law of her domicil in California. No allusion whatever was made by the supreme court to the treaty between Hawaii and the United States. The decisions of the supreme court of Hawaii are reported,-McGrew v. McGrew, 9 Hawaiian Rep. 475, 10 Hawaiian Rep. 600; Carter v. Mutual L. Ins. Co. 10 Hawaiian Rep. 117, 559, 562. In the opinion on the last hearing, December 16, 1896, the court observed: "The company, not having brought the widow into court by interpleader, is in the unfortunate position of being subjected to two suits,-one by the administrator here, the other by the widow in California. It must now rely on the assumption that the two courts will take the same view of the law." set up, and was denied by the highest state court, it was not regarded important that it was not so set up or claimed in the declaration as to be decided in passing on a demurrer, and was first presented by a motion to set aside the judgment on the demurrer, and its denial assigned as error on appeal to the highest court of the state. Meyer v. Richmond, 172 U. S. 82, 43 L. ed. 374, 19 Sup. Ct. Rep. 106. Nor is it material that the claim of Federal right was first asserted in a motion to set aside the verdict and grant a new trial, where the case was one in which no provision was made for filing an answer, and the claim was again asserted in the assignment of errors filed in the highest state court. Chicago, B. & Q. K. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. And see also San José Land & Water Co. v. San José Ranch Co. 189 U. S. 177, 47 L. ed. 765, 23 Sup. Ct. Rep. 487; Manley v. Park, 187 U. S. 547, 47 L. ed. 296, 23 Sup. Ct. Rep. 208; St. Louis Consol. Coal Co. v. Illinois, 185 U. S. 203, 46 L. ed. 872, 22 Sup. Ct. Rep. 616; Carter v. Bennett, 15 How. 354, 14 L. ed. 727, supra, II. a, 2. A question as to the repugnancy of a state statute to the Federal Constitution, first raised in the supreme court of a state, and there decided, not on the ground that it was not raised in the lower court, but upon its merits is not raised too late for the purpose of review on writ of error from the Supreme Court of the United States. Sully v. American Nat. Bank, 178 U. S. 289, 44 L. ed. 1072, 20 Sup. Ct. Rep. 935. The court also considered the point that the statute in question, § 1331 of the Civil Code, was repealed by implication by the married women's act of 1888. But it held that the section was not inconsistent with that act, and that it might "be regarded as a special provision for a penalty or forfeiture in case of a divorce for the offense of adultery." And the court said that it was glad to know that the section had been repealed. Section 1331 was repealed May 12, 1896 (Hawaii Laws 1896, p. 70, act 24). Article 8 of the treaty between the United States and the Kingdom of Hawaii was as follows: "The contracting parties engage, in regard to the personal privileges, that the cit izens of the United States of America shall state court. Arrowsmith v. Harmoning, 118 U. S. 194, 30 L. ed. 243, 6 Sup. Ct. Rep. 1023. So, where exemption from suit as consul of a foreign power was first claimed in an assignment of errors in the highest state court, the Supreme Court of the United States will not refuse to take jurisdiction of a writ of error to the state court, where the record shows no objection founded on the omission to plead the exemption in the lower court, and the only answer to the assignment of error is that the fact of such consulship does not appear in the record. Davis v. Packard, 7 Pet. 276, 8 L. ed. 684. A claim that the admission in evidence of the previous testimony of an absent witness was in violation of the 14th Amendment to the Federal Constitution was not specially set up at the proper time and in the proper way to confer jurisdiction on the Supreme Court of the United States to review the judgment of the highest court of a state by an assignment of error in that court, which was not considered by it presumably because no such question had been raised in the trial court. Jacobi v. Alabama, 187 U. S. 133, 47 L. ed. 106, 23 Sup. Ct. Rep. 48. The Federal question must be raised before final decision in the highest state court of the state. Winona & St. P. Land Co. v. Minnesota, 159 U. S. 540, 40 L. ed. 252, 16 Sup. Ct. Rep. 88; Simmerman v. Nebraska, 116 U. S. 54, 29 L. ed. 535. 6 Sup. Ct. Rep. 278. It is not in time when first presented on an application for rehearing in the highest state court (Poydras de la Lande v. Louisiana. 18 How. 192, 15 L. ed. 350; Steines v. Franklin County, 14 Wall. 15, 20 L. ed. 846; Susquehanna Boom Co. v. West Branch Boom Co. 110 U. S. 57, 28 L. ed. 69, 3 Sup. Ct. Rep. 438: Simmerman v. Nebraska, 116 U. S. 54, 29 L. 278; ed. 535, 6 Sup. Ct. Rep. Bushnell V. Crooke Min. & Smelting Co. 148 U. S. 682. 37 L. ed. 610, 13 Sup. Ct. Rep. 771: Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874; Sayward v. Denny, 158 U. S. 180, A Federal question was not set up too late to confer jurisdiction on the Supreme Court of the United States of a writ of error to a state court, where it was raised by the assignments of error in the state supreme court, and was considered and decided by a commission appointed to aid that court in the discharge of its duties, and the judgment of such commission was, for the reasons stated in its report, affirmed by the state supreme court. Farmers' & M. Ins. Co. v. Dobney, 189 U. S. 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Miller v. 301, 47 L. ed. 821, 23 Sup. Ct. Rep. 565. And where a judgment of the highest court of a state necessarily involves a denial of rights claimed under the Constitution of the United States, the Supreme Court of the United States has jurisdiction, although the question was presented for the first time in the highest Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Capital Nat. Bank v. First Nat. Bank, 172 U. S. 425, 43 L. ed. 502, 19 Sup. Ct. Rep. 202; Turner v. Richardson, 180 U. S. 87, 45 L. ed. 438, 21 Sup. Ct. Rep. 295; Eastern Bldg. & L. Asso. v. Welling, 181 U. S. 47, 45 L. ed. 739, 21 Sup. Ct. Rep. 531; Weber 1 enjoy in the dominions of His Majesty, the them, and dispose of the same at will, payKing of the Hawaiian islands, and the sub-ing to the profit of the respective governjects of His said Majesty in the United States of America, that they shall have free and undoubted right to travel and to reside in the states of the two high contracting parties, subject to the same precautions of police which are practised towards the subjects or citizens of the most favored nations. They shall be entitled to occupy dwellings and warehouses, and to dispose of their personal property of every kind and description, and their heirs or representatives, being subjects or citizens of the other contracting party, shall succeed to their personal goods, whether by testament or ab intestato; and may take possession thereof, either by themselves or by others acting for v. Rogan, 188 U. S. 10, 47 L. ed. 363, 23 Sup. Ct. Rep. 263), at least where such petition for rehearing is overruled without any determination or allusion to the alleged Federal question (Pim v. St. Louis, 165 U. S. 273, 41 L. ed. 714, 17 Sup. Ct. Rep. 322); or the question presented therein was not dealt with by the state court as a Federal question (Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730); or where the state court refused to consider the question because it had not sooner been raised (Chappell v. Bradshaw, 128 U. S. 132, 32 L. ed. 369, 9 Sup. Ct. Rep. 40). In Louisiana, as elsewhere, a claim of a Federal right, title, privilege, or immunity is not in time when first suggested on such an application, although under the laws of that state a judgment of the highest court does not become final until a specified time from the rendering of the judgment, within which time a dissatisfied party may apply for a rehearing; as it does not follow that new grounds for decision will be allowed to be presented, or will be considered on such application, and the general rule is otherwise. Texas & P. R. Co. v. Southern P. Co. 137 U. S. 48, 34 L. ed. 614, 11 Sup. Ct. Rep. 10. But where the supreme court of a state entertains a petition for rehearing after it has filed its opinion, but before it has been certified down, and proceeds to discuss the Federal questions raised therein, such questions cannot be regarded as raised too late for the purpose of a writ of error from the Supreme Court of the United States. Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730. And the actual decision of a Federal question in denying a rehearing is sufficient to give jurisdiction on writ of error to a state court from the Supreme Court of the United States, although an attempt to raise that question for the first time on motion for rehearing is usually too late. Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 46 L. ed. 673, 22 Sup. Ct. Rep. 446. ments such dues only as the inhabitants of the country wherein the said goods are shall be subject to pay in like cases. And in case of the absence of the heir and representative such care shall be taken of the said goods as would be taken of the goods of a native of the same country in like case, until the lawful owner may take measures for receiv ing them. And if a question should arise among several claimants as to which of them said goods belonged, the same shall be decided finally by the laws and judges of the land wherein the said goods are. Where, on the decease of any person holding real estate within the territories of one party, such real estate would, by the laws of the yet, if the misconception of the constitutional provision relied on is very obvious, the Federal Supreme Court will not retain the cause for further argument, but will avail itself of the general rule ordinarily applicable, and dismiss the writ of error. Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224. The denial by a division of the supreme court of Missouri of a right under Federal law which was first claimed on a motion to transfer the cause to the court in bank after judgment and after an application for rehearing had been overruled is not a decision against a right specially set up or claimed at the proper time. Duncan v. Missouri, 152 U. S. 377, 38 L. ed. 485, 14 Sup. Ct. Rep. 570; Bobb v. Jamison, 155 U. S. 416, 39 L. ed. 206, 15 Sup. Ct. Rep. 357. Where the supreme court of the state renders judgment without any suggestion that a Federal question was presented, and no such question was presented in the petition for rehearing, the denial of a subsequent motion that oral argument of the case on its merits be permitted, which does not necessarily involve a decision of a Federal question, does not give the Supreme Court of the United States jurisdiction of a writ of error to the denial. Butler v. Gage, 138 U. S. 52, 34 L. ed. 869, 11 Sup. Ct. Rep. 235. An attempt to raise, for the first time, a Federal question on a motion in an inferior state court to quash a fieri facias issued in pursuance of a decree of the highest court of the state stands upon no better footing than if attempted on a petition for rehearing. Loeber v. Schroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934. the supreme A Federal question is not set up in a state court soon enough to sustain a writ of error from the Supreme Court of the United States. where it is first presented by new pleas filed after the case was decided by court of the state and remanded to the lower court for a new trial, and the supreme court on a second appeal refused to reopen the questions involved on the first hearing to let in the Federal defense presented by the new pleas. Yazoo & M. Valley R. Co. v. Adams, 180 U. S. 1, 45 L. ed. 395, 21 Sup. Ct. Rep. 240. Even if an exception to the general rule that the privilege or immunity under the Federal Constitution is claimed too late when first set up in the state court on petition for rehearing A Federal question raised after the case has can, however, be based on the ground that the been decided on the merits by the highest court state court permitted argument on the question of a state and remanded to a lower court mereand delivered an opinion and decision upon it,ly for an accounting is raised too late, for the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject," etc. 9 Stat. at L. 977. Messrs. Julien T. Davies, Frederic D. McKenney, Edward Lyman Short, William H. Chickering, and Warren Gregory for plaintiff in error. Messrs. J. Hubley Ashton, Richard Bayne, and H. G. Platt for defendant in error. of law or equity of a state in which a decision in the suit could be had, in three classes of cases: The first class was where the validity of a treaty or.statute of, or an authority exercised under, the United States, was drawn in question, and the decision was against their validity; the second was where the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, was drawn in question, and the decision was Fuller, Ch. J., delivered the opinion of in favor of their validity; and the third the court: was "or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, Appellate jurisdiction was conferred on this court by the 25th section of the judiciary act of 1789, over final judgments and decrees in any suit in the highest court purpose of a writ of error to the Supreme | review in the Supreme Court of the United Court of the United States, where such question does not arise on the accounting itself, but by a motion for leave to amend the answer to set up a defense which might have been originally made. Union Mut. L. Ins. Co. v. Kirchoff, 169 U. S. 103, 42 L. ed. 677, 18 Sup. Ct. Rep. 260. States. Chapman v. Goodnow, 123 U. S. 540, And where the state court disposes of the case upon non-Federal grounds sufficient to support its judgment, it is obvious that the Supreme Court of the United States cannot re III. The decision of the Federal question by the view such judgment on the theory that a deci state court. a. Necessity of decision. The judgment or decree of a state court cannot be re-examined in the Supreme Court of the United States simply because a Federal question was presented to the state court for determination. That court must also decide it. Crowell v. Randell, 10 Pet. 368, 9 L. ed. 458; M'Kinney v. Carroll, 12 Pet. 66, 9 L. ed. 1002; Commercial Bank v. Buckingham, 5 How. 317, 12 L. ed. 169; Taylor v. Morton, 2 Black, 481, 17 L. ed. 277; Hurley v. Street, 14 Wall. 85, 20 L. ed. 786; Caperton v. Bowyer, 14 Wall. 216, 20 L. ed. 882; Detroit City R. Co. v. Guthard, 114 U. S. 133, 29 L. ed. 118, 5 Sup. Ct. Rep. 811; Israel v. Arthur, 152 U. S. 355, 38 L. ed. 474, 14 Sup. Ct. Rep. 583. b. Essential requisites to decision. 1. In general. A decision of the Federal question in terms is not essential. If a decision of such question was necessarily involved in the judgment rendered, it is not a matter of importance that the state court avoided all reference to the question. Chapman v. Goodnow, 123 U. S. 540, 31 L. ed. 235, 8 Sup. Ct. Rep. 211; Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 28 L. ed. 1084, 5 Sup. Ct. Rep. 681; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; St. Louis Consol. Coal Co. v. Illinois, 185 U. S. 203, 46 L. ed. 872, 22 Sup. Ct. Rep. 616. But if the decision of a Federal question in a state court is rendered unnecessary by the view which that court properly takes of the rest of the case within the scope of the pleadings, the judgment is not open to sion of the Federal question was necessarily involved. McManus v. O'Sullivan, 91 U. S. 578, 23 L. ed. 390; Crossley v. New Orleans, 108 U. S. 105, 27 L. ed. 667. 2 Sup. Ct. Rep. 300; Adams County v. Burlington & M. R. Co. 112 U. S. 123, 28 L. ed. 678, 5 Sup. Ct. Rep. 77: Jacks v. Helena, 115 U. S. 288, 29 L. ed. 392, 6 Sup. Ct. Rep. 39; Hopkins v. McLure, 133 U. S. 380, 33 L. ed. 660, 10 Sup. Ct. Rep. 407; Henderson Bridge Co. v. Henderson, 141 U. S. 679, 35 L. ed. 900, 12 Sup. Ct. Rep. 114; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; Delaware City, S. & P. S. B. Nav. Co. v. Reybold, 142 U. S. 636, 35 L. ed. 1141, 12 Sup. Ct. Rep. 290; Eustis v. Bolles, 150 U. S. 361. 37 L. ed. 1111, 14 Sup. Ct. Rep. 131; Haley v. Breeze. 144 U. S. 130. 36 L. ed. 373, 12 Sup. Ct. Rep. 836; Sherman v. Grinnell, 144 U. S. 198, 36 L. ed. 403, 12 Sup. Ct. Rep. 574; O'Neil v. Vermont, 144 U. S. 325, 36 L. ed. 453, 12 Sup. Ct. Rep. 693; Northern P. R. Co. v. Ellis, 144 U. S. 458, 36 L. ed. 504, 12 Sup. Ct. Rep. 724; California Powder Works v. Davis, 151 U. S. 389, 38 L. ed. 206, 14 Sup. Ct. Rep. 350; Michigan v. Flint & P. M. R. Co. 152 U. S. 363, 38 L. ed. 478, 14 Sup. Ct. Rep. 586; Connecticut ex rel. New York & N. E. R. Co. v. Woodruff, 153 U. S. 689, 38 L. ed. 869, 14 Sup. Ct. Rep. 176: Winter v. Montgomery, 156 U. S. 385, 39 L. ed. 460, 15 Sup. Ct. Rep. 649; Gillis v. Stinchfield, 159 U. S. 658, 40 L. ed. 295, 16 Sup. Ct. Rep. 131: Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389; Chemical Nat. Bank v. City Bank, 160 U. S. 646, 40 L. ed. 568, 16 Sup. Ct. Rep. 417; Wade v. Lawder, 165 U. S. 624, 41 L. ed. 851, 17 Sup. Ct. Rep 425; Electric Co. v. Dow, 166 U. S. 489, 41 L. ed. 1088. 17 Sup. Ct. Rep. 645: California Nat. Bank v. Thomas, 171 U. S. 441, 43 L. ed. 231, 19 Sup. Ct. Rep. 4; Capital Nat. Bank v. First Nat. Bank, 172 U. S. 425, 43 L. ed. 502. 19 Sup. Ct. Rep. 202; Chappell Chemical & Fertilizer Co. or exemption specially set up or claimed by | produced in § 709 of the Revised Statutes either party under such clause of the said (U. S. Comp. Stat. 1901, p. 575). The Constitution, treaty, statute, or commis- change from the drawing in question of the sion." 1 Stat. at L. 73, 85, chap. 20, § 25. construction of a clause of the Constitution, By the 2d section of the act of February or of a treaty, statute, or commission, to 5, 1867 (14 Stat. at L. 385, 386, chap. 28), the claim of a right under the Constitution, the original 25th section was re-enacted treaty, statute, commission, or authority, with certain changes, and, among others, emphasized the necessity that the right the words just quoted were made to read: must be specially set up and denied. "Or where any title, right, privilege, or im- In Baltimore & P. R. Co. v. Hopkins, 130 munity is claimed under the Constitution, U. S. 210, 32 L. ed. 908, 9 Sup. Ct. Rep. 503, or any treaty or statute of, or commission the distinction between the denial of validheld, or authority exercised under, the ity and the denial of a title, right, privUnited States, and the decision is against ilege, or immunity specially set up or the title, right, privilege, or immunity spe- claimed, is pointed out, as well as the discially set up or claimed by either party un-tinction between the construction of a statder such Constitution, treaty, statute, com- ute or the extent of an authority and the mission, or authority." And this was re- validity of a statute or of an authority. 14 Sup. Ct. Rep. 452. The power of the highest court of a state tc decide a controverted question of fact cannot be denied by the Supreme Court of the United States so as to sustain a writ of error, by excluding any other ground of decision than that which involves a Federal question. Chemical Nat. Bank v. City Bank, 160 U. S. 646, 40 L. ed. 568, 16 Sup. Ct. Rep. 417. v. Sulphur Mines Co. 172 U. S. 465, 43 L. ed. | court proceeds upon matter of fact only. Dow. 517, 19 Sup. Ct. Rep. 265; Remington Paper | er v. Richards, 151 U. S. 658, 38 L. ed. 305, Co. v. Watson, 173 U. S. 443, 43 L. ed. 762, 19 Sup. Ct. Rep. 456; Allen v. Southern P. R. Co. 173 U. S. 479, 43 L. ed. 775, 19 Sup. Ct. Rep. 518; Rae v. Homestead Loan & G. Co. 176 U. S. 121, 44 L. ed. 398, 20 Sup. Ct. Rep. 341; Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038. 20 Sup. Ct. Rep. 856; Hale v. Lewis, 181 U. S. 473. 45 L. ed. 959, 21 Sup. Ct. Rep. 677; Boughton v. American Exch. Nat. Bank, 104 U. S. 427, 26 L. ed. 765; Martin v. Thompson, 120 U. S. 376, 30 L. ed. 679, 7 Sup. Ct. Rep. 586; New York C. & H. R. R. Co. v. New York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 316. And this is true, even though the Supreme Court of the United States may think the position of the state court an unsound one. Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; De Saussure v. Gaillard, 127 U. S. 216, 32 L. ed. 125, 8 Sup. Ct. Rep. 1053. It may be well to note that, even though this does not conclusively appear to be the fact, yet, where the state court may properly have disposed of the case without deciding the Federal question, its judgment is not reviewable in the Supreme Court of the United States. For a discussion of this question see div. IV. in note to Hooker v. Los Angeles, post, In inquiring whether jurisdiction to review a decree of a state court may be declined because such decree may be sustainable on an independent non-Federal ground, the Supreme Court of the United States considers only the final action of the highest court of the state in disposing of the controversy, and is not concerned with the conclusions of the trial court, or of a department of such highest court. Allen v. Southern P. R. Co. 173 U. S. 479, 43 L. ed. 775, 19 Sup. Ct. Rep. 518. But the language used by the highest state court in its opinion is not conclusive upon this question; the real substance and effect of the decision will be inquired into and determined. McCullough v. Virginia, 172 U. S. 102, 43 L. ed. 382, 19 Sup. Ct. Rep. 134. The reasons against the exercise by the United States Supreme Court of its jurisdiction to review a judgment of a state court which rests on an independent ground of law not involving a Federal question are as strong, if not stronger, when the decision of the state And the objection that, because of the insur ficiency of the evidence, the jury in a state court could not have rendered a verdict on a count in the declaration which involved цо Federal question is not available to exclude the non-Federal ground of decision, where the bill of exceptions does not purport to contain all the evidence, and the attention of the trial court was not, at the time of giving the charge authorizing such a verdict, called to the want of any evidence which the charge assumed to have been before the jury. Delaware City, S. & P. S. B. Nav. Co. v. Reybold, 142 U. S. 336, 35 L. ed. 1141, 12 Sup. Ct. Rep. 290. The highest court of a state, in approving the affirmance of the judgment of a trial court by an intermediate appellate court, cannot be held to have decided against the claim of a plaintiff in error with which the trial court was not called upon to deal. Chemical Nat. Bank v. City Bank, 160 U. S. 646, 40 L. ed. 568, 16 Sup. Ct. Rep. 417. But in Arrowsmith v. Harmoning, 118 U. S. 194, 30 L. ed. 243, 6 Sup. Ct. Rep. 1023, it was held that a judgment of the supreme court of Ohio affirming a judgment of a district court necessarily involved the denial of a Federa right presented for the first time by an assignment of error in the state supreme court, averring that the district court, by affirming the judgment of a court of common pleas, deprived plaintiff in error of his property without due process of law contrary to the provisions of the Constitution of the United States, although the state supreme court took no notice of this assignment of error in its opinion. So, where the defendant claimed exemption from suit as a consul of a foreign power for the first time in an assignment of errors in the highest state court, to which assignment plaintiff rejoined that the record did not show that defendant was such consul, and the court, in affirming the judgment, recited that the Our jurisdiction of this writ of error is asserted under the third of the classes of cases enumerated in § 709 (U. S. Comp. Stat. 1901, p. 575), and it is thoroughly settled that, in order to maintain it, the right, title, privilege, or immunity relied on must not only be specially set up or claimed, but at the proper time and in the proper way. The proper way is by pleading, motion, exception, or other action, part, or being made part, of the record, showing that the claim was presented to the court. Loeb v. Columbia Twp. 179 U. S. 472, 481, 45 L. ed. 280, 286, 21 Sup. Ct. Rep. 174. It is not properly made when made for the first time in a petition for rehearing after judgment; or in the petition for writ of error; or in the briefs of counsel not made part of the record. Sayward v. Denny, 158 U. S. 180, 39 L. ed. 941, 15 Sup. Ct. Rep. 777; Zadig v. Baldwin, 166 U. S. 488, 41 L. ed. 1088, 17 Sup. Ct. Rep. 639. The assertion of the right must be made unmistakably, and not left to mere inference. F. G. Oxley Stare Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709. The proper time is in the trial court whenever that is required by the state practice, in accordance with which the highest court of a state will not revise the judgment of the court below on questions not therein raised. Spies v. Illinois, 123 U. S. 131, 31 L. ed. 80, 8 Sup. Ct. Rep. 21; Jacobi v. Alabama, 187 U. S. 133, 47 L. ed. 106, 23 Sup. Ct. Rep. 48; Layton v. Missouri, 187 U. S. 356, 47 L. ed. 214, 23 Sup. Ct. Rep. 137; Erie R. Co. v. Purdy, 185 U. S. 148, la petition for rehearing, which raises Fed46 L. ed. 847, 22 Sup. Ct. Rep. 605. causes assigned for error had been examined and understood, this was deciding against the privilege set up under the act of Congress giving the exemption. Davis v. Packard, 6 Pet. 41, 8 L. ed. 312. So, in Meyer v. Richmond, 172 U. S. 99, 43 L. ed. 381, 19 Sup. Ct. Rep. 106, where a Federal right was first set up on a second motion to vacate a judgment of the trial court sustaining a demurrer to the declaration, and was reasserted in the petition for writ of error from the highest state court, which rejected the petition by an order which recited that, having materially considered such petition, and seen and inspected the transcript of record, the court was of the opinion that the judgment was plainly right, this was held necessarily to amount to a decision against the right claimed. Fuller, Ch. J., and Gray, J.. dissented on the ground that the decision of the Federal question should not be imputed to the trial court, as it might have considered that the point was presented too late, and that the appellate court might have rested its decision upon the ground that the discretion of the court below should not be disturbed. Where the highest state court affirms the judgment of the court below because no transcript of record was filed in that court there has been no decision of a Federal question conferring jurisdiction on the United States. Matheson v. Branch Bank, 7 How. 260, 12 L. ed. 692. The dismissal of an appeal by a state court on the ground that it was prematurely taken disposes of no Federal question, and cannot be reviewed in the Supreme Court of the United States. Chappell Chemical & Fertilizer Co. v. Sulphur Mines Co. 172 U. S. 472, 43 L. ed. 520, 19 Sup. Ct. Rep. 268. A declaration by the supreme court of a state on a second appeal that the rights involved grow out of an alleged contract, and not by reason of anything done in a Federal court, does not amount to a disposition, on a second appeal, of a claim of Federal right based on the action of the Federal court which might have been, but was not, raised on the first appeal. Union Mut. L. Ins. Co. v. Kirchoff, 169 U. S. 103, 42 L. ed. 677, 18 Sup. Ct. Rep. 260. If the highest court of a state entertains eral questions, and decides them, that will A decision of a state court adverse to a claim of title founded upon a pre-emption entry, although rested on the ground that such entry was obtained by fraud, is reviewable in the Supreme Court of the United States as a decision against the validity of an authority exercised under the United States. Lytle v. Arkansas, 22 How. 193, 16 L. ed. 306. The mere fact that defendant in a negligence action in a state court was a receiver appointed by a Federal court does not render the judgment against him reviewable in the Supreme Court of the United States, as a denial of the validity of an authority exercised under the United States. Bausman v. Dixon, 173 U. S. 113, 43 L. ed. 633, 19 Sup. Ct. Rep. 316. A state court cannot be held to have decided against a Federal right based on an order of a Federal court appointing a receiver of a corporation, where its decision that such appointment was ineffectual to devest the control of the state court over the assets of such corporation, or defeat its right to enforce its judgment for an accounting and other relief sought in a suit which had been pending several years, and in which a receiver had been asked and direction therefor made by an appellate court on remanding the cause prior to the appointment of the Federal court, was rested on |