*1 TERM, 1925. Appellant. for Counsel NEVADA WELLS FARGO BARNETTE v. BANK et NATIONAL al. OP FOR THE PROM THE CIRCUIT COURT APPEALS

APPEAL NINTH CIRCUIT. January 15, 1926. 1926. Decided March 149.

No. Submitted charge funds in a receiver of a A suit to recover land and 1. Alaska, by Congress, removable created laws court of court, under Judicial and a federal Code a state to § August 23, 1916. 441. as amended P. bill, suit was removable the face of and the 2. Where a challenged, presumed removal be to been removal is not stipulation rightly taken, although, due omission of the to transcript, ground papers from which removal removal sought actually affirmatively appear. does and allowed 440. P. Authority defend, appear, from a its receiver to and make court to

3. equivalent in a him in counterclaim suit another court is plaintiff bring the suit.

to leave to the P. operate only 4. Acts induced duress which on the mind and fall compulsion, only. are not void voidable physical short of but P. 444. prerequisite canceling relief equitable

5. It is a contract that promptly election to' disaffirm be exercised after cessation of degree promptness depending largely upon the duress, the delay upon rights sought effect those are whose divested. of. P. 444. . Unexplained delay years of more than three held fatal to suit duress, set aside a deed for where the defendants were left in ignorance plaintiff’s prejudiced. necessarily intention P. affirmed.

Appeal from a Appeals decree Circuit Court of reversed a decree favorable District Court set appellant her suit do aside a deed duress, recovery for of rents, etc. ap- Messrs. Wm. R. for Chapman H. P. Henshall pellant. FARGO NAT. BANK.

BARNETTE v. WELLS Appellant. Argument Nat. laches. v. Union The case not barred Grier Dunn, 268 U. United States v. L. Ins. Wilson v. Truebody, 137 Cal. 121; Truebody Y. *2 n OswegoTp., Schell, 142 Savings 151 Bank v. 56; U. S. Co.'y. 483; Bogart, 505; Southern 250 XJ. Cal. Pacific y. Allen Boyd, 482; 228 Northern v. U. S. Co. Pac. Bay, Bank 135 Eureka v. County, 161; So. Leflore Noyes, 245 Fed. 46. 584; Jesson v. the bene-

The who were depositors practised duress real trust. They ficiaries under receiver’s States, Ziang Sung in interest. Wan United v. La. Bryant Levy, 52 Ann. 1649. 1; v. act, sup- he induced fraudulently Where one is to do different is,’ fact, doing something that he poses acquainted done, he has and whenever he becomes what exist or when such facts, the actual circumstances with rights being. him his into upon notice, spring put as In exactly wronged knows duress, party the case he is but his mind is do that doing compelled time, would not otherwise have The which‘he done. when he therefore, legal assert his may rights dependent is entirely may different considerations and the duress continuing subsequent: be as regarded long a time lawyer, The is neither business man plaintiff nor a must be in a very her case viewed different attitude from of one who is threatened with duress as the case affected her himself alone. The duress husband here County, as Allen v. children well herself. as Leflore Bay, 135 Blither 161; 584; Eureka Bank v. Pac. So. Gorman,. Packard, 929; 98 Atl. St. L. & S. F. Co. v. Sherman, Iron 20 Md. 100 Pac. Co. v. receiver authorizing no statute

Even where there is true that the failure to obtain sued, principle is, to be jurisdiction. to sue does The rule go leave comity jurisdiction. Tardy’s Smith one and not 254a; Receivers, 4th Receivers, 748; High ed., § § Opinion Court. Shriner, Pierce,

Walcott 153 Ind. 35; Ray Memphis R., Dow & S. Central R. Louis, Receivers, 40 Fed. 426; Co. v. St. Alderson on T. 525-526. juris- But whether the regarded be as §§ defect dictional, arising out are authorities comity, all agreed Tardy’s waived. See Smith on Receivers,

n Messrs. F. De Journel and Sidney ap- M. Ehrman for pellees. delivered the opinion Court.

Mr. Justice Stone appellant brought Superior suit in the Court of County, for the surrender California, San Francisco of land money cancellation a deed and to recover re- Noyes, acting ceived a receiver appellee under the *3 Alaska appointment court, deposited by and him of bank, with as appellee rents derived the land con- veyed and proceeds the sale of part it. The made conveyance by appellant receivers, prede- in the appellee cessors office of Noyes,--appointed by the Court for the District District of Alaska. Relief sought ground on the that the conveyance had been pro-, cured, The cause by duress. was removed to the United States District Court California, northern and trial in in a that resulted plaintiff. court decree'’for the- On ap- Court, peal the Circuit of'Appeals decree was re- that ground versed on the suit was barred laches. 689. The case comes on appeal. to this Court Code, 241, Jud. Act February 13, before § jurisdiction of the District Court was chal- lenged the Circuit Court of nor Appeals; is chal- lenged petition here. The for removal from the state court to the Court, District to remand the- motion made and the latter, denied in are not shown in the record. They were from the omitted made transcript appeal on up v,WELLS FARGO

BARNETTE NAT. BANK. .441 Opinion of the Court. of Appeals, to the Circuit Court because the' had Equity under 75 of the stipulated so Rule Rules then (226 23) Appendix p. relating force U. the reduc tion and on suits in preparation transcripts appeals It therefore equity. affirmatively appear does not sought, the removal to the District Court was bill, allowed and sustained. But an examination set record, which is forth shows that the purpose the suit was to recover land and funds then- in charge receiver of a court in Alaska, which was created authority laws of Congress and derived its powers from those laws. Such a suit was removable under 28§ of the Judicial supplemented by Code as the amendment of 33 Act of 39 Stat. August 23, 1916, c. Hustis, 882, 887-9; Matarazzo v. see Texas Board Cox, Co. v. v. Peirce, right Commissioners 90 Fed. 764. The alleged to recover grew out of transactions the plaintiff between and the receivers territory within the of Alaska with reference-to land Alaska, located all of which the acting receivers were virtue of authority conferred Hornsby, them as officers of the Alaska court. Rouse v. 588, 590. all apparent As this is from the face bill, here, and as the removal is not we challenged re presumption indulged think should be rightly taken, moval was and that the Court had District jurisdiction. charge of a receiver recognize property

We by which he was appointed in the of the court custody *4 acting, general under which he is and that as rule .a other' cannot entertain a suit the receiver to re- courts except by such leave the court of property, cover his Karatz, 262 Bonding Lion Co. v. appointment. that, after shortly 88-89. But the record this shows the begun, suit was court Alaska expressly authorized in the suit and appear the receiver to to make defense ' OCTOBER TERM, Opinion of 270 U. Court. and present a counterclaim in it. This equiv was the full alent of granting leave to bring the suit. That order was made shortly after, instead of before the suit was begun, not material. McCarter, Jerome v.

734, 737; Board Peirce, Commissioners supra, 765-6. plaintiff The contended and the District Court held that, even if there had been no such leave, the suit could be maintained under the legislative permission given in 66 of the Code; Judicial but we need not consider that question.

On January 5, 1911, the ap- District Court for Alaska pointed receivers for the Washington-Alaska Bank, a banking Nevada in Fair- corporation engaged business banks, The appellant Alaska. husband of the had been president, manager director and bank its In February, 1911, the then re- incorporation. appellant, California, in Los went with her siding Angeles, husband in the liquidation to assist to Fairbanks bank’s its and affairs business, being then in the hands of assess later, receivers. Six weeks after consultation with attorney, appellant and her their husband tendered of depositors bank, one of the as the un- trustee conveying a deed real estate the hus- paid depositors, real estate which was the .separate band .and property in Alaska. located appellant, Acceptance of the deed it criminal prosecution refused was and enforcement of liability might of the'husband his civil Later waived. a similar deed ten- prejudiced rejected receivers and them for the dered same and her husband then filed a Appellant verified reasons. which the in the court .in receivership pend- petition the receivers be directed praying accept ing, the desire expressing to prevent deed the com- trust legal proceedings against them by the re- mencement in, depositors all the pay of.-the bank full. ceivers order authorizing receivers, made court *5 NAT. BANK. FARGO v. WELLS BARNETTE Opinion of the Court. deed the trusts created such, accept to the and administer with their duties receivers. by it, connection executed her husband by appellant deed was by acknowledged separately on March and was that acknowledgment stating appellant, the certificate “ to voluntarily she did not wish she executed it and that prop- of the retract The receivers took possession it.” the Alaska; they successor, ap- and later their erty proceeds the rents from it and the pellee, Noyes, received land; dispute and the fund now of sale the some of the trust. from the administration derived conveyance, appel- executing Within week after the retúrned Alaska her husband and departed lant from with years Los More than three Angeles. to her at residence instituted 16, 1914, on she suit later, November receivers, set aside the con- Alaska court on the that it veyance separate property of her brought The case was not by had been duress. procured on August 1, more than trial, and, years, after three mean- non-suit, having to a she consented present suit. time, July 24, 1918, commenced appellant’s convey- The district court below held that had duress. This conclusion was procured ance been findings that, during period appellant’s' based ” suggestions sojourn Alaska, threats (which appears it were made two women her, made bank and others who are unidenti- of the depositors hus- kidnaped children would be and her fied,) that her subjected violence; personal herself to- that band and in her. these threats aroused under the circumstances children, of her her husband safety fear for reasonable induced the execution deed to the herself, and receivers. objections pressed upon turn us

We aside was insufficient establish duress and the evidence that suggested nor pleading proof neither Opinion, of. TJ.S. the Court. receivers or the great .majority of the creditors bank were to or aware duress. See alleged Snow, 145 Fairbanks v. Mass. 153. Nor need we con- *6 any sider of except the numerous defenses interposed, delay in her acquiescence appellant deed, her circumstances, rights, which, her are asserting decisive the case. cause of action

Appellant’s upon founded is'necessarily óf the rightful the assertion exercise of the effective her power conveyance, disaffirm which arose as soon as compulsion alleged relieved from the she was' on, induced relied duress. Acts duress such as is'here on the mind short of actual operates only and falls law, are not void in are voidable compulsion, but physical him induced at the election of whose act it. only, was Davis, Connolly, 43, 46; Andrews v. Miller Willetts, 485, 494; Colo. Eberstein v. 134 Ill. Snow, supra; Miller v. Lumber 98 Mich. Fairbanks v. Forrest, P. If & R. R. Co. v. N. Y. 83. 163; Oregon here, appellant, duress as soon as she was there was in a operation, position from its either to relieved conveyance or to allow to undis- her it stand disaffirm rights. the free and formal of her disposition turbed as disaffirm, might If was to have been her choice evi- timely brought by any other by suit action denced to those her who be affected. disclosing purpose would requirement subject she was In that situation legal election to disaffirm and to recall the that an equity legal of an which has to alter consequences operated act to others, them must be exercised by transferring rights cited, v. Connolly Andrews and other cases promptly. requirement applied how is cases supra, show this a like principle application has where- the duress. Tribilcock, Assignee, Upton, is founded fraud. right McNeil, 45, 54, 55; Wheeler v. 91 U. Aronson, 187

Blank BARNETTE v. WELLS FARGO NAT. BANK. Opinion of the Court. reasonably of action court promptness What meas- depend large circumstances' must exact these such dis- the' of time lapse effect without upon ure sought rights whose are affirmance, upon those taking intention appellant formed the divested. The immediately her conveyance to set aside proceedings intention Los 1911. This Angeles, April, her return to she until years undisclosed for more than three remained November, district suit court of Alaska brought threats, of violence There no evidence that 1914'. operated they renewed after she left or that Alaska, she exercise of her when prompt election prevent husband Angeles. her in Los Her had returned to home out charges growing trial criminal brought bank, of his administration the affairs of the December, were concluded in proceedings criminal *7 until from During April, 1911, or in 1913. the period in represented who was November, appellant, aware attorney fact, counsel- and by by Alaska of receivers, appellee Noyes, the and later the none the knowledge have had of any whom shown to the of duress, engaged the administration alleged were order conveyance, trust under an by appellant’s, created petition. During on her of the court obtained re- she made no to advise the court the period, effort intention to dis- the-alleged of duress or of her ceivers affirm her deed.' given deed, grantees of

By the the the provisions Novem- property of sale of the after power unrestricted might provided it was that sales ber,. 1914, expressly but the united meantime the action of be made the the the proceeds paid and grantors grantees, provisions Appel- the deed. grantees under trust receiver appellee with her husband and the joined lant plots separate her the' property, in a sale of one of being attorney executed in her behalf her conveyance OCTOBER TERM, JJ.,

BRANDEIS dissenting-; 270 TJ.S. in .fact proceed? and the being, paid appellee, November, 1911. This unexplained'delay of .than more three years exercising appellant’s right dis- asserted affirm her conveyance, appellee while the pre- his decessors were left in 'ignorance her of intention to .assert it, and her affirmative action-as well,' in the recognizing of her validity deed and the authority appellee of under if, establish conclusively her her election to allbw unrevoked, conveyance to stand as the arid effective agency rights. for disposition her

The case requires one which us consider the effect of mere delay bringing suit to enforce claim appellees notice, consequent oppor had with the tunity to protect themselves, in measure, some front the prejudice which-would otherwise fesult mere lapse time, Doran, in Simmons Creek Coal Co. v. and Southern S. Co. v. Bogart, U. upon relied by appellant. do -Nor have we to With complainant’s where situation did not-mislead or silence defendants, Railway as in prejudice Northern Pacific Boyd, Co. v. U. also relied upon. Here very existence appellant’s right depends upon timely exercise of her election to the deed. disaffirm Delay necessarily its exercise was her prejudicial grantees; they rely were entitled to and and act did her authority deed, and their defense under and embar impeded the circumstances was necessarily lapse during period rassed time in which they ignorance appellant’s were left claim.

The judgment Appeals the Circuit Court of is .

Affirmedt Me. Justice with whom Me. Brandéis, San- Justice' concurs, dissenting.

ford In my opinion, decree of the Circuit Court Ap- peals should reversed with directions to District the. FARGO

BARNETTE WELLS NAT. BANK. JJ., dissenting. Brandéis.and . to remand case to the court, Court state or this Court should, discretion, its order that copies of all papers in the Court relating District to the removal here, be filed may that we courts so determine whether the lower jurisdiction. Compare exercised order properly 1, issued February Whitney 1926, v. California. The determination of the of the courts jurisdiction below is one of the functions of this Court. essential Cochran v. Montgomery County, 199 U. S. error, On every writ of funda appeal, the first and question court, mental is that of of this jurisdiction, first, This and then of court from which the record comes. question itself, the court is bound to ask answer without, even when respect not suggested, otherwise Coldwater Mansfield, to the relation of the to it.” Michigan Swan, & Lake S. Ry. Co. v. U. Willard, 220

Chicago, U. Burlington Quincy Co. Parkers City S. R. R. v. Baltimore & Ohio affirmatively burg, 268 U. must S. 35. record show jurisdiction not suffi depends, “the fact on It is which argumentatively jurisdiction may cient that be inferred Keene, 8 Pet. its averments.” Brown v. Davies, jurisdic If the S. 273, 163 U. Hanford record, tional in the affirmatively facts somewhere appear need, plead the case merely be dismissed because Cease, ings fail to show them. Robertson v. Donaldson,

646, 648; Realty Holding Co. v. 398, 400. Amendment of the to conform pleadings in the the record be allowed either facts shown Larney, U. in this Court. Norton lower courts or Court, consists The record before this which documents, unprinted 742 printed pages and several Ap the Court of was before everything includes whole record before the Court. District but not peals, *9 JJ.,, dissenting. and Sanford, Brandéis What parts were omitted does not appear. The essential n jurisdictional facts are shown in the or pleadings not in elsewhere the record.

The record‘in this Court shows a bill of complaint to a conveyance of real estate in Alaska annulled on ground and duress to have paid the plaintiff moneys alleged have been deposited the Wells Fargo Nevada Bank National of San Francisco one Noyes, claiming act as receiver of a Nevada corporation. alleged These funds are proceeds be the of a part “ complaint real estate. The Superior entitled Court of the State of California.” The record shows next an answer, filed in the federal court for the northern district of the State. All subsequent proceedings prior to the appeal were had in that federal court. From these facts, it may merely surmised that the suit was begun in court and state before answer removed to the federal court. But record does not contain the for petition nor removal, any of the other papers ordinarily incident thereto; There is no reference tó a removal in any order decree, any opinion, the evidence, nor in any other paper entry. or clerk’s complaint did not allege An citizenship plaintiff. amendment to the com- filed plaint, federal court years- later, two states has at all plaintiff times been a citizen of Cali- The defendants fornia. named are the Fargo Wells Bank Noyes; one the latter being joined and both individ- ” ually appointed and as receiver an lawfully Alaska court a Nevada corporation. allegation No citizenship discloses the of Noyes. It does not appear anywhere the record whether ancillary receiver the Nevada corporation was appointed ever California.

A questions multitude of remain unanswered this state of the record. Thus, we are left to conjecture whether all the defendants joined the petition for re- BARNETTE v. WELLS FARGO NAT. BANK. JJ., dissenting. Brandéis

móval1, not, if whom removal sought2; was sought, whether that ground removal in law good substantiated'by whether was the facts *10 record3; what court removal was appearing action the and the sought4; respective what court took; whether, indeed, there was a proper petition for removal filed time.5 On this record it to me seems jurisdiction that this Court is without and that lower Hegler Faulkner, federal courts were also. v. 127 U. S. City, 139, 482. As stated in West 6 Wall. 142: v. Aurora “ It fatal removal equally is to the supposed right cause, un- presents only fragment the record by reference to other matters not sent intelligible except through explanations from the State court up. counsel.” jurisdiction There are no favor of the presumptions Smith, Ex parte of the courts of 'United States.” 1 Compare 56; v. 151 v. Oswego Township, U. S. Wilson Hanrick 192; Chicago, 153 Hanrick, U. S. v. Rock Island & Co. 245, 248; Martin, 178 Gableman v. Peoria, U. S. Decatur & Evansville 335, 337; Mayor y. Co., 179 U. S. Independent v. R Steam-Boat 248; 775, 779; 115 Marrs v. 102 Fed. Co., Felton, U. S. Yarnell v. 161, 162; 104 Felton, Fed. Scott v. 112 Choctaw, Co., O. & R.G. 180; 553; Fed. Miller v. Mars Nat. 116 Fed. Bank, Le Heffel 75; 140 finger Choctaw, Co., v. Fed. & G. R. O. Consolidated Inde (2d) 491. 7 Cross, v. Fed. Dist. School pendent 2 Compare 99; 106 Bives, Bacon v. U. S. Trust Co. v. Salem Manu 189; 264 U. S. Turk v. Illinois Central Co., Finance facturers’ 218 Fed. 315. Co., R. R. 3 Compare Woolridge M’Kenna, 650, 677-678; Mayer Fed. v. 8 v. 41 Denver, Co., Fed. v. T. & Ft. R. W. Gates Iron Works Pepper Yarnell v. 104 163. Felton, & But see 114 U. Hart, v. Canal Claiborne Streets R. Co. S. R. 654, 660. 4 Compare Noble v. Ass'n, Massachusetts Ben. 5 Compare Peoples 256; Manning Bank 102 U. S. Calhoun, Amy, Parkersburg Prager, First Bank Nat. Fed. 689. 100569° —26-29 (cid:127) 270 U. S. JJ., dissenting.

Brandéis Grove, 101 U. 455, 456; Society Bible merely jurisdiction not assume that there was mayWe it, apparently have exercised two lower courts because that documents protest.6 may without We not assume under by agreement from the record appellate omitted requirement jurisdiction. Rule showed Equity cannot affirmatively shown be jurisdictional facts Parker, 156 U. S. Compare Hudson v. with. dispensed conjecture not indulge 284. We If invoked. we were jurisdiction so, fragmentary appears to do liberty at sustaining jurisdic our preclude us would record before the ground not be sustained on could tion. Jurisdiction citizenship citizenship, because diversity disclosed. Jurisdiction could defendant principal Code, Judicial under as amended not be sustained *11 532, a 23, 1916, 399, of c. 39 Stat. August Act by the “ the United an officer the courts of against civil suit under color any or on account act done States for s such duties as performance hi office or his 882, Hustis, Fed. v. 256 Matarazzo compare officer,” sought removal was to show that nothing there is because requirements that the statute ground, this Anderson, Ex 3 with, compare parte Woods complied Matthews, 22 6, or that there was Fed. 124; Rothschild v. ” between the officer has done a connection causal Maryland See v. authority. official his asserted not could be sustained ante, p. 9. Jurisdiction Soper, ancillary, because proceeding on the ground in Cali appointed Alaska bank receiver of the no there, administered Mer- fornia, being nor its estate 6 although prevent dis party by' no can his conduct that, It is true discovered, jurisdiction is when this Court the absence missal 81, irregularity the removal Ormsby, 141 mere Parker v. U. S. brought might originally been the suit may be waived where Baggs Martin, 179 the federal court. v. U. S. 451 FARGO NAT. BANK. BARNETTE v. WELLS JJ., dissenting. 438 Brandéis Co., 39 Fed. Ry. & Ohio v. Kanawha Trust Co. cantile Co., 99 Package & v. Star Cash Greene 337; compare furnishes of the suit character ancillary and the 656; Fed. Fed. 525. Herrick, 93 removal. Gilmore v. for ground no 618-620; 149 McAuley, U. Byers v. Compare Bldg. & Loan Savings North American Shinney v. sustained on could 97 Jurisdiction Fed. . . . under “arising is one ground'that the.case the mere fact States,” because of the United laws cor of a state receiver is the Noyes reputed defendant a a federal court is not appointed poration Evansville & Peoria, Decatur Gableman v. removal.7 way other no The record shows Co., 179 U. S. Ry. United the laws under arises in which case fed any controversy as to There is no actual States. Iron v. Pond Co. Niles Bement Compare eral matter. 77, 82. Local No. Moulders’ Union 7 v.Co. in Texas & Following of this Court the decision state from a right of removal upheld the Cox, 145 appointed corporation receiver of a federal court of a suit qualification courts, neglectful of the court, some lower a federal gen incorporation, permitted removal federal implicit fact of \in appointed by courts. Central federal erally against receivers in suits 523, 528; Ry. Co., Fed. Tennessee, & 59 V. G. Trust Co. v. East 311; Fed. 417; Felton, 73 Whitcomb, Fed. Landers Jewett v. Chicago, Bend, 921; R. I. City Lund v. Keihl South corporation) however, federal Ry. Co., (involving, 78 Fed. P. 764; Pitkin v. Peirce, ; Board Commissioners Winters Cowen, Herrick, 93 Fed. 91 Fed. Gilmore v. 322, 328. Lutz, Miss. Drake, Pendleton v. *12 the dis and.also courts, recognizing limitation Other lower Spokane v. respect banks, tinction with to receivers of national Grant Bank, in suits permit Nat. 47 Fed. refused to removal jurisdiction equity appointed only general receivers exercise of the upon occasion courts, would of federal -confident that this Court 33; v. Shearing Mans uphold Trumbull, limitation. 75 Fed. v. 775; Receivers Chesapeake, Co.’s Felton, 102 Ohio & S. R. Fed. W. R. holding Ky. Court, after 101 This Smith, Bausman v . 452 1925. ’ n n ' 270 U. S. of the Case.

Statement COLLECTOR, COPPER EDWARDS, CHILE

COMPANY. THE OP TO CIRCUIT FOR CERTIORARI COURT APPEALS THE.

(cid:127) CIRCUIT. SECOND Argued 10, 11, March 1926. Decided March No.

1; business,” im- carrying doing respect The tax “with on or corporations by Acts of

posed domestic Revenue 1916 and corporation organized purpose applicable to for the- held a holding mining sell- corporation, issuing the stock a and of pro- ing by pledge furnishing bonds secured the stock and carry it to on its ceeds from time to time to other enable main- work, holding company consisting of other activities of the lending the taining office, voting shares, electing directors, when through company a on call loans proceeds of-bonds trust mining collecting inter- company, not needed for advances to the P. 455. .etc. est, cor- single can carried on without two a business not be 2. Where pay must taking part it, acts, under above porations each, a tax. P. (2d) 1014, Fed.' reversed. Appeals decree of Circuit Court of Certiorari Fed. (294 Court decree the District affirmed Dixon, 113, 114, order of the Circuit mere question,” held appointing did create a Court a receiver Federal Peoria, Ry. Co., & Evansville Gavblemanv. Decatur solely the'ground the receiver could be allowed

that no removal appointment case and having from a federal court. That secured his recognized consistently been established since the limitations it Rogers, 987; People York Pepper 128 Fed. New and followed. Wrightsville 156; Co., Hardware F. R. & F. v. Bleecker St. Smith, Co., Mfg. Fed. Dale v. v. Woodenware Co. Marquette Foundry v. Pere Brake Shoe Co. American State, Frost, 623, 647. The 113 Wis. R. R. Court, 179 U. S. stated -decision, as there principle of the underlying legislative policy the'enact 338, gives effect avowed 552, as amended 3, 1887, 373, 24 c. Stat. of Mar. Act ment Code. 66, Judicial re-enacted