etc., Smelting, etc., Co., 63 Fed. 888, 27 U. S. App. 469, holding donee of land not chargeable with notice of fraudulent use of city money in original purchase thereof; Campbell v. Fetterman's Heirs, 20 W. Va. 414, holding it gross negligence where vendee knew that third party was in possession and did not inquire into nature of said possession; Alexander v. Rodriguez, 1 Fed. Cas. 381, holding rumor not sufficient to charge with notice. Cited generally in Empire, etc.. Nail Co. v. Faulkner, 55 Fed. 823, application vague; Van Slyck v. Skinner, 41 Mich. 190, 1 N. W. 973, Streitz v. Hartman, 26 Neb. 48, 41 N. W. 808, and Transportation Co. v. Pipe-Line Co., 22 W. Va. 613.

Cited, but application denied, in Watson v. Sutro, 86 Cal. 523, 24 Pac. 179, where question was of interpretation of deed, and not of notice.

Miscellaneous.- Elk v. Wilkins, 112 U. S. 100, 28 L. 645, 5 S. Ct. 44, as to status of Indians and effect thereon of treatles; Wau-peman-qua v. Aldrich, 28 Fed. 498, as to rights of Indians under treaty, non-taxation; Utah Mining, etc., Co. v. Mining Co., 6 Utah, 197, 21 Pac. 1007, 5 L. R. A. 267, as to Indian right of occupancy; Massie v. Graham, 3 McLean, 52, F. C. 9,263, holding court may refuse leave to file bill for newly-discovered material evidence.

6 Wall. 91-93, 18 L. 763, THE WATCHFUL.

Admiralty. Where libel against ship as prize has been discharged in lower court, if record on appeal discloses strong prima facie evidence of violation of neutrality and revenue laws, case will be remanded for amendment and further investigation, p. 93. Cited generally in The City of Mexico, 28 Fed. 150, dismissing one libel and affirming another.

Distinguished in The Itata, 56 Fed. 515, 15 U. 8. App. 1, holding ship libelled for one offense cannot have decree entered against her for another and separate offense.

6 Wall. 94-100, 18 L. 752, WICKER v. HOPPOCK.

Judicial sales.- Validity of an agreement as to bidding at an execution sale depends upon intention of parties, and if it be without intent to prevent competition it will be sustained, p. 97.

Cited and applied in Marie v. Garrison, 83 N. Y. 28, holding fair agreement for purpose of preservation of property valid, although incidentally tending to restrict competition; Hopkins v. Ensign, 122 N. Y. 150, 25 N. E. 307, 9 L. R. A. 733, and n., like last citation; Culver v. Nester, 116 Mich. 194, 74 N. W. 533, holding agreement to bid valid; Gulick v. Webb, 41 Neb. 712, 43 Am. St. Rep. 724, 60 N. W. 15, where parties agreed that one should bid for benefit of all, the rest not bidding. Cited generally in Terbell v. Lee, 40 Fed. 42. upholding agreement to bid at sale and resell to other party to

said agreement, and agreement not to bid where such agreement could not affect price or competition; Woodruff v. Berry, 40 Ark. 266, holding agreement between several that one only shall bid, and divide profits with others, void as tending to prevent competition.

Damages.- General rule is that compensation shall be equal to injury in cases of wrong for which law gives a remedy, p. 99.

Cited and applied in Broumel v. Rayner, 68 Md. 51, 11 Atl. 834, where plaintiff, owning half of lot, recovered half of sum paid by him for grading whole, the contract providing that parties should grade. Cited generally in Kohn v. Dravis, 94 Fed. 290, as to measure of damages for conversion by mortgagee of mortgaged goods; Mathesius v. Brooklyn, etc., Ry., 96 Fed. 795, holding amount which would have been received had contract been kept, measure of damages for breach thereof.

Damages. Where party entitled to benefit of a contract can save himself from a loss by breach at trifling expense, or with reasonable exertion, it is his duty so to do, and he can charge the delinquent with such damages only as with reasonable endeavors he could not prevent, p. 99.

Cited and principle applied in Warren v. Stoddart, 105 U. 8. 229, 26 L. 1120, and Baird v. United States, 131 U. S. cix (appendix), 21 L. 523, where contractors unnecessarily allowed their claim for . damages to swell; Lawrence v. Porter, 63 Fed. 67, 22 U. S. App. 483, 26 L. R. A. 170, where vendor, after breach of agreement to sell on credit, offered to deliver for cash at a reduction, and vendee bought of others at an advanced price instead; Yellow Poplar, etc., Co. v. Chapman, 74 Fed. 456, 42 U. S. App. 21, and Burdon, etc., Co. v. Ferris, etc., Co., 78 Fed. 427, where plaintiffs could have minimized their loss but failed to do so; Insurance Co. v. Werlein, 42 La. Ann. 1053, 8 So. 438, 11 L. R. A. 364, and n., where plaintiff failed to use reasonable precautions to lessen damage likely to be occasioned by falling wall; Judice v. Southern Pac. R. R., 47 La. Ann. 257, 16 So. 817, where plaintiff, put off at wrong station, refused to ride to destination on handcar provided by company. Cited in dissenting opinion in The Ceres, 72 Fed. 944, 38 U. S. App. 441, opinion, where plaintiff might have lessened loss by shipping in faster vessel, majority holding failure of speed of ship damage within contemplation of parties.

Cited, but application denied, in Pettle v. Boston Towboat Co., 49 Fed. 467, 1 U. S. App. 57, where attempt to raise sunken barge would have been abortive.

Indemnity. On breach of contract to indemnify, obligee can recover only for actual damage and to the extent of the injury received at the time the suit was instituted, p. 99.

Cited and applied in Culmer v. Wilson, 13 Utah, 149, 57 Am. St.

Rep. 725, 44 Pac. 838, holding cause of action and statute of limitations commence to run from time of actual damage; Hicks v. Hoos, 44 Mo. App. 580, where plaintiff plead agreement to indemnify. Cited generally Mills v. Dow, 138 U. S. 433, 33 L. 721, 10 S. Ct. 415, holding agreement "to assume contracts" not an agreement of indemnity, but to discharge from liability; Johnson v. Risk, 137 U. S. 308, 34 L. 686, 11 S. Ct. 114, holding agreement to assume indebtedness not one to indemnify, but to discharge from all liability; Weller v. Eames, 15 Minn. 468, 2 Am. Rep. 150, on indemnity bond.

Distinguished in Central Trust Co. v. Louisville Trust Co., 87 Fed. 27, holding rule not applicable in equity, and permitting recovery of expenses incurred but not yet paid by obligee.

Damages. Upon breach of contract to pay, measure of damages ls full amount agreed to be paid, p. 99.

Cited and applied in Mills v. Dow, 133 U. S. 433, 33 L. 721, 10 S Ct. 415, agreement to assume contract of another; Johnson v. Risk, 137 U. S. 308, 34 L. 686, 11 S. Ct. 114, agreement to assume indebtedness of another; Lock v. Horner, 131 Mass. 100, 41 Am. Rep. 205, covenant to assume mortgage held agreement to pay mortgage debt; Farnsworth v. Boardman, 131 Mass. 122, where agreement was to assume indebtedness; Merriam v. Pine City Lumber Co., 23 Minn. 323, agreement to pay debt; American Employees, etc., Ins. Co. v. Fordyce, 62 Ark. 569, 54 Am. St. Rep. 306, 36 S. W. 1053, holding policy promising to pay damages legally charged to assured, an agreement to pay, and not to indemnify; Callender v. Edmison, 8 S. Dak. 85, 65 N. W. 426, holding agreement to pay another's debt at stated time an agreement to pay, and full amount recoverable although promisee has not paid; Haas v. Dudley, 30 Or. 363, 48 Pac. 171, agreement to assume mortgage. Cited generally in Tryce v. Yoemen, Kan. App. —, 54 Pac. 289.

Miscellaneous.- Hewett v. Currier, 63 Wis. 395, 23 N. W. 888, but without application.

6 Wall. 101-112, 18 L. 792, UNITED STATES Y. ADAMS.

Appeal and error.- Under act of March 3, 1863, appeal from Court of Claims, where amount in controversy exceeds $3,000, is a matter of right and not of judicial discretion, p. 107.

Courts. Where appeal is a matter of right, Supreme Court, while empowered to frame rules for its proper exercise, cannot take it away, p. 107.

Appeal will not be dismissed because findings and other records made by the lower court are not in conformity with the rules of the Supreme Court, p. 110.

Appeal. Where lower court's findings are mere recitals of evidence without conclusions of facts, Supreme Court will remand case with directions to return proper findings, p. 112.

Cited and applied in Smith v. Sac County, 11 Wall. 162, 20 L. 109, in libel case.

6 Wall. 112-116, 18 L. 764, LAGUE v. ATCHISON.

Adverse possession.— One claiming under a sheriff's sale on a judgment against party having no title, possesses neither the title nor color of title required by Texas statute of limitations, p. 116.

Cited in Saunders v. Silvey, 55 Tex. 48, holding possessor under deed of designated portion of tract cannot invoke statute against owner of undivided interest in same tract under prior deed from common vendor.

6 Wall. 116-124, 18 L. 730, OSTERMAN v. BALDWIN.

Aliens.- Although Texas Constitution forbade aliens to hold land, until office found an alien was competent to hold against third persons, pp. 121, 122.

Cited and principle followed in Hanrick v. Patrick, 119 U. S. 169, 30 L. 404, 7 S. Ct. 153, holding aliens' title valid unless declared forfeited under "office found;" Hammekin v. Clayton, 2 Woods, 340, 341, F. C. 5,996, an identical case, collecting authorities; Billings v. Aspen Mining Co., 51 Fed. 343, 10 U. S. App. 1, upholding title of alien to interest in mine as against co-locators seeking to oust him; Princeton Mining Co. v. First Nat. Bank, 7 Mont. 539, 19 Pac. 212, upholding aliens' title to mine against attachment levied on aliens' trustee; Settegast v. Schimpf, 35 Tex. 341, holding alien's land descended to his heirs and did not escheat; Andrews v. Spear, 48 Tex. 579, following last case; Hanrick v. Hanrick, 54 Tex. 113, holding alien's title valid and descendible unless "office found; " Baker v. Westcott, 73 Tex. 134, 11 S. W. 159, holding alien's title valid against third parties; Gray v. Kauffman, 82 Tex. 67, 17 S. W. 514, where alien owner recovered in trespass; Wilson v. Triumph Mining Co., Utah, 56 Pac. 302, sustaining title to mining claim conveyed to citizen by alien locator; Quigley v. Birdseye, 11 Mont. 446, 28 Pac. 743, holding grant of ditch and water right to alien not an abandonment by owner, and alien's title good against collateral attack; Williams v. Bennett, 1 Tex. Civ. App. 506, 20 S. W. 858, where in the absence of "office found" an alien's title was sustained.

Cited, but not applied, in Wulf v. Manuel, 9 Mont. 285, 23 Pac. 725, denying right of alien to locate mining claims.

Aliens.- Naturalization has a retroactive effect, and waives all liability to forfeiture of land held while an alien, confirming title thereto, p. 122.

Cited and followed in Manuel v. Wulff, 152 U. S. 511, 38 L. 534, 14 S. Ct. 653, reversing S. C., 9 Mont. 285, 23 Pac. 725, holding naturalization confirmed former alien's title to mining claim; Bogan v. Edinburgh, etc., Land Co., 63 Fed. 197, 198, 27 U. S. App. 346, upholding title of qualified pre-emptor who filed application prior to naturalization; Lone Jack Mining Co. v. Megginson, 82 Fed. 94, 48 U. S. App. 461, holding declaration of intention relates back and validates location by alien; Hanrick v. Hanrick, 54 Tex. 114, holding defeasible title of alien made indefeasible by subsequent citizenship; Baker v. Westcott, 73 Tex. 134, 11 S. W. 159, holding conveyance to allen became indefeasible on his becoming a citizen; Williams v. Bennett, 1 Tex. Civ. App. 506, 20 S. W. 858, an identical case.

Qualified in Wulf v. Manuel, 9 Mont. 285, 23 Pac. 725, holding naturalization not retroactive with regard to location of mines, such location being allowed only to citizens.

Execution.- Where land is sold by a sheriff having express notice of adverse claim thereto, a purchaser at such sale cannot be considered an innocent purchaser for value, p. 122.

Execution. A purchaser at sheriff's sale buys exact interest which debtor has in the property and takes subject to all outstanding equities, p. 122.

Cited and applied in The Vigilancia, 73 Fed. 455, 38 U. S. App 563, holding lien creditor by judgment can have no better title than he acquires from debtor; Polhemus v. Empson, 27 N. J. Eq. 194, holding purchaser at sheriff's sale takes subject to equities for waste by debtor tenant in common; Rodgers v. Burchard, 34 Tex. 153, 7 Am. Rep. 286, by analogy to holder under quitclaim deed: Massey v. Hubbard, 18 Fla. 690, holding purchaser at sheriff's sale does not take good title against prior grantee by unrecorded deed, grantee being in possession.

Trusts. One holding land purchased and paid for by an alien, but deeded to him to evade disabilities of allenage, holds as a trustee under an express trust, equitable title being in alien, p. 123.

Cited to point of syllabus in Princeton Mining Co. v. First Nat. Bank, 7 Mont. 539, 19 Pac. 212.

Frauds, statute of.- Trusts are not within the Texas statute of frauds and may be proved by parol, p. 123.

Cited in Patton v. Beecher, 62 Ala. 586, holding trusts provable by parol, the statute of frauds enacted after the emigration of our ancestors not applying.

Adverse possession.— Agreement to convey title is not color of title within Texas statute of limitations, p. 124.

Cited and applied in White v. Stokes, Ark., 53 S. W. 1061, holding improvements made by possessor under bond for title, not made under color of title. Cited in note, 14 Am. Dec. 584, on color of title.