v. Water-Works Co., 41 La. Ann. 945, 7 South. 21, majority holding former judgment not an estoppel when subject matter was different. Distinguished in Matter of Patterson, 146 N. Y. 331, 40 N. E. 990, holding that an order appointing an alleged husband to administer, was no har to the next of kin, actually existing, asserting their right to the whele estate and to have the decree, distributing the estate to the adninistrator, canceled; Williams v. Williams, 63 Wis. 71, 53 Am. St. Rep. 261, 23 N. W. 116, holding decree of divorce did not estop woman from proving illegality of the marriage in a suit for dower against estate of a subsequent husband.

Collateral attack on decree granting letters testamentary or of administration. Note, 4 Ann. Cas. 1119.

Conclusiveness of probate as res judicata. Note, 21 L. R. A. 683.

13 Wall. 475–479, 20 L. Ed. 542, THE ARIADNE.

Duty of lookout is of highest importance, and law requires indefatigable care and sleepless vigilance; the rigor of the requirement rises according to speed and power of vessel.

Approved in Argo S. S. Co. v. Buffalo S. S. Co., 223 Fed. 588, 139 C. C. A. 113, holding both vessels in collision at fault in failing to keep proper lookout; Great Lakes S. S. Co. v. Pittsburgh S. S. Co., 222 Fed. 866, 138 C. C. A. 288, holding under facts of case absence of lookout not material; The Cypromene, 135 Fed. 565, holding steamer navigating river at night without lookout liable for collision with ship anchored in customary anchorage; The Sitka, 132 Fed. 864, holding steamer liable for collision with passing vessel where she had no efficient lookout; The Echo, 131 Fed. 631, holding steamer navigating river opposite New Orleans liable for collision where she had no lookout other than master; The Richmond, 114 Fed. 213, holding steamer liable, night stormy, without lookout, and speed not reduced after schooner's lights seen; Wilder's S. S. Co. v. Low, 112 Fed. 172, 50 C. C. A. 473, holding steamer liable failing to maintain lookout; The Minnie, 100 Fed. 131, 40 C. C. A. 312, holding tug with tow liable for collision with schooner, tug observed schooner but failed to change course; The Oregon, 158 U. S. 193, 39 L. Ed. 948, 15 Sup. Ct. 808, holding that on a steamship under charge of a river pilot, under circumstances proved, there should have been a lookout on either bow, but it was not negligence to have only one; The J. W. Everman, 2 Hughes, 20, Fed. Cas. 7591, holding that a vessel entering a harbor at night-time was put on her utmost vigilance and the master and crew should be on deck; The Express, 44 Fed. 396, holding collision caused by having no proper lookout on either ship; Flint etc. R. Co. v. Marine Ins. Co., 71 Fed. 220, sustaining validity of paragraph 5 of rule 8 of supervising inspectors, requiring all passenger and freight

steamers to have, in addition to regular pilot, one of the crew on watch in or near the pilot-house.

Every doubt as to performance of duty and effect of nonperformance should be resolved against the vessel sought to be inculpated, until she vindicates herself by conclusive testimony to the contrary.

Approved in Rutland Transit Co. v. L. P. & J. A. Smith Co., 209 Fed. 48, 126 C. C. A. 189, The Tillicum, 217 Fed. 978, and The Wilbert L. Smith, 217 Fed. 984, all holding burden on moving vessel in collision to show proper lookout not sustained; Eastern Dredging Co. v. Winnisimmet Co., 162 Fed. 862, 89 C. C. A. 550, holding ferry-boat negligent in colliding with scow in harbor by reason of insufficient lookout; The George W. Roby, 111 Fed. 612, 49 C. C. A. 481, holding steamer liable, night foggy, no lookout, speed not reduced to steerageway, or reduced when signal unanswered; The Ancon, 6 Sawy. 123, Fed. Cas. 348, holding vessel to blame where the lookout was dismissed by the second mate, who assumed the duties and was himself negligent; Robinson v. Detroit etc. Steam Nav. Co., 73 Fed. 892, 20 C. C. A. 86, holding that where a tug had no lookout it was a fair presumption that, if she had had one, the collision might have been avoided.

Fault of sailing ship does not excuse fault of steamer, if latter were in any degree a contributory cause of collision.

Approved in The Sunnyside, 91 U. S. 221, 23 L. Ed. 307, collision between sail and steamer, holding it was the duty of the sailing vessel, under the circumstances, to change her course when the steamer was drifting, waiting for a tow; The Frank Moffat, 2 Flipp. 297, Fed. Cas. 5060, where absence of a proper light held negligence on part of propeller, contributing to the collision; The Columbia, 23 Blatchf. 270, 25 Fed. 845, holding where the ship, having the right of way, received no response to her signals, she was to blame for keeping on her course; Meyers Excursion etc. Co. v. The Emma Kate Ross, 41 Fed. 828, holding that a vessel, whose duty it was to keep her course, should not anticipate the movements of another vessel and give way; New York Harbor Towboat Co. v. New York etc. R. Co., 148 N. Y. 580, 42 N. E. 1088, in suit for damages arising out of collision between steamboat and ferry-boat, holding both to blame.

Both vessels being in fault, damages must be divided.

Approved in The Max Morris, 137 U. S. 9, 34 L. Ed. 587, 11 Sup. Ct. 31, decreeing divided damages in case of personal injury, but not fixing the proportions.

Concurrence of judgments of lower courts raises a prima facie presumption of correctness, but Supreme Court, if of contrary opinion, must not neglect its duty by declining to give it judicial effect.

Approved in Merchants & Miners' Transp. Co. v. Robinson-BaxterDissosway Towing etc. Co., 194 Fed. 362, 114 C. C. A. 321, holding appellate court would follow judgment of trial court on facts when it was impossible to say contrary finding would be more likely to be correct; The Columbian, 100 Fed. 996, 41 C. C. A. 150, holding Circuit Court of Appeals not bound by finding of fact made by lower court; The City of Augusta, 80 Fed. 298, 25 C. C. A. 430, conclusions of district judge relied upon as of great value in a doubtful case.

13 Wall. 480-497, 20 L. Ed. 698, CARPENTIER v. MONTGOMERY.

Where one of boundaries of Mexican grant in California is so uncertain that it cannot be defined, title is imperfect until confirmed by United States. Approved in Pinkerton v. Ledoux, 129 U. S. 354, 32 L. Ed. 709, 9 Sup. Ct. 402, holding that if the petition and writ of possession did not enable the jury to definitely locate the boundaries, the finding in an action of ejectment must be for defendant.

Confirmation of Mexican grant in California inures solely to benefit of confirmee, as regards legal estate and right to patent; but the equitable rights are preserved and can be enforced by proceedings in equity.

Approved in Rector v. Gibbon, 111 U. S. 291, 28 L. Ed. 433, 4 Sup. Ct. 612, holding that equity will constitute the holder of the legal title a trustee for the real owners and compel a conveyance; Widdicombe v. Childers, 124 U. S. 405, 31 L. Ed. 430, 8 Sup. Ct. 520, holding that a patent vests the patentee with the legal title, but does not determine the equities; Bouldin v. Phelps, 12 .Sawy. 312, 30 Fed. 560, holding that a party claiming under an imperfect Mexican grant cannot maintain ejectment against another whose claim has been confirmed.

Fifteenth section of Act of 1851, respecting settlement of California titles, explained.

Approved in Manning v. San Jacinto Tin Co., 7 Sawy. 424, 9 Fed. 730, holding that, as between a locator of a mining claim under the act of 1866 and a patent issued for a Mexican grant confirmed before the location, the patent is conclusive.

While patent on a pre-emption right confers legal title, patentee may be subjected in equity to any just claim of a third party, even to extent of holding title for his use.

Approved in Brooks v. Garner, 20 Okl. 245, 94 Pac. 698, holding where deed to lot was issued by townsite trustees to one not entitled thereto grantee held in trust for equitable owner; dissenting opinion in Galliher v. Cadwell, 3 Wash. Ter. 514, majority holding that one who has been allowed to perfect his entry without notice and has paid for the land cannot be charged in equity as a trustee.

Ejectment cannot be maintained by holder of equitable title against one holding under patent.

Approved in Suttle v. Richmond etc. R. Co., 76 Va. 288, holding that in ejectment the plaintiff must show the legal title and a present right of possession; Nelson v. Triplett, 81 Va. 237, to same effect.

Miscellaneous. Cited in State v. Taylor, 27 N. D. 88, 145 N. W. 429, to point that legislature cannot transfer to inferior court established power of Supreme Court created by Constitution; Brown v. Kalamazoo Cir. Judge, 75 Mich. 278, 13 Am. St. Rep. 440, 5 L. R. A. 228, 42 N. W. 828; Arnold v. Sinclair, 12 Mont. 278, 29 Pac. 1134.

13 Wall. 497-506, 20 L. Ed. 663, CHEW v. BRUMÁGEN.

Where bond and mortgage are assigned as collateral security, assignee becomes holder of legal right under an express trust, and assignor is not necessary party to suit on the bond.

Approved in Rejall v. Greenhood, 92 Fed. 947, 35 C. C. A. 97, holding beneficiaries not necessary parties to suit to set aside a deed creating a trust; Watkins v. Bryant, 91 Cal. 504, 27 Pac. 777, to same effect. Assignment of insurance. Note, 64 Am. Dec. 532.

Miscellaneous. Cited in Ferry v. Miltimore Car Wheel Co., 71 Vt. 459, 76 Am. St. Rep. 788, 45 Atl. 1035, to effect declaration upon judgment of sister States sufficient without specially pleading jurisdiction.

13 Wall. 506–517, 20 L. Ed. 702, FRENCH v. EDWARDS.

Statutory requisitions intended for guidance of officers in conduct of their business are directory, unless accompanied by words importing that the acts shall not be done in any other manner or time; but when intended for protection of the citizen, and disregard of them would injure his property, they are mandatory. The power of the officer is then limited by the manner and conditions prescribed for its exercise.

Approved in Lansburgh v. McCormick, 224 Fed. 879, 140 C. C. A. 296, upholding statute providing tax deed should vest title in grantee notwithstanding irregularity in proceedings, unless prejudicial; Idaho Ry. Light & Power Co. v. Monk, 218 Fed. 684, holding statute limiting time for State board of equalization to complete assessment was directory, and increased assessment on certain property made after time limited was valid; Western Electric Co. v. North Electric Co., 135 Fed. 82, 67 C. C. A. 553, where, under Rev. Stats., § 4885, by reason of accumulation of work, patent cannot be prepared within six months after allowance, and it is reallowed and issued on later date, it is not void; Allen v. City of Davenport, 132 Fed. 215, 65 C. C. A. 641, under Iowa 25th Gen. Assem. Acts, c. 7, p. 18, providing that all street improvements shall be made by contract, special assessment cannot be levied unless valid contract made;

Campbellsville Lumber Co. v. Hubbert, 112 Fed. 725, 50 C. C. A. 435, holding bondholders not entitled to extraordinary remedies provided in act unless bonds contain such stipulation in fact; National Nickel Co. v. Nevada Nickel Syndicate, 106 Fed. 114, holding order of sale inadvertently following State statute and not following requirements of notice of sale renders sale merely voidable; In re Stein, 105 Fed. 750, 45 C. C. A. 29, holding jurisdiction of original bankruptcy petition not lost by creditors merely issuing subpoena and returning same indorsed thereon "debtor not found"; Commercial Bank v. Sandford, 103 Fed. 102, 99 Fed. 156, holding tax sale voidable, tract sold of much greater value than amount named in warrant and capable of division; Court of Commrs. v. State, 172 Ala. 250, 55 South. 626, holding provisions as to time of assessment were directory; American Trust Co. v. Nash, 111 Ark. 100, 163 S. W. 179, holding provision that clerk of county court keep accurate record of proceedings of board of equalization was mandatory; McDonald v. Littlefield, 5 Mackey (D. C.), 578, holding mandatory provision for notice to owner assessed of amount of assessment for public improvement; City of Newton v. Board of Supervisors, 135 Iowa, 30, 124 Am. St. Rep. 256, 112 N. W. 168, holding provision that portion of road fund collected on property in city be expended on streets was mandatory; Cheney v. Coughlin, 201 Mass. 212, 87 N. E. 747, holding void liquor license granted on application describing building not in existence, where statute required description of premises; Montana Ore etc. Co. v. Maher, 32 Mont. 487, 81 Pac. 15, ten days' notice to taxpayer of increase in assessment required by Pol. Code, § 3789, is jurisdictional; Western Ranches v. Custer Co., 28 Mont. 281, 72 Pac. 660, holding ten days' notice under Pol. Code, § 3789, to persons of time fixed for increase of tax assessment jurisdictional; Lancaster Sea Beach Imp. Co. v. City of New York, 214 N. Y. 12, 108 N. E. 93, holding setting down amount of tax in wrong column of assessment-roll did not avoid assessment; Hertzler v. Freeman, 12 N. D. 190, 96 N. W. 285, assessment of realty in name of another than true owner does not render tax void; Frazier v. Prince, 8 Okl. 258, 58 Pac. 752, under Okl. Stats. 1893, § 5618, where three contiguous lots are listed separately, but valued together, assessment is void; Sweet v. Boyd, 6 Okl. 711, 52 Pac. 943, refusing to enjoin collection of taxes for mere irregularities in tax proceedings which did not affect substantial rights; Sharpe v. Engle, 2 Okl. 628, 39 Pac. 385, taxpayer cannot enjoin collection of taxes because levied few days after time provided by Okl. Stats. 1893, § 5627; Tefft v. Lewis, 27 R. I. 17, 60 Atl. 246, under Pub. Laws 1903, p. 33, c. 1101, vesting title to property of abolished school districts in towns, and providing for appraisement of property and levy of tax to pay therefor, assessment without appraisal is void; Koth v. Pallachucola Club,. 79 S. C. 517, 61 S. E. 78, upholding statute providing for