personal interest, to affect a right of the State, the State is the real defendant; Comer v. Bankhead, 70 Ala. 496, holding a suit to enforce a contract for the hire of convicts against a State warden was against the State; Ferguson v. Ross, 38 Fed. 163, 3 L. R. A. 324, and n., action by shore inspector for penalty was in effect an action by the State; State ex rel. v. Cramford, 28 Fla. 509, 10 So. 128, 14 L. R. A. 263, governor proceeding to compel the secretary of state to seal and countersign a commission is acting for the State; McCauley v. Kellogg, 2 Woods, 22, F. C. 8,688, holding an action against executive officers to compel the levy of a tax to pay bonds is a suit against the State; State ex rel. v. Burke, 3 La. Ann. 505, 507, holding an injunction and mandamus to pre

vent the treasurer and auditor from diverting the funds and to compel payment of coupons was virtually a proceeding against the State; Chaffraix v. Board of Liquidation, 11 Fed. 648, 649, 650, dissenting opinion, holding a Circuit Court could prevent the diverting a fund to pay bonds until the rights of the parties and of the State could be determined; Western U. T. Co. v. Henderson, 68 Fed. 590, holding a suit to restrain an auditor from acting under a statute claimed to be void was not against the State; Tuchman v. Welsh, 42 Fed. 550, holding a suit to restrain a county attorney from proceeding in contempt against one violating the liquor law, was not a suit against the State; Ward v. Hubbard, 62 Tex. 563, holding that a suit on an official bond could be maintained in the name of the governor for the use of the State; McNutt v. Bland, 2 How. 23, 24, 25, 27, 11 L. 165, 166, dissenting opinion, where a governor sued a sheriff on his bond for the use of citizens of another State; Gill v. Stebbins, 2 Paine, 419, F. C. 5,431, holding that where the jurisdiction of a court depends upon the party, it is the party named in the record; Sharp's R. M. Co. v. Rowan, 34 Conn. 333, 91 Am. Dec. 730, holding this to be so, although the respondent is a mere nominal party; Florida v. Georgia, 17 How. 500, 15 L. 197, dissenting opinion, holding that the United States by appearing in a suit between States respecting boundary, does not become a party and no judgment can be entered for or against it; Huston, etc., R. R. Co. v. Kuechler, 36 Tex. 412, holding mandamus would lie against the commissioner of the general land office to enforce the issuance of land certificates.

Parties. Where a proceeding is not against the thing, but against the person, a person capable of appearing as defendant against whom a decree can be pronounced, must be a party to the cause before a decree can be regularly pronounced, p. 124.

Governor.- Where slaves are seized as being illegally imported and are delivered to the governor of a State, who sells a part of them, a libel against the person of the governor for the slaves in his possession as governor and for the proceeds in the treasury of those which have been sold will not lie, p. 124.

Cited in State ex rel. v. Bank of South Carolina, 1 S. C. 73, on the point that a governor cannot in his official character be reached by process.

Admiralty. Libel in admiralty in the District Court will not lle against a State, p. 124.

Admiralty.-Libel in admiralty in the District Court against the thing cannot be sustained where the thing is not in possession of the District Court, p. 124.

1

1 Pet. 136, 137, 7 L. 85, MANDEVILLE v. HOLEY.

Judgment.- Confession of, is in Virginia a release of errors, p. 137.

Not cited.

1 Pet. 138-150, 7 L. 85, GREENLEAF v. QUEEN.

Trusts.- Where a trust deed provides for sale at public auction, the trustee may not sell otherwise, even though believing it for the best, p. 145.

Cited and followed in Foster v. Goree, 5 Ala. 428, on the point that a trustee selling, must act in strict conformity with the power conferred; Chambers v. Mauldin, 4 Ala. 483, on the point that the directions of the deed as to the manner of sale must be pursued; Everett v. Buchanan, 2 Dak. Ter. 267, 8 N. W. 35, on the point that when a public sale is required by the instrument the trustee cannot make a private sale; Sears v. Livermore, 17 Iowa, 300, 85 Am. Dec. 566, holding that where a deed directed that a notice should be posted on a certain door, a posting near, but not on the door is not sufficient; Beebe v. De Baun, 8 Ark. 567, holding a maker of a trust deed cannot object that slaves were not present at the sale where they were absent, because of his act. See note to 19 Am. St. Rep. 281, discussing elaborately sales and conveyances by trustees.

Trusts. Where lots wrongfully contracted to be sold at private sale by a trustee were afterwards properly sold at public auction in accordance with the trust, the first purchaser cannot claim that his contract is void because the lots were sold to him for a less sum than that which they were struck off to the purchasers at the public sale, p. 146.

Cited in Buell v. Buckingham, 16 Iowa, 293, 85 Am. Dec. 523, holding that no one, but one who had an interest in the property before the sale can object; Shorter v. Frazer, 64 Ala. 80, on the point that if an unauthorized sale is ratified by the beneficiary neither the trustee nor the purchaser can repudiate it.

Trusts.- Acts of a trustee in wrongfully selling property at private sale instead of public, are confirmed where the cestuis que trust unite to carry out and enforce the sale, p. 146.

Cited in Foster v. Goree, 5 Ala. 429, holding that an irregular sale by a trustee may be waived by the maker and the beneficiary and no one else can complain; Lucas v. Bank of Darien, 2 Stew. 301, on the point that an imperfect right or title or an invalid proceeding may be ratified by acquiescence.

Vendor and vendee.-It is no defense in an action against a pur chaser that the title is incumbered with the claim of a third per

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son, where the claim is merely a nominal one and not such that equity would enforce it, p. 147.

Vendor and vendee.- It is no defense to an action against a purchaser from a trustee under a trust deed that the land is subject to a right of dower, where the purchaser knew he was purchasing from a trustee and might have known from the records of the dower right and there was no stipulation regarding it, p. 147.

Trusts Pleading.- Where a trustee dies after suit filed and a new trustee has been appointed, the original suit must be prosecuted against the latter by supplemental bill in the nature of revivor; and the fact that the new trustee was administrator of the former, and suit had been revived against him as administrator, does not make him a party to the controversy as trustee, p. 148.

Cited in Tappan v. Smith, 5 Biss. 75, F. C. 13,748, holding that where a complainant has assigned, his assignee cannot be substituted, but must file an original bill in the nature of a supplemental bill; Hazelton, etc., Co. v. Citizens' St. Ry. Co., 72 Fed. 329, holding that one purchasing, pending a suit in equity, may by obtaining leave file an original bill in the nature of a supplemental bill; Birmingham v. Lesan, 77 Me. 498, on the point that generally, matters occurring after the filing of the original bill may be inroduced into the record by supplemental bill.

Judgment. On a bill against a trustee, a decree which after directing the trustee to perform a number of acts proceeds to dismiss the bill, with costs, is erroneous, p. 149.

Parties. A bill may be dismissed where the plaintiff when called upon to make proper parties, fails or refuses to do so; but to dismiss a bill without a demurrer, answer, or plea pointing out the persons who ought to be made parties, is erroneous, p. 149.

Cited in Sheffield, etc., Co. v. Newman, 77 Fed. 791, 41 U. S. App. 766, on the point that if a defect of parties appears on the face of the bill the objection must set up the defect by plea or answer; Hutchinson v. Reed, 1 Hoff. Ch. 320, holding that if an answer raises the objection of want of proper parties, it is within the discretion to dismiss or to allow an amendment; Van Epps v. Van Deusen, 4 Paige Ch. 75, 25 Am. Dec. 522, holding that if on objection for want of proper parties the complainant neglects to amend, the tourt may on the hearing permit the cause to stand over or dismiss.

Trusts. Where a trustee of land dies after suit filed against him by a purchaser under a contract to convey, a decree against a substituted trustee which fails to require the heirs-at-law of the first trustee to release their title, is erroneous, p. 149.

Cited in Bryan v. Stevens, 4 Fed. Cas. 511, on the point that whenever the legal estate is vested in parties, they may sustain or defend actions without having the persons interested in the trust

ANN

brought in; Abbott, Petitioner, 55 Me. 593, holding that on the death of a trustee the legal estate passes to his heirs and will not pass to a new trustee until conveyance; Learned v. Tretch, 6 Colo. 442, on the point that on the death of a grantee of an absolute conveyance on trust, the widow of the trustee as sole heir and devisee takes the estate.

Miscellaneous.- Miscited in Dudley's Case, 7 Fed. Cas. 1154, in considering the effect of judgment as a lien.

1. Pet. 151-164, 7 L. 90, BUCK v. CHESAPEAKE INS. CO. Instructions.- Courts are not bound to modify or fashion the instructions moved for by counsel so as to bring them within the rules of law, p. 159.

Cited in Maryland, etc., Co. v. Bathurst, 5 Gill & J. 225, holding court may, in its discretion, content itself with a simple refusal of and prayer not sanctioned; Haffin v. Mason, 15 Wall. 674, 21 L. 197, holding one cannot assign as error the refusal of an instruction to which he has not the right to the full extent as stated.

Insurance.-An instruction that in policies "for whom it may concern," there can be no undue concealment as to the parties interested in the property to be insured, is erroneous, p. 159.

Insurance is a contract of good faith, and is void whenever imposition is practiced, p. 160.

Insurance.-A policy "for whom it may concern," will, in ordinary cases, cover belligerent property, pp. 160, 161.

Referred to in the note to 16 Am. Dec. 323, citing authorities on the phrase "for whom it may concern." See authorities cited, post. Insurance.- Previous representations will be sunk or absorbed or put out of the contract, where the policy is executed in obvious inconsistency with those representations, p. 160.

Marine insurance.-A knowledge of the state of the world, of the allegiance of particular countries, of the risks and embarrassments affecting their commerce, of the cause and incidents of the trade on which they insure, and of the established import of the terms used in their contract, must necessarily be imputed to underwriters, p. 160.

Cited in Grant v. Lexington Ins. Co., 5 Ind. 28, 61 Am. Dec. 79, holding that insurers are bound to know the usages of the trade to which the policy belongs; Clark v. Manufacturers' Ins. Co., 8 How, 249, 12 L. 1067, on the point that it must be presumed that the insurer knows what is material in the course of any particular trade; Maryland, etc., Co. v. Bathurst, 5 Gill & J. 226, holding that knowledge of facts of universal notoriety in the commercial world relating to the course of trade upon a voyage is imputable to underwriters,