Cases Disposed of Without Consideration by the Court.

plaintiff in error. The Attorney General for the plaintiff in Mr. John Ridout for the defendant in error.

error.

No. 154. W. F. WYMAN, APPELLANT, V. VIRGILE HERARD. Appeal from the Supreme Court of the Territory of Oklahoma. January 22, 1903. Dismissed with costs, pursuant to the 10th rule. Mr. George Chandler for the appellant. Mr. John W. Shartel for the appellee.

No. 243. OLIVER AMES ET AL., TRUSTEES, ET AL., PLAINTIFFS IN ERROR, V. BOARD OF STREET COMMISSIONERS OF THE CITY OF BOSTON. In error to the Supreme Judicial Court of the State of Massachusetts. February 24, 1903. Dismissed, per stipulation. Mr. J. II. Benton, Jr., for the plaintiffs in error.

M. Babson for the defendant in error.

Mr. Thomas

1. A suit involving the consideration of questions relating to the power of Congress, under the Constitution, over the navigable waters of the United States, is one which involves the construction or application of the Constitution of the United States, and an appeal from the final judgment of the Circuit Court in such action can be taken directly to the Supreme Court of the United States under the Act of Congress of March 3, 1891, c. 517. Cummings v. Chicago, 410.

2. There is no general right to a writ of error from this court to the courts of a State; nor does the mere fact that the action was brought under sections 2325 and 2326 of the Revised Statutes in support of an adverse claim, entitle the defeated party to a writ of error to the state court. There is but a special right to bring such cases, and such cases only, as disclose a Federal question distinctly ruled adversely to the plaintiff in error. Where no title, right, privilege or immunity of a Federal nature was set up and claimed, nor the validity of any Federal statute denied in the state court, nor the validity of any state statute challenged prior to the judgment of affirmance in the highest court of the State, on the ground of its repugnance to paramount Federal law, this court is not justified in taking jurisdiction. Beals y. Cone, 184. 3. To maintain a writ of error asserted under the third of the classes of 745

cases enumerated in section 709, Rev. Stat., the right, title, privilege or
immunity relied on must not only be specially set up or claimed, but
(1) at the proper time, which is in the trial court whenever that is re-
quired by the state practice, as it is in California, and (2) in the proper
way, by pleading, motion, exception, or other action, part or being
made part, of the record, showing that the claim was presented to the
court. Mutual Life Insurance Co. v. McGrew, 291.

4. Where it is claimed that the decision of a state court was against a right,
title or immunity claimed under a treaty between the United States and
a foreign country and no claim under the treaty was made in the trial
court and it is a rule of practice of the highest court of the State that
it will not pass on questions raised for the first time in that court and
which might and should have been raised in the trial court, the writ of
error will be dismissed. Ib.

5. The mere pleading of a decree in a foreign country or of a statute of
such country and the construction of the same by the courts thereof
do not amount to specifically asserting rights under a treaty with that
country. I.

6. Judicial knowledge cannot be resorted to to raise controversies not pre-
sented by the record. Ib.

7. The raising of a point in this court as to the faith and credit which
should be given judicial proceedings of a foreign country, which ceased
to be foreign before judgment was rendered in a state supreme court,
but was not brought to the attention of that court, comes too late. Ib.
8. The construction placed by the highest courts of the State upon a stat-
ute providing for paving streets and distributing the assessment there-
for is conclusive upon this court. Schaefer v. Werling, 516.

1. Where a sheriff after selling under an execution and before paying over
to the judgment creditor, is enjoined in a state court by another cred-

itor from so doing, and immediately after the state court has set the
restraining order aside, and while the money is still in the hands of
the sheriff, and within the time allowed for the return of the execu-
tion, and before it is returned, a petition in bankruptcy is filed against
the judgment debtor, the money does not belong to the judgment cred-
itor but goes, under section 67ƒ of the Bankrupt Act of 1898, to the
trustee in bankruptcy. Clarke v. Larremore, 486.

2. One who received money to indemnify him for giving bail bonds for a
person subsequently and more than four months thereafter adjudicated
a bankrupt, and against whom the judgment creditors in the suits in
which he gave the bonds are seeking to enforce execution, holds such
money as an adverse claimant within the meaning of section 23, a and
b of the Bankruptcy Act of 1898. Jaquith v. Rowley, 620.
See JURISDICTION, C, 1, 2.

BILL OF PEACE.

See PLEADING.

BONDS.

An action upon the official bond of a superintendent of the Mint at New
Orleans, conditioned among other things that he would "faithfully
and diligently perform, execute and discharge all and singular the
duties of said office according to the laws of the United States"
and "receive and safely keep, until legally withdrawn, all moneys or
bullion which shall be for the use or expenses of the Mint." The
claim was that the defendant had received and not paid over to the
United States $25,000 in treasury notes which had come to his hands.
The defence was that the treasury notes had been totally destroyed by
fire, without any negligence on the part of the superintendent, except
that $1182 of such notes had been recovered in a charred condition and
turned over to the United States, being in such condition that they
could be identified as to amount and date of issue. Ield: (1) That
the obligations of the superintendent were not determinable by the
law of bailment, and the superintendent could not escape responsi-
bility for any treasury notes that came to his hands and which were
lost, unless such loss was attributable to overruling necessity or the
public enemy; that their loss by reason of fire constituted no defence.
(2) No deduction could be allowed on account of the $1182 of charred
notes, because no previous application had been made to the proper
accounting officers for the allowance of such a credit. (3) The super-
intendent was liable on his bond for interest at six per cent from the
date on which his accounts were stated at the Treasury Department.
Smythe v. United States, 156.

BOUNTY.

See PRIZE.