1201

INDEX.

[The references are to pages. The asterisk (*) indicates that the case has been reversed.]

ABATEMENT AND REVIVAL

  Page
The expiration of the charter of a corporation abates all suits then pending in its name 722
Suit is not abated by sole complainant parting with his interest pendente lite, but no further proceedings can be had until his assignee is made a party 832
Pendency of suit between same parties respecting the same subject-matter in a federal court in another state may be pleaded in abatement 503
But such plea must show that the court has jurisdiction 790
Where proceedings in bankruptcy are pleaded in abatement, all matters required to give jurisdiction must be averred 503
Action for infringement of patent survives 193
Case is not revived on death of party without order to that effect 193
The state statute limiting the time for the allowance of a continuance by an administrator (Civil Code Or. § 34) applies to actions in the federal courts 815
Where an executor voluntarily appears in the action, judgment may be given for or against him with the same effect as if brought in by sci. fa 815
ACCOUNT.
In an action upon an open account, plaintiff may give evidence of anv item of which defendant has had reasonable notice. 945
An account rendered is proper evidence before an auditor to whom a cause is referred to state the account 701
ACCOUNTING.
Bill to account does not lie on an executory contract where compensation for the breach can be had in damages 439
Equity will not sustain suit to compel settlement of partnership accounts under a government contract participated in by government agent 964
On a bill against a partner who has fraudulently suppressed books and falsified accounts, complainant will not be held to strict proof-Sufficiency of proof 31
ACCOUNTS STATED.
An account retained an unreasonable time without objection becomes an account stated, and bars a bill to account 439
An account current, received and not objected to within a reasonable time, will bear interest 407
An account current, received and kept without objection, except as to particular items, may still be surcharged and falsified as to other items 945
An account stated cannot be opened because an item of interest not illegal, which went into it, could not have been recovered by suit 407
ACTION.
Consolidation of actions on notes, though parties are the same in all, not ordered 619
ACKNOWLEDGMENT.
The presumption is that the person examined was of full age, until the contrary is shown 1032
ADMIRALTY.
Jurisdiction-In general.
Extends to actions ex contractu, quasi ex contractu, ex delicto, and quasi ex delicto 1161
Suits upon contracts regulated by the common law are “suits at common law,” within Const. Amend, art. 7, and not cognizable in admiralty 410
Admiralty jurisdiction is referred to in the constitution as it was restricted in England at time of revolution, and as exercised by state courts before adoption of constitution 410
A judgment against the master of a vessel, recovered in an action for wages in a common-law court, cannot be enforced in admiralty 68
—Persons and property.
Contracts of seamen for maritime services are governed by the maritime law, and enforceable in admiralty, (Act 1790) 410
Accounts for traffic and dealings between mater and mate not subjects of admiralty jurisdiction 115
—Waters and places.
Has jurisdiction over navigable waters, irrespective of the fact of a tide 255
The waters of the Welland canal, being used for international commerce, ore within American admiralty jurisdiction 255
—Affreightments; charter parties, etc.
Has jurisdiction of matters leading to a charter party or stipulations and representations not embraced therein 506
—Pilotage.
Has jurisdiction over action to recover half pilotage under state laws for services tendered and refused 764
—Repairs and supplies to vessel.
An account for provisions furnished the owner or commander of a vessel, or for articles for her use when not on a voyage or in a foreign port, is not within the admiralty jurisdiction either as a substantive claim or set-off 410
—Torts.
Admiralty will not entertain suits for merely nominal damages in cases of personal torts, not involving any other subject-matter 879
—Wharfage.
The liability for wharfage of an agent to whom a vessel is consigned, created by a state law, (Laws N. Y. 1873, p. 430,) is maritime in its character, and enforceable in admiralty1202 35
Procedure.
The proceeding in rem to enforce a lien for damages caused by a collision is not process, or a part of the lex fori 255
There is no maritime lien created by a general average loss, and admiralty has not jurisdiction in rem 1161
AFFIDAVITS.
May be sworn to before affiant's counsel, though wholly in his handwriting 101
In a suit in equity, sworn to before bill filed, must not be entitled in the suit 510
AFFREIGHTMENT.
See, also, “Admiralty;” “Bills of Lading;” “Charter-Parties;” “Shipping.”
“Going rate,” as to freight, means the last actual contract, or, where the rate varies, the average of the day 928
Damage to goods may be set up in defense to Suit for freight 1191
Burden of proof as to damage to goods 86
The value of goods at place of delivery, with interest from the day when they should have arrived, is the measure of damages for their loss. Anticipated business profits are not allowed 1097
ALIENS.
Ownership of real estate.
A state has power to give capacity to aliens to hold lands within it 1172
An act giving capacity to aliens “which shall have resided in the state two years” applies as well to future as to past residence 1172
Naturalization.
The word “armies,” as used in acts admitting enlisted aliens to citizenship, does not include “marines” 360
AMENDMENT.
A clerical error in the record may be amended after the term 868
Bill in equity amended to conform to proofs and admissions in answer, where subject-matter not changed 1033
The record of a cause, when made out and written in the record book, cannot be altered, except by order of the court 866
ANIMALS.
A whale killed and taken into complete possession is the property of the taker, who may maintain an action against one who subsequently finds it adrift, and, without knowledge of the title, appropriates it 966
APPEAL.
Jurisdiction on appeal.
Appeals are allowed to circuit court from decrees in admiralty in all cases where sum in dispute exceeds $50. (Act March 3. 1803) 266
Taking and perfecting.
Circuit court obtains jurisdiction on appeal by filing and serving notice of appeal, and not by filing of transcript 526
Time for filing transcript on appeal in the circuit court may be extended by consent of parties beyond statutory time 526
Hearing and determination. page
The appellee may continue the cause where the record is filed only a short time before the term 324
The hearing on appeal from the district court in admiralty is de novo, but, on questions of fact, burden is on appellant 266
Mere technical objections taken for first time in appellate court are unavailing 280
A decision on a question of fact, established with reasonable satisfaction, will not be disturbed 475
A decree of the district court, based wholly upon a question of fact, will not be reversed where the evidence raises only a doubt as to the fact 476
Circuit court, on appeal, cannot rehear a cause or admit a claim at a term subsequent to that in which the cause was finally decided 242
Bonds on appeal.
Sureties will be protected by the court when they have acted in good faith 1080
Appellant not absolutely bound by condition of bond on appeal to supreme court to pay amount of original judgment 682
In an action on appeal bond to supreme court, plaintiff must aver damages sustained by defendant's not making his plea good 682
ARBITRATION.
Where a reference in a pending suit is made without order of court, it can only be enforced by separate action 584
ARMY.
An enlisted minor, who has not been mustered into the service, nor received any rations or clothing, cannot be held in custody as a volunteer, either under the United States or Massachusetts statutes 577
ARREST.
A person arrested in one district for an offense committed in another, if not indicted nor committed by a commissioner, is entitled to an examination in the district in which he is arrested 363
The power to remove an accused from the district of his arrest to the one of trial is in the district judge, and not the circuit judge 363
A commitment for further examination is valid, as well as a commitment for trial 1015
A commitment in South Carolina may be valid without any examination of prisoner or state witnesses 1015
The constitutional rights of the prisoner to be confronted by witnesses, and to be represented by counsel, have reference to the trial only, and not to proceedings on commitment 1015
ASSIGNMENT FOR CREDITORS.
An assignment is void as to the firm property, as well as to the individual estate of the nonsi?ning members of the firm 1164
Creditors levying after, but not those levying before, expiration of time to file inventory and schedule, under the New York insolvent law, acquire a lien where the inventory, etc., is not filed within the time 1164
Sufficiency of inventory and schedule by assignors for benefit of creditors, under Laws N. Y. 1877, c. 466, and Laws 1878, c. 318 1164
ASSUMPSIT.
Trustee appropriating proceeds of trust property is liable in assumpsit 4761203
Where deed is without covenants, assumpsit will not lie for failure of consideration on complete failure of grantor's tide 518
An agreement to release a debtor upon his executing a deed is a good defense in assumpsit, the deed being executed 965
ATTACHMENT: GARNISHMENT, ETC.
To constitute attachment of personalty as against assignee in bankruptcy, officer must take actual possession 25
Assignment of the debt by defendant, with notice to garnishee before service of attachment, cannot be given in evidence on trial of issue of nulla bona. It must be specially pleaded 471
Government agent for payment of salaries and treasurer of the United States are public agents, and not liable as garnishees for employees salary 239
ATTORNEY AND CLIENT.
Warrant of attorney to appear is not necessary 728
A proctor in admiralty cannot release or compromise his client's debt without special authority, and an insufficient amount paid in settlement is a discharge pro tanto 1025
BAIL.
Not required in debt on bond with collateral condition 769
Cannot surrender their principal before a judge at chambers 1048
BANKRUPTCY.
Operation and effect of bankrupt laws: State laws.
A judgment confessed in contravention of the bankrupt act is void, though valid by the state laws 112
The assignee is not bound by proceedings against bankrupt to which he was not a party 100
A decree of foreclosure against one adjudicated a bankrupt, where his assignee was not made a party, will not extinguish the right of redemption, and a purchaser under sale by order of the bankruptcy court is entitled to redeem, notwithstanding title by possession and payment of taxes under state law 937
Assignee cannot have injunction against foreclosure in state court of mortgage against bankrupt where he appeared, and permitted the proceedings to final adjudication, and no injury is done thereby 212
Jurisdiction of courts.
The jurisdiction of federal courts in bankruptcy is exclusive in all matters arising under the bankrupt act 941
Nonresident, who has for six months preceding petition carried on business as agent and attorney for another within a certain district, may file his petition in such district 392
Where the allegation of residence within the district as the ground of jurisdiction is false as to one of the petitioning partners, the court is without any jurisdiction 1119
Register-Powers and duties.
The register's power is limited only by express exception in the bankruptcy act 668
He has power to direct a sale of debts and choses in action belonging to the estate if creditors do not object 668
He may, of his own motion, inquire into delays, and indicate steps for a speedy settlement 668
He may, at first meeting of creditors before election of assignee, postpone proof of any claim which he regards as doubtful 986
But, where claims objected to are clearly valid, he must apply to court 986
He has no power, against objection of parties, to require issues framed as to the re-examination of a claim until it appears that the claim ought to be expunged or diminished 63
Order made without objection cannot be revoked 63
On trial of charges against a register, the creditor may offer evidence to contradict the register as to facts called out by his examination 668
Commencement of proceedings-Voluntary bankruptcy.
The policy holders in a mutual life insurance company are “corporators,” with-in Rev. St. § 5122, requiring them to be notified of the meeting called to authorize proceedings 168
A receiver of a mutual insurance company, appointed by a state court, may move the bankruptcy court to set aside bankruptcy proceedings as unauthorized by the members, but cannot show that the company was solvent 168
To defeat a voluntary petition, (Act 1841,) creditors must show concealment of property. Proof of ownership in past years, or dissipation or dishonest squandering of property, is not sufficient 358
Purchases of bankrupt's property by members of his family at judicial sales do not raise a presumption of ownership, requiring the bankrupt to account therefor 358
—Schedule.
May be verified before a notary 359
Cannot be corrected on motion to record a resolution of composition, so as to show that the requisite number of creditors joined, but confirmation will be denied, with leave to renew motion 69
—Involuntary bankruptcy.
Owners of a planing mill contracted debts as traders, but discontinued that branch of the business a few months before committing an act of bankruptcy. Held, that they must he considered merchants as to such debts 527
It is not a valid objection to petition in invitum by creditor that his claim is not yet due 984
Act June 22, 1874, requiring petition to show certain number and amount of creditors joining, how far retroactive 848
A general unsecured creditor has a right to intervene and contest an adjudication in bankruptcy 231
—Acts of bankruptcy.
A preference in contemplation of bankruptcy, though coerced by creditor 100
A general mortgage to one creditor to hinder and delay others 527
A general assignment by a trader for the benefit of his creditors equally 868,984
A suspension of payment of commercial paper for 14 days, if availed of within six months of its continuance 537, 558
Effect of act of July 14, 1870 558
A fraudulent conveyance subsequent to a judgment lien on the property is no cause of bankruptcy. The remedy is in equity to set aside the conveyance 250
Concealment of debtor from creditors does not constitute an act of bankruptcy unless service of process is thereby prevented 858
A bond with warrant to confess judgment upon the eve and in contemplation of bankruptcy does not constitute an act of bankruptcy; unless the judgment and execution thereon were at the instance of the debtor1204 858
Adjudication.
Relates back to the filing of the original petition, and not to the time of an ancillary petition filed to correct an irregularity 1164
Objections not taken before adjudication considered waived 755
A decree declaring a corporation bankrupt cannot be impeached, after the lapse of a year, by a stockholder who had full knowledge of all the facts 572
Assignee-Appointment and removal.
An attorney for a creditor may be assignee of the bankrupt's estate 909
One member of a firm, on behalf of the firm, may execute a power of attorney authorizing him to vote for the firm in the choice of assignees 909
Property of bankrupt-What constitutes.
Crops planted by bankrupt after filing petition do not pass to the assignee 879
Bankrupt husband, who has insured his life for benefit of his wife, need not list the policy as assets 1166
Interest in the business of another, which the bankrupt conducts in his own name, receiving half of profits as compensation, is not property to be set out in the inventory 1170
Proof of indebtedness arising out of disposal of proceeds of such business 1170
A conveyance on condition of the payment of an annual sum to the grantor during life gives the grantee a title which will pass to his assignee 199
—Exemptions.
Under the provision permitting the exemption allowed by the state law “existing in the year 1871,” where there was a change in the law during the year the statute existing at the close of the year will control 351
The filing of a petition is an election to take the exemption allowed by the state law in force at the passage of the bankruptcy law 29
The homestead secured to the head of a family by the state law, though not ascertained and set out, does not pass to the assignee, and is not subject to the jurisdiction of the bankrupt court 1004
Right to homestead exemption is not lost by delay to claim it until assignee applies for order to sell 963
—Custody.
In the separate bankruptcy of one member of a solvent firm, an account will be ordered, and the joint property left with the solvent partners; but otherwise where the firm is insolvent 263
—Liens.
Property held by purchasers from a bankrupt in fraud of the bankrupt act is subject to the lien of a judgment against the bankrupt 325
Property held by the bankrupt after the rendition of a judgment against him, but before commencement of bankruptcy proceedings, is subject to the lien of the judgment 325
An execution levied previous to an act of bankruptcy, if real and bona fide, gives a lien 858
Assignee taking property from trustee, who held under a void assignment for creditors, takes subject to the liens of judgment creditors accruing subsequently to the assignment, and before the commencement of bankruptcy proceedings 1106
The question as to the validity of an execution lien on bankrupt's property attacked as a preference cannot be settled by petition and answer, but only by bill in equity or suit at law 559
The remedy to have an unrecorded mortgage of the bankrupt's property declared and enforced as a prior lien is by action or suit, and not by petition 951
—Sale by assignee.
The district court for Louisiana can authorize the sale of real estate surrendered by bankrupts, free and discharged of all mortgage debts 941
A claim against the wife of a bankrupt for payments made by him when insolvent, on a policy for the benefit of his wife, may be sold by the assignee, and will pass to the purchaser a contingent right in the proceeds of the policy 1166
Proof of debts.
Damages for a tort are not provable until they have been assessed 362
A note given before the bankruptcy of the maker, but maturing after, and taken up by the indorser before, final certificate, may be proved 480
Rent for that portion of a term under a lease not expired before the adjudication not provable 376
Holder of a bill of exchange may prove his debt against all the parties, or against one, and proceed at law against the others 289
Attaching creditor who pays liens upon the attached goods, to save his attachment, must be repaid the same by the assignee of the debtor 433
Where a member of a firm, which is general agent of a corporation, misappropriates funds thereof to the uses of the firm, which is known by the firm, both are liable, and proof may be made against both estates 1044
Creditor holding security from a third person may prove his debt without surrendering it, but otherwise with security from the bankrupt 289
Holder of a draft may prove for whole amount against drawer's estates, though he has been paid in part by acceptor whom he has released, and who in turn released drawer 1045
Surety paying debt of bankrupt principal can only prove the difference between the debt and the amount realized on securities held by him as indemnity 508
Pledgee of notes, held to secure a debt in a smaller amount, may prove them against the maker's estate to their full amount, and receive dividends to the extent of his debt, though they are invalid in the hands of the pledgor 381
Recovery by assignee against a holder of the bankrupt's note, who has taken a preference, does not revive his right to prove the note 270
Where the holder of a note has forfeited his claim against the estate of the bankrupt maker, the guarantors have no right to prove it 270
Seizure of part of shipment of goods under right of stoppage in transitu does not prevent proof of claim as to those delivered 1191
Power of attorney to prove debt in bankruptcy need not be acknowledged 854
Creditor cannot prove by an attorney testifying upon information and belief, unless he is prevented from giving the affidavit, as provided by Act March 2, 1867, § 22 854
Deposition by officer of creditor corporation, made after proof of claim, allowed to be filed 1046
A bankrupt may testify to support a claim by his wife against the estate. (Act Pa. April 15, 1869) 11201205
Where, on a reference to take proof of a claim, it appears that the claim has already been proven, and not objected to, the reference should not proceed 507
Payment of debts: Priority: Dividends.
Creditors holding bank bills of a state bank adjudged a bankrupt are entitled to interest from the date of adjudication. (Reversing 666) 667
A creditor collecting money for his debtor, and failing to pay it over, has no priority over other creditors 647
The fact that the drawee had funds of the drawer when he refused to accept the draft will not give the holder priority over other creditors of bankrupt drawer 647
Senior mortgagee on sale of property in bankruptcy is entitled to payment of his mortgage in full, together with costs and expenses 956
Money paid to procure release of dower in mortgaged premises should be apportioned between the mortgagees 956
Landlord has no lien in Alabama for rent accruing after bankruptcy of tenant 376
The right to distrain for rent is a “lien,” within the bankrupt act; and in Mississippi the landlord is entitled to a preference for rent out of proceeds of sale of property on demised premises, subject to his attachment (Reversing 233) 234
Assignee may withhold dividend to creditor who is also debtor to a member of the bankrupt firm until determination of suit to recover the debt 104
Examination of bankrupt.
The filing of specifications in opposition to a discharge is not necessary prerequisite to making of order for examination of bankrupt or other persons 1042
A bankrupt may be compelled to appear with his books before the register for examination as to a composition 6
Costs: Fees: Disbursements.
Registers' fees-Taxation and allowance 208
Where a petition to establish a right to payment in full has assumed the form of a regular suit, costs and a docket fee will be taxed 657
Bookkeeper of bankrupt not entitled to compensation for making schedules while in employ of marshal, and in receipt of his usual salary 855
Claim of bankrupt for extraordinary services cannot be allowed by the court but may be allowed by creditors 855
Discharge-Proceedings to obtain.
Where there are no assets, bankrupt cannot be discharged, unless he applies after the expiration of sixty days and within one year from the adjudication 910
A creditor may consent to a discharge by his attorney in fact or counsel in open court 560
—Opposition: Acts barring.
Creditor who has proved his claim may, except as limited by rule 24, file specifications of the grounds of his opposition 1042
Creditors who have not proved their claims until after the day fixed for showing cause against a discharge can then object to the discharge only on the ground of fraud 560
Creditors executing releases under terms of voluntary assignment are to be considered as preferred over other creditors, with in meaning of provision denying discharge 65
Discharge not refused unless fraud, willful concealment of property, etc., or facts from which they are plainly deduced, clearly appear 755
Specifications alleging concealment of property should specify the property, and that the omissions from the schedules were willful, fraudulent or negligent 1175
It is no answer to a charge of concealment that the property belonged of right to assignees under an earlier assignment, under the state insolvent laws 1107
A bankrupt having actual possession of joint estate and joint books of account must disclose them to his separate assignees. 1107
Discharge not refused for failure to keep proper books of account, unless the fact is clearly shown 1012
Bankrupt need not affirmatively show that he has kept proper books of account etc 755
Books from which a competent acountant could ascertain the bankrupt's condition are sufficient 956
—Scope and effect.
A discharge does not operate on debts created by fraud, and an objection to a discharge on the ground that the debt was so created is not valid 1004
Prohibited and fraudulent transfers.
Section 35 of act of 1867 applies both to transactions with a creditor or one under liability for the bankrupt, and with a purchaser not a creditor or under such liability 1127
“Contemplation of bankruptcy” means insolvency 15
“Contemplation of bankruptcy” means contemplation of inability to continue business, not of applying for benefit of bankrupt law 100
A preference is not a payment of creditor in the ordinary course of business, or under threats of suit 15
If the necessary effect of an act is to prefer one creditor, the intent to prefer is presumed, though other motives co-operated to induce the act 1012
A sale by the bankrupt not in the ordinary and usual course of business is only presumptively fraudulent, and the presumption may be rebutted 283
Transfer of whole stock and book accounts to one creditor, three weeks before filing petition, held a preference, though made under threat of legal process 1012
A sale out of the usual course of business of all one's stock in trade to a person with knowledge of the seller's insolvency is prima facie void, and a second purchaser with knowledge has no better title 285
Purchase by second vendee not fraudulent unless he knew or had reasonable cause to know of facts rendering the first sale fraudulent. Knowledge that the sale to the first vendee was of the entire stock of the seller not sufficient 283
An assignment in trust, by an insolvent, for creditors who will accept 60 per cent, of their claims, is void at common law and under the bankruptcy act 1106
A general assignment for distribution among all creditors equally is not void, but voidable only at the suit of the assignee 868
Confession of judgment is not fraudulent unless intended as a preference, and given in contemplation of bankruptcy 100
Where the debtor, in order to give a preference, allows his property to be taken on execution issued on a judgment against him, the transaction is void 559
The allowance of a judgment in favor of a brother by an insolvent debtor, to the exclusion of all other creditors, held a preference 437
The taking of sawed lumber, in settlement of a claim on a conditional sale of logs to an insolvent mill owner, in excess of the claim, creates a fraudulent preference 373
Payments made mala fide to a debtor after petition in bankruptcy filed against him are void as against assignee 2801206
Payments, etc., by one knowing himself to be insolvent, are not in contemplation of bankruptcy if he fully expected to continue business and retrieve his losses 100
Payments by husband on policy on his life for benefit of wife after he becomes insolvent are fraudulent, and may be recovered from wife out of proceeds of policy, when paid, with interest 1166
A secret arrangement by one of the creditors, entering into a composition for an advantage over other creditors, is fraudulent, and a payment made thereunder may be recovered by the assignee subsequently appointed, though the composition never became binding 1120
Transfer by brother to sister, whose money he had taken and invested without any account, held fraudulent 976
A sale to a creditor 13 months before filing petition, if bona fide and without knowledge of contemplated bankruptcy, though it may prevent discharge, is valid as to the creditor 15
An attachment by a creditor of the property of his insolvent debtor is not a fraud upon the bankrupt act 433
Chattel mortgage for a present consideration, made more than 60 days prior to bankruptcy, but not filed for record until within that time, is valid 830
Payment of note at maturity by insolvent maker, without knowledge or procurement of accommodation indorsers, is not fraudulent 1139
An indorsement upon a chattel mortgage, extending its lien to other chattels, made in fraud of the bankrupt act, is ineffectual for any purpose 433
After payment on account of one item of a claim proved, creditor cannot divide his claim so as to avoid in part the assignee's claim of preference by such payment 855
Prohibited and fraudulent transfers-Suit by assignee.
Assignee of one partner can, in the interest of firm creditors, recover sums paid out of the firm's funds in fraud of their rights. 1120
An assignment by one member of firm of individual property for benefit of individual creditors, with directions to distribute the balance among partnership creditors, may be set aside at the suit of the assignee of the firm 882
Assignee may proceed to impeach bankrupt's conveyance as fraudulent, irrespective of condition of creditors' claims 807
The rights of the assignee to sue to set aside conveyance by bankrupt are not affected by Act June 22, 1874, when the adjudication of bankruptcy was passed theretofore 882
Secret preferences paid as inducements to signing composition deeds may be recovered either at law or in equity 1130,1132
Such preferences can be recovered by the debtor or by injured creditors, or by the assignee 1132
It is no defense to the action that the composition deed was invalid, because not signed by all the creditors, pursuant to its terms 1120,1132
The four-months limitation governs a transaction with a creditor, and the six-months limitation that with a general purchaser 283,1127
An action by the assignee of a firm to set aside an assignment by a member for the benefit of his individual creditors is not limited to four months 882
A declaration in an action by the assignee must state that the transaction was had within the prohibited time 1127
All transactions illegal or fraudulent by the common law, the statute law, or by rules of law, other than the special limitations in section 35. are governed by the limitation of two years 1127
Where assignee continues defense of suit, the estate is liable to expense thereof, if the creditors impliedly consented 292
The bankruptcy proceedings are admissible to show appointment as assignee 285
To annul a sale, the vendee must be shown to have had good reason to believe that the insolvent's intent was to evade the bankruptcy act 283
Arrangement with creditors: Compostion.
Committee appointed to assist trustee in management of estate may act by majority vote 1047
Amount of payment to counsel for services is discretionary with committee 1047
The trustees have no power to admit claims against the estate; such power is vested in the register 500
The approval of the committee cannot affect or cure positively unlawful applications of the fund, nor inequality of distribution 1047
Damages for a tort not assessed cannot be considered in ascertaining proportion of creditors voting for composition 362
Affidavit of husband that he had given his wife authority to vote in favor of a composition is a ratification and estoppel, validating the wife's act 362
Wards whose money has been loaned to a firm, from which their guardian, a member, took notes to himself as guardian, on coming of age, are entitled to vote in favor of a composition by the bankrupt firm 362
The confirmation of a composition, and the bankrupt's compliance therewith, suspend functions of assignee 208
A composition arranged and confirmed does not take the case out of the jurisdiction of the court 1085
The amount due from the assignee to the bankrupt after composition should be determined on special order 208
Debtor's default under composition does not entitle creditor to dissolution of injunction against his judgment, obtained pending bankruptcy proceedings 1085
BANKS.
Payment of check is prima facie evidence of funds 607, 741,742
A note deposited for collection and credited to depositor, is property of bank; and. on its bankruptcy, proceeds go to general creditors 657
The relation between a bank and its customer is not of a fiduciary character 657
The teller is not liable for losses during his absence 701
On the failure of a bank to pay specie, it may be forced into liquidation 624
Liability of stockholders of national bank is several, and a suit at law is the proper remedy to enforce a specific assessment ordered by the comptroller 382
Comptroller of currency, in winding up insolvent national bank, has authority to finally determine when a deficiency of assets exists 382
Special charter powers.
Congress has power to authorize the Bank of the United States to sue in the federal courts 728
The act incorporating the Bank of the United States confers the right to sue in the circuit courts, irrespective of their jurisdiction 726; contra, 692
Where the Bank of the United States recovers less than $500 in a suit in the circuit court, it cannot recover costs, and may be adjudged to pay all costs1207 728
The relation of a branch of the Bank of the United States to another branch or to the parent bank which has forwarded paper for collection is simply that of principal and agent 694
Affidavit of president of Bank of Columbia on an order for an execution-Form and contents 629
An order for an execution by the president of the Bank of Columbia is not a judgment 628
Execution issued on order of the president of the Bank of Columbia-Form and contents 628
The issuing of an execution by the Bank of Columbia is the commencement of the action in regard to the statute of limitations 643
The suit is discontinued by failure to prosecute the execution 628
The court will permit defendant upon return of execution to plead the statute of limitations 629,645
Bank of Alexandria may have its causes tried at the first term to which the writ was returnable 606,619
The Bank of Alexandria may, upon discounting notes, deduct the whole interest to become due 607
BILLS, NOTES, AND CHECKS.
What law governs.
Where bills are accepted, payable in London, on a promise to provide funds to meet them, the contract is governed by the law of England 407
A bill drawn and indorsed in one state, but payable in another, is governed by the law of the former as to the liability of the indorser, but by the place of payment as to the amount of interest 649
Nature and requisites.
Warrant issued by controller of city, whose payment is restricted to a particular fund, not regarded as bill of exchange 1075
Cashier's certificate of deposit for a sum named, payable at a certain time, to the order of the depositary, is a promissory note 229
Validity.
Trading corporations may, independently of statute, issue negotiable paper in the course of their business 1075
“Confederate Treasury Notes” are illegal because issued by organization of subjects in rebellion 378
A promissory note given in consideration of Confederate notes is void 378
The stipulation in a note for the payment of a reasonable attorney's fee on collection by action is valid, and binding on all indorsers 622
Acceptance.
A letter written within a reasonable time before or after the date of a bill of exchange, describing it, and promising to accept it, is a virtual acceptance 1064
Authority to draw, with an assurance of payment, is an acceptance to one who takes bill on the credit of such authority 1064
An accommodation acceptor of a bill of exchange is a surety as to. the drawer, but a principal as to the holder, although he knew the facts 289
A letter of credit held to be used within the terms of the agreement giving right to commissions, though bill issued thereunder was never presented 794
Indorsement and transfer.
The possessor of a negotiable instrument is prima facie a bona fide holder for value in the usual course of business, without notice of facts impugning its validity 622
Want of consideration in the making and indorsing of a note can be shown, against a remote party, only where he took with knowledge of such want between nearer parties 622
An accommodation indorser can show a want of consideration only as against the accommodated party 622,631
An indorsement, though for accommodation, is evidence of money had and received by the indorser 618
But otherwise where the indorser writes on the face of the bill, “credit the drawer.” 621
An accommodation indorsement in blank may be filled up at the trial by plaintiffs counsel 745
Plaintiff, who is not an indorsee, has no right at the trial to strike out the words of a special indorsement 726
Rights of indorsers, generally.
A parol agreement, made at the time a note is indorsed, cannot affect the indorser's rights under the law merchant 601
One discounting a note for the joint benefit of the maker and indorsers, though in unequal amounts, need not make demand and give notice to recover against indorsers 754
Holder of bill of exchange, after demand and notice, is not bound to active diligence 874
An indorser is bound by the usage of the local banks as to demand, notice, and protest, known to him at the time of indorsing 639,642
But not otherwise except upon his agreement 601
A blank indorsement does not discharge subsequent indorsers as such 622
Bank of Alexandria bound to make demand and give notice to charge indorser 621
Demand.
Where note is payable at a certain bank, need not be personal 679,727
At bank where payable, and which was holder, must be made, though maker had no funds to his credit 733
Must be made on the last day of grace 216
On the day after the expiration of the days of grace is in time, in the District of Columbia 618
But on last day of grace, after banking hours, is not too soon 684
Where maker of notes dies before maturity 750
May be made by notary's clerk 618
Notice.
An accommodation indorser is not entitled to notice unless he has actually sustained damages by its want 631
Agent to present a note for payment is not bound to give notice of dishonor to the indorser, but only to his principal, who in turn gives such notice 694
Due notice, as between any indorsers, is sufficient to charge such indorser in favor of all subsequent indorsers 694
The delivery of a note to a deputy notary is not per se notice to the notary who was indorser thereon 641
On the third day of grace, though after bank hours, held too soon 216
The next mail after protest held sufficient 229
If by mail, must be given on the last day of grace, where the mail does not close until six hours after the close of the bank 615
Mailed after closing of mail on day after last day of grace held too late 737
On day following last day of grace held in time 684
Where indorser dies intestate, notice left with his son at intestate's place of business, before appointment of administrator, held sufficient 6381208
By mail held not sufficient as to an indorser residing in the country where he had a house in town usually resorted to by him for business 639
Left in indorser's separate room, in a business house where he is a clerk, held sufficient 717
Left with a boarder at the same house with the indorser, with the request to hand it to him, held sufficient 699
Left at shop of indorser's son, though connected with his dwelling house, held not sufficient 690
Wrongly stating amount of note held ineffectual 615
A mistake in the recital of the date of the note will not invalidate 741
A verbal notice, on the day following the last day of grace, that payment had been demanded, and that the note would be-protested if not paid, is not sufficient 686
The waiver of objection as to want of may be after, as well as before, the laches 641
The receipt of cannot be inferred from an agreement by the indorser not to take advantage of the statute of limitations, and to authorize an attorney to docket a suit 690
Protest.
Where the drawer has no funds in the hands of the drawee, no protest or notice is necessary. 461
Justice of peace in Mississippi is ex officio notary public for purpose of protest and notice 229
A protest which does not state that the notary informed the indorser of demand and refusal is insufficient 618
Payment.
The rate of exchange is not exclusively regulated by the expense of transporting specie from one place to the other, but rather by the. current rates for drafts in specie 504
A landlord who also holds a note of his tenant with a deed of trust of personalty as security must apply the proceeds of such property distrained for rent to the note, as against an indorser 736
Discharge or release of indorser.
Indorser is discharged by holder's taking new security, and giving time to maker, without his consent 702
Agreement between the holder and drawer, which suspends the right of the holder to enforce payment, will discharge the indorser, for it suspends his rights 699
A contract to give time to the maker does not discharge the indorser unless it is valid and enforceable 501
After demand and notice, holder may give time to the maker, or take time note of indorser, without releasing subsequent indorser 685, 717
After demand and notice, a neglect to enforce security until it becomes inadequate by depreciation will not discharge the indorser 618
Maker, acting as agent for other parties to note in discounting it, may change date of maturity if agreed to by them 754
A representation by the holder of a note to the indorser that it has been paid will not discharge the indorser if he has not been injured thereby 501
Action-Bight of.
Bank of Alexandria could sue indorser without first bringing suit against maker 617
Where the drawer has no funds in the hands of the drawee, and the bill is not accepted, action may be brought before it is payable 461
A note may be surrendered and canceled, and a recovery had on the original consideration, if the declaration contains a count founded thereon 709
—Pleading.
In an action against the maker, it is not necessary to show a demand at the bank where the note is payable 690
Otherwise where action is against indorser 733
An indorsement to the cashier of a bank may be declared on as an indorsement to the bank 692
A note payable to a certain person, “cashier, or order,” may be declared on by the bank of which he was agent without an indorsement 709
The omission of the payee to show protest, or that it was not required, can only be taken advantage of by special demurrer 461
—Evidence.
Where the plaintiff bank's notary was the indorser, declarations of his son and deputy as to the giving of notice are inadmissible 641
The testimony of a notary that he demanded payment of a note on the third day of grace, and gave notice of nonpayment on the following day, is competent, although he cannot recollect the day of the month 685
BILLS OF LADING.
Act Pa. Sept. 24, 1806, making bills of lading negotiable, does not enable a wrongful taker to pass a good title 597
One who acquires bill of lading from rightful holder, though through his negligence, can pass good title to innocent purchaser 597
Purchasers of a bill of lading, who have reason to believe that the seller held it as security merely, acquire no better title 597
Lav days do not begin to run until the vessel has arrived at her place of discharge, and is ready to be unloaded 274
Running in a fog, in calm weather, upon a well-known cape, is proof of unseaworthiness, not rebutted by fact that vessel was new, and well built, rigged and manned, and in charge of a captain of reputed skill and experience 1097
Injury to millstones properly stowed, where cargo shifted on voyage through vessel being thrown on beam ends, is within exception of dangers of navigation 954
Dampness or sweating of hold, the ordinary accompaniment of the voyage, resulting not from tempestuous weather, but from occult atmospheric causes, is not a “peril of the seas.” 1048
“Dangers of the seas,” “dangers of navigation,” and “perils of the seas,” are convertible terms 1048
A carrier, shipping goods by a different vessel and at an earlier date than that specified, is liable for loss by shipwreck, notwithstanding exception of “accidents of the seas,” etc 1097
Failure of master to deliver cargo in accordance with terms of bill of lading renders vessel liable for agreed value less freight and charges 170
A provision that any extra expense of discharging is to be paid by the consignee makes him liable for such extra expenses as are necessarily incurred 954
A custom founded upon a constant departure from the terms of bills of lading used in the trade is not available to control such a bill of lading 1097
Custom of trade will control where it is doubtful whether injury is caused by excusable perils of seas, or by dangers for which carriers are responsible 1048
As between original parties, it is competent to show actual condition of goods at time of shipment 10481209
A bill of lading is conclusive to establish the articles shipped unless fraud or mistake is shown 323
Burden is on carrier to show that the damage was caused by the danger of the seas 1097,1191
BONDS.
A penal bond is not enforceable beyond the indemnity 660
Recovery on bond with penalty for performance of covenants must be limited to the penalty 722
BOTTOMRY: RESPONDENTIA.
Respondentia.
A bond to secure a pre-existing debt is valid 159
No fraud not participated in by the lender can affect the bond 159
The delivery to the lender of a bill of lading on the arrival of the vessel is equivalent to a direct consignment to him 159
The bond is not void because it was given and the loan made after the vessel sailed on the voyage risked 159
Rights of lender as to homeward cargo, how secured-Preference in United States. 159
The words “lost or not lost,” omitted, may be supplied by equivalent expressions 159
All the papers connected with the bond and shipment will be construed together. 159
CARRIERS.
See. also, “Affreightment;” “Bill of Lading;” “Shipping.”
May grant exclusive privilege for transaction of business on its vehicles, and eject a person transacting business without its consent 892
Must take adequate measures to protect cargo against a common and ordinary occurrence, which might have been foreseen 1191
Liable for loss of coin in a trunk with wearing apparel, though it had no notice, where the passenger pays for excess baggage 507
The liability as carrier continues after arrival of goods, notwithstanding restrictions in bill of lading, if the carrier fails to give notice of arrival 275
An express company which has limited its responsibility to ordinary care is not liable for a loss caused by the negligence of a railroad which carried its freight 650
CHAMPERTY; MAINTENANCE.
A cestui que trust may lawfully dispose of his trust estate, though his title is contested by the trustee 495
CHARITABLE USES.
The statutes of mortmain are in force in Maryland, but the statute of charitable uses is not 855
Devise in trust, to lay out $200 a year in wood, meal, and clothing, to be distributed among the poor and necessitous widows and orphans within the corporation of Georgetown, is void for uncertainty 855
CHARTER PARTIES.
A charter party to load at a certain place is, in contemplation of law, made at such place 539
All representations as to carrying capacity are merged in a charter party stating the vessel to be of certain tons burden 483
No action will lie for breach of verbal agreements occurring between the date of a charter party and its signing 770
A failure to proceed “with all possible dispatch” from a certain port to the port of loading gives claim for damages, but no right to avoid contract, where object of voyage not wholly frustrated 590
Vessel owners not bound to sign unqualified bills of lading for cargo until lawful claim of demurrage, which is a lien thereon, is satisfied; and for delays caused thereby charterer is liable 539
Under a guaranty on an assignment of a charter party that the vessel is first class, it is necessary that she be actually classified 351
A delay to classify such vessel, where no damage is set up when she is tendered as ready, for want of a classification, will not excuse performance by the transferee 351
“Rainy days,” as excepted from lay days for loading a cargo of grain, mean such rainy days as will prevent ioading with safety and convenience in the particular port 539
Where master fails to object to port as a “safe port,” owners cannot recover for injuries arising from its unsafeness 78
A vessel chartered “to load with a full cargo” of bamboo of certain size bundles, at a certain freight per bundle, may recover for a full load of the agreed size where those loaded were much larger 78
Where charterer absolutely refuses to accept vessel, owner need not keep her in readiness for delivery during ail the lay days 351
Demurrage allowed where shipper caused his own vessel to be loaded before a chartered vessel which was first ready 170
A suit on a charter party, signed by the master, to whom the charter money is to be paid, is properly brought in his name alone 483
A suit is properly brought in the name of the managing owners, who signed the charter party in good faith as owners 590
Computation of damages on breach of contract by transferee of charter party to perform its conditions 351
CHATTEL MORTGAGES.
Unrecorded chattel mortgage valid, as between the parties, although possession not taken 830
CHINESE
State statute prohibiting employment of Chinese by contractors upon public works held in conflict with the treaty with China, and void 472
CLERK OF COURT.
Entitled to commissions upon proceeds of interlocutory sales of prize paid into court 241
CLOUD ON TITLE.
Circuit court will entertain bill by one in prior possession, accompanied by title, to remove cloud upon title 1069
Bill alleging sefsin under state grant, and possession thereunder for seven years, is sufficient 10691210
A suit brought under the Iowa statute to quiet title is an equity suit 560
COLLISION.
Nature of the liability.
Exertions to avoid a collision will not relieve a vessel whose original wrongful maneuver made it inevitable 1179
“Inevitable accident” means one happening after due care and caution and a proper display of nautical skill 561
Rules of navigation.
Steamer departing from statutory regulations assumes all risks of misunderstandings 177
Pilot rules of supervising inspectors are controlled by Act 1804 177
The law of the river is established by usage to which navigators must conform 930
Navigators on the Ohio river must conform to usage that descending boat must keep in the current, and ascending boat to the right shore 930
Descending boat in approaching ascending boat on Ohio river must stop her engines, and float, leaving other boat to choose her course 930
General rules of navigation of Mississippi river and the law of Louisiana require descending steamboat to keep the middle of the river, and to allow an ascending boat to choose her course 1023
Sail vessels meeting.
A vessel sailing free, which mistakes the course of another closehauled, and causes a collision by luffing, will be held liable 227
A sail vessel is in fault for coming in stays across the bows of another sail vessel, which she has just passed 980
Steam vessel meeting sail vessel.
As between steamer and sail vessel, former is held to greater caution and vigilance, and must adopt necessary precautions to avoid collision 454
Sail vessel changing her course will be held in fault if steamer used all reasonable precaution to avoid collision 454
Sail vessel is justified in changing her tack when the circumstances render it expedient and proper 955
Burden of proof is on steamer to show fault in sail vessel 1179
Vessels moored, etc.
Wrecking vessels anchored over a wreck, and fastened together, are substantially but one vessel, and should exhibit but one light 232
Steamer lying to or at anchor at night or in fog must take precautions to warn approaching vessels 1091
Burden is on colliding vessel to show that vessel at anchor was at fault, or the collision inevitable 564
As against a vessel colliding with another moored at a pier, and unable to move, it is sufficient to aver that the former ran into the latter 4
River and harbor navigation.
Steamer running into harbor or through common thoroughfare must take extra precautions 1091
And in night, or in case of fog, must move with great circumspection, or lay to or anchor, according to danger 1091
Steamer navigating near piers, in violation of harbor regulations, liable for collision with steamer in proper track, taking due precaution 1094
Speed: Fogs.
Speed of 16 or 17 knots during dense fog, upon frequented track, grossly improper. 1095
Where fog is so dense that vessel cannot avoid another at anchor, it should not proceed 563
Sail vessel becalmed in fog not culpable for omitting to use foghorns or other warnings, which would not have been of any avail. (Reversing 1091) 1095
Lights, signals, etc.
No maritime usage requires merchant vessels constantly to carry lights 454
Lookouts.
Want of a lookout will not be excused unless it is clear that it did not contribute to the collision 183
Steamer in backing out of slip in maneuvering for landing is negligent in not having a lookout on after deck 562
Particular instances of collision.
Between vessels at anchor in a storm 1161
Between steamer backing out of slip, swinging with tide, and ferryboat making adjoining slip 562
Between longboat hanging under bark's counter and barge breaking loose from pier by force of ice floe 253
Between vessel lying at end of pier, with stern projecting into ferry slip, and ferryboat making landing, carried by tide against it 564
Between ferryboat on foggy morning and brig anchored near track, in violation of ordinance 563
Between towboat and wrecking vessels anchored over wreck, and exhibiting wrong light 232
Between tow and tug of another tow, in the Kills 183
Between schooner and steam propeller in Long Island sound 266
Procedure.
Where a collision is joint act of two vessels, they may be joined as defendants; but otherwise where distinct acts of collision are charged, without privity 102
The appointment of nautical assessors, in collision cases, approved 875
Desertion without cause of vessel injured in collision may be considered as tending to show consciousness of fault 177
Where evidence leaves it open to reasonable doubt as to which party was in fault, the loss must be sustained by the one upon whom it has fallen 1058
Rule of damages.
Personal liability of owners of vessel is measured by value of vessel immediately before collision and freight pending, and they are not exempted by its loss 875
Expenses of raising injured boat, of repairs, and for loss of time allowed 930
Jury not bound to give interest 930
Interest, at 6 per cent., on sum paid for repairs, allowed 565
To recover demurrage, loss of service and damages by such loss must be shown 565
Demurrage will be allowed where the vessel, while undergoing repairs by the owners of the colliding vessel, was offered a charter which the master in good faith refused to accept, because having no knowledge of when she would be ready, though he did not inform the claimants 567
Burden is on claimant to show that the making of repairs to the injured vessel was to be in full satisfaction of damages 567
Libelant entitled to full amount of damages, though he has received partial indemnity from underwriters 255
Owner of vessel sunk in middle of Long Island sound not bound to attempt to save property from the wreck 762
Division of damages.
Rule of equal contribution applied where vessels are mutually in fault 1091,10951211
Where “both vessels are in fault, and only one injured, she may recover half damages and full costs 565
Where collision between two tows resulted from negligence of both tugs, and, on libel against one, opportunity given to make the other a party is not embraced, only half damages will be decreed 177, 183
A schooner admitting that she broke adrift from her tug because of her own defective hawser, is alone liable for collision with a vessel moored 4
The report of a commissioner in a case of mutual fault of a certain sum as “due to the libelant” will be amended so as to read “as the damages sustained by libelant.” 565
Costs.
Libelant entitled to costs, though his vessel was equally in fault, and damages are apportioned 232, 565
Review.
A decree for damages for collision in favor of several libelants should be for the gross sum. so as to bring it within the jurisdictional amount for appeal 252
CONFISCATION.
Under Act N. Y. 1778, estates forfeited for treason are not sold free from incumbrances. But otherwise as to Act N. Y. 1783 1104
CONSTITUTIONAL LAW.
Act March 26, 1814, § 14, providing that a majority in value of creditors may discharge an insolvent debtor for seven years, is unconstitutional 744
The admission of an attorney to practice is not a contract, and an act declaring a forfeiture is not invalid as impairing the obligation of a contract 1043
The right of an attorney to practice his profession is his property, and an act (Jan. 24, 1865) declaring a forfeiture of such property for offenses not so punishable when committed is ex post facto and void 1043
A statute of limitations, relating only to the remedy, and not to the obligation of contracts, though affecting existing rights, is not unconstitutional 811
A law regulating the issue of executions on judgments previously rendered, affects the remedy merely, and is not unconstitutional 707
Unconstitutional law no justification 71
CONTEMPT.
Creditor enforcing execution on state court judgment, in defiance of injunction of bankruptcy court, in which debtor has filed voluntary petition, is guilty of contempt 96
CONTRACTS.
A legislative act adopting certain school text-books, and providing that they shall be exclusively used by the schools, does not constitute a contract with the publishers, nor authorize state agents to contract with them 580
Note made on Sunday not void 911
Confederate treasury notes are unlawful currency, and cannot form a legal consideration to support a contract 678
The addition of the words “in gold,” in a contract to pay a certain sum, will be treated as surplusage 483
Nonperformance of stipulation in mining lease to commence operations by a specified time does not work a forfeiture, but gives right of action 810
Where covenants are mutually dependent, neither party can sue without having offered to perform or showing an excuse for for not doing so 768
In such case plaintiff cannot show partial performance under a general averment of performance 768
CONVERSION: TROVER.
Measure of damages for the conversion of a whale 966
COPYRIGHT.
An author is one who, by his own intellectual labor, produces an arrangement or compilation new in itself 195
A publication of revised rules of court is not a new edition of a previous publication of the rules before revision 759
Sale of book prior to deposit of copy of title-page will defeat copyright, as actual publication is presumed from a sale 478
Deposit of title-page, publication of notice, and delivery of copy of book, as provided by law, (Feb. 3, 1831,) are indispensable conditions 478
Where title-page was deposited in 1846, a notice stating entry as 1847 is fatal 478
A compiler of books must not copy results of another compiler's labor, but must resort to original sources of information 759
In printing court rules, it is an infringement to copy, from an annotated edition of such rules, citation of authorities contained in such annotations 759
Case, and not trespass, is the proper form of remedy to recover damages for violation of copyright 195
On motion for injunction, the affidavit of defendant is competent evidence against the oath of plaintiffs in the bill 478
Where an infringement is palpable, a provisional injunction will not be refused if not attended with serious injury 759
CORPORATIONS.
Due organization, in compliance with the statute, will be presumed 709
Where the charter reserves unconditional power to alter or repeal, the legislature may act arbitrarily; but otherwise where reservation is made for “misuse or abuse.” 570
A contract entered into with the incorporators for the company before its incorporation, but not perfected until afterwards, is in effect a contract with the company 709
Change in charter, from “life and accident” insurance company to “fire, marine, and inland insurance,” discharges nonas-senting subscribers to stock 26
Forfeiture of stock for nonpayment of call defeats right to recover on note for previous unpaid assessment 26
A bylaw prohibiting a transfer of stock by one indebted to the corporation is not in violation of the Missouri law 310
An unpaid subscription for which the subscriber's notes have been taken is a “debt,” within the meaning of the by-law 310
The officers of a corporation cannot, as against creditors, relieve a subscriber from his unpaid subscription 310
Preferred stock certificates issued by a railroad company, construed as to the conflicting rights of holders of common and preferred stock to net earnings 371
Officer of corporation making transfer of stock, under authority of an assignment, acts as agent of assignor, and his laches are not chargeable to corporation 310
A decree against stockholders for a pro rata contribution to pay the debts of the company is several, and action will lie thereon against one stockholder1212 624
Bill by stockholders to impeach judgment against corporation dismissed without prejudice 95
Stockholders may come in as parties to suit against company to be relieved from fraud perpetrated by officers of company in transaction in question 1079
Individual bankruptcy of a stockholder and officer of a corporation does not incapacitate him to act as such, though by-laws require officers to be stockholders 187
Acceptance of an official bond of a bank officer can only be proven by the bank's record of the proceedings 691
Corporation may sue under its corporate name and style, and not necessarily by attorney 728
COSTS.
Where both parties except to commissioners' report in a collision case 565
Not allowed for illegible depositions 253
Not allowed if action is dismissed for want of jurisdiction 648
Not awarded on affirmance where both parties appeal 183
COURTS.
In general.
Government departments or agents, seeking to execute a law in an unconstitutional manner, as by taking private property for public use without making compensation as provided by law, may be restrained 245
Judicial power of United States.
A state legislature cannot suspend process in the federal courts as to its citizens 306
Jurisdiction of federal courts not derived from common law 410
Comparative authority of federal and state courts: Process.
There is no concurrent jurisdiction in rem in admiralty cases between the courts of the United States and of the several states 10
The admiralty and maritime jurisdiction of the federal courts is exclusive of the state courts save as to the common-law remedy, which is. by action, and not by proceeding in rem 10
An execution issued out of a state court is a lien, from its delivery to the sheriff, on surplus proceeds in a marshal's hands under prior process from the federal court. 1059
Federal courts-Jurisdiction in general.
Federal court will retain jurisdiction of action, once acquired, to give remedy to all intervening and conflicting rights 957
—Grounds of jurisdiction.
Citizenship of one party in District of Columbia cannot create a case of diverse citizenship 886
A corporation is not within the meaning of the constitutional provision giving jurisdiction in cases of diversity of citizenship 692
A corporation cannot sue in the circuit court on the ground of diversity of citizenship, if any member is a citizen of the state with defendant 648
The words “civil suit,” as used in section 11 of the judiciary act, do not embrace admiralty proceedings, and a libel may be filed against a foreign corporation, and property within the district attached to compel appearance 76; contra, 80
Conveyances made merely for the purpose of giving federal courts jurisdiction are ineffectual for that purpose 886
The rule that federal courts have no jurisdiction of controversies between citizens of the same states does not apply to a suit suit by an assignee in bankruptcy 112
A creditor's bill, filed to obtain satisfaction of a judgment at law rendered in the same court, is not an original action, irrespective of parties 298
A mere “declaration of intention” by an alien to become a citizen is not sufficient to prevent his being a “foreign citizen or subject” within the constitutional provision giving jurisdiction to the federal courts 423
The citizenship of a person not served with process, who is a joint promisor, must appear in the declaration 784
If a joint promisor, not served with process, be a citizen of the same state with plaintiff, the court has no jurisdiction 784
The circuit court has jurisdiction of an action of debt on a judgment obtained in a state court by a citizen of another state 905
The circuit court has jurisdiction of a bill in equity by a judgment creditor against citizens of different states, to set aside conveyances by the judgment debtor as in fraud of creditors, although the ground of the judgment was a negotiable chose in action, on which a suit could not have been maintained in such court 1143
Union Pacific Railroad Company, under its charter, may sue and be sued in the circuit court of the United States for the district of Nebraska, without reference to citizenship 1043
An averment of citizenship equivalent in import to a direct allegation is sufficient to give jurisdiction 1071
—Circuit courts.
Have no jurisdiction except such as is expressly granted by congress 728
Circuit court of district other than that of bankruptcy proceedings has jurisdiction of cross bill by assignee to redeem mortgage property of which it is not deprived by sale of interest by assignee pendente lite 832
The concurrent jurisdiction conferred on the circuit court by the bankrupt act (1867, § 2) does not include an action to collect a simple debt-Its scope 314
—District courts.
Have original jurisdiction of all cases and controversies between third persons and an assignee in bankruptcy, as such. 314
—Administration of state laws and decisions.
Decision of state court as to character of negotiable paper does not constitute a rule of decision for federal courts 229
Circuit court, in aid of its general chancery powers, may enforce right given by state law 1069
Such court may remove a cloud on title as defined by state laws 1069
A state court's construction of a state statute forms a rule of decision for the federal court 707, 811
State laws in force prior to Dec. 1, 1873, are rules of decision in federal courts as to the competency of witnesses. (Rev. St. § 858.) 1120
—Procedure.
Where there are several defendants residing in different districts of same state. (Act May 4, 1858.) 280
Rule of state court requiring term notice, not adopted by federal court, is not obligatory on it 1064
The examination of an adverse party as a witness, before trial, as provided by state law, not followed by federal court 1178
Territorial courts.
Causes of a federal character pending in supreme court of territory of Colorado at time of admission as state may be heard and decided in federal courts 1025
Local courts.
Levy of a foreign attachment (in Ohio) gives jurisdiction 7391213
The court of common pleas in Ohio is a court of general jurisdiction 739
Suit for specific performance of contract for sale of land in District of Columbia, instituted in state court prior to Act Feb. 27, 1801, may thereafter proceed to final decree 737
If verdict reduced below $20 by account in bar in circuit court of District of Columbia, there must be judgment of non pros. 1111
COVENANTS.
Of title, not implied in a deed without covenants 518
No action lies against grantor on a deed without covenants 518
CREDITOR'S SUIT.
Cannot be maintained by general creditor to set aside a conveyance, unless he has a lien on the property, or has reduced his claim to judgment 807
Will be dismissed if it is apparent that there was no bona fide attempt made by the officer to find property to satisfy the judgment 1010
Sustained though defendant had property subject to levy, where it was mortgaged and his affairs complicated 1010
Marshal's return of execution nulla bona is a sufficient basis for a creditor's bill, the burden of showing it to be false being on defendant 1010
Such falsity may be shown by establishing that the debtor had property liable to execution, and which could have been levied on, though insufficient to pay the debt 1010
The presumption in favor of the truth of the marshal's return of nulla bona is not overcome by the fact that he returned the process on the day he received it 1010
A court of equity may control the custody of notes assigned as security so as to prevent their being negotiated, to the detriment of the judgment debtor of the owner 298
On bill by judgment creditor to set aside conveyance as fraudulent, the court will look into the original consideration, and give the creditor only what appears due him 1143
CRIMES.
A person who encourages, countenances, and supports another in a murder is an accessary 465
CURTESY.
Seisin during coverture must be shown, to entitle husband to claim as tenant by curtesy. Exceptions 903
Entry on wild land not necessary, to enable the husband to claim as tenant by the curtesy 903
CUSTOMS-DUTIES.
Customs laws.
Terms of tariff act must be construed according to commercial usage and understanding, which is a question for the jury 325
Specific description in act of 1840 must prevail over commercial designation known at time of passage 382
Rates of duty.
Coral cut into form of a cameo, but not set. (Act 1846, amended 1857) 382
“A manufacture of hemp” does not include “hemp carpeting” so called in the trade, which, in fact, contains no hemp. 1054
Invoice: Appraisal.
Act Aug. 30, 1842, § 17, authorizes penalty of 50 per cent, for undervaluation of any goods other than those purchased 763
Secretary of the treasury has no power to fix a chemical analysis of Peruvian bark as the only test of dutiable value. 971
Ad valorem duties are paid on the quantity actually imported, (Act 1846,) and, where such quantity is measured by weight, a loss in weight will proportionally diminish duties, though value is not diminished 235
Expense of salt sacks is embraced in “all costs,” and is to be added to market value of salt 837
Market value of sugars transported from Cuba to Halifax, and thence imported, how ascertained 840
In arriving at market value at port of exportation, purchaser can only be required to adopt methods usually adopted by merchants in making purchases 971
Rule for ascertaining ad valorem dutiable value of merchandise procured by purchase prescribed by Act 1842, § 16, not repealed by Act 1846 837
Values of imported goods subject to specific duties are ascertained in the same manner as those subject to ad valorem duties. (Act 1820) 369
The determination of appraisers as to the market value in the foreign markets of an importation subject to ad valorem duties (Acts 1823, 1851) is conclusive 369
Otherwise as to goods subject to specific duties 369
The principal appraisers must act in person. An appraisal on certificate of a deputy is void. (Acts 1842, 1846) 816
Merchant appraisers need not act in presence of importer 595
Act March 3, 1851, § 3, in regard to reappraisals, applies to goods imported by their manufacturer 763
Bonding: Warehousing.
Right of collector to enforce payment of half fees on entry and appraisal of goods in bond and storage in private warehouses 87
On the warehousing and re-exporting of imported goods the importer is not entitled to recover back amount of the penalty paid because of an undervaluation 971
Payment: Protest: Appeal.
Protest alleging that appraisers were prejudiced and incompetent, but failing to particularize, is ineffectual 595
Protest claiming article as nonenumerated. when in fact it was enumerated, though wrongly classed, is insufficient 1054
Specific protest, which does not refer, to or affirm a prior prospective protest, must be regarded as evidence of abandonment of all grounds of objection 1054
Sufficiency of prospective protest 1054
Addition at end of protest, “and hereby protest on all future entries of the same goods,” is ineffectual as a prospective protest to aid an insufficient specific protest 1054
Official appraisers, even after appeal taken, have right to production of all documents connected with importation 971
Importers, by withdrawing their appeal to the merchant appraisers, and refusing to produce the documents connected with the importation as called for by the official appraisers, fix the correctness of the appraisement 971
Collection officers.
Jurisdiction of surveyor for port of East-port includes district of Passamaquoddy 269
Commissions of collector under Act 1820 1020
DAMAGES.
In estimating damages for personal injuries caused by negligence, injury done, pain endured, time lost, and expense incurred will be considered 11801214
Suffering or wounded feelings of parent not considered in estimating damages for loss of child, but only actual pecuniary loss 827
Exemplary damages awarded against railway company for accident happening in consequence of gross negligence or drunkenness of its servants 1110
Special damages, not specially pleaded, and not necessarily implied, cannot be recovered, although evidence thereof has been :given without objection 988
If amount of damages warranted by evidence, court will not inquire how jury reached result 1087
DEATH BY WRONGFUL ACT.
Under Ill. Act, Feb. 12, 1853, action can be maintained for benefit of next of kin, though they had no legal claim on deceased for support. It is not necessary to allege or prove actual pecuniary loss 934,935
In such cases there is no fixed measure of damages, but it is a question for the iury 934
What circumstances the jury may consider 935
A recovery in a former action for medical attendance, expenses, loss of service and time before the death of a child, does not affect the damages recoverable under the statute 827
DEBT (ACTION OF.)
Will not lie on a decree for an unascertained contribution from stockholders to pay the debts of the company 624
DEBTOR AND CREDITOR.
A debt is discharged by a tender and acceptance of a less sum in full satisfaction 670
A transfer of specific property to trustees for the use of creditors, under a mutual agreement that the property shall be received in full satisfaction and discharge of their several demands, constitutes a valid accord and satisfaction 977
Parties who sign composition deeds must do so in good faith 1132
Purchaser of lands subject to judgment lien cannot require officer to marshal debtor's lands in order of attaching of the lien 957
DEDICATION.
Of street for public uses includes its use as a wharf, if running to or bounded on navigable water 886
Selling building lots by map defining abutting street, not opened, is a dedication of the street for public use, but the fee simple does not pass to the city 886
The public square in Council Bluffs held to be dedicated to the public by the platting and acknowledgment thereof, and acts in pais by the dedicator 1082
A street dedicated to a city vests in the public, subject to its regulation and improvement by the corporation, and cannot be treated or used as private property by that body 771
DEEDS.
Of bargain and sale by a person not in possession is void 686
Of release, if it cannot take effect as a release, may be construed in furtherance of the intention of the parties as a bargain and sale 495
In construing, effect is to be given to every expression, if it can reasonably be done 771
Ambiguity requires deed to he construed most strongly against grantor 771
Mortgagee in good faith from grantee in deed deposited in escrow, and recorded by depositary without notice to grantor, will be protected 368
Deed absolute may be shown to be a mortgage 660
DEPOSITIONS.
Notice at Washington on Dec. 31, of taking of deposition in Baltimore on Jan. 2, is not reasonable 908
Where all parties reside in the place. a notice to take depositions on following day is not too short 101
Notice of taking, directed to the party, may be served on his attorney 907
Residence of adverse party sufficiently averred by certificate of magistrate that it appears to him that he resides more than 100 miles from place of caption 763
Where an issue is joined between plaintiff and garnishee, depositions must be entitled in the garnishee's name 471
Depositions sworn to before justice of peace, if taken under rule of court, may be read 583
A deposition, though merely to prove a pedigree, if taken by others than those named in the commission, cannot be read 583
It must be shown that witness whose deposition was taken de bene esse was served with subpoena, and is unable to attend 583
The deposition of a deceased witness as to pedigree may be read, though taken in another cause between other parties, and on a different subject 583
A deposition, after having been read, may be waived and withdrawn by party offering it 753
When filed for three years, motion to suppress for irregularities is too late 649
A suppression of answers to questions in a deposition warrants finding that they were prejudicial 1183
DESCENT: DISTRIBUTION.
Heirs of deceased debtor not permitted to have rents and profits of realty until the sale to pay debts 728
DISCONTINUANCE.
An attachment by way of execution is discontinued if there is no appearance at the return term 747
DISCOVERY: INSPECTION.
Discovery will not be granted in aid of a suit at law not in the proper form of remedy 195
On bill for infringement of copyright, waiving forfeiture, discovery may be compelled in aid of recovery of damages 195
Bill does not lie if plaintiff has knowledge or means of proof, or the same means as defendant 439
Defendant cannot be compelled to make discovery to a bill seeking to enforce penalties and forfeitures 195
If relief not incidental to discovery; bill does not give power to make final decree where answer discloses nothing, or denies all equity 439
DISMISSAL: NONSUIT.
Where plaintiff cannot sustain his bill, it must be dismissed at his costs, regardless of grounds of equity 9021215
Want of proper averments in declaration cannot be made ground of nonsuit 987
EASEMENT.
In determining the right to an easement of way acquired by user, the fact of user and susceptibility to such use must appear 771
Presumption of grant to public by uninterrupted use of way for convenience requires much shorter time than in case of use by individual 771
Such presumption may be repelled by showing owner's assertion of right, and denial of use assumed by public 771
The right of city inhabitants to access to a river over town proprietors lands is a mere right of way 771
By accepting conveyance without objection, and with knowledge that a street through the demised premises had been dedicated, grantee takes subject to the easement thereof 771
EJECTMENT.
Title acquired after date of demise cannot sustain the action 1085
A lease for the sole purpose of mining vests a corporeal interest sufficient to sustain ejectment 810
Joinder of parties holding separate and distinct possessions 1060
Landlord not permitted to defend alone in ejectment without consent of plaintiff in Pennsylvania 1188
No person, can claim privileges of an occupant (Act Tenn. 1806) unless he has actually settled on land claimed 1005
When defendant allowed to take possession of prior occupant to his own to bar action by length of possession 781
Possession held to pass under conveyance in like manner as if grantee had actually entered 1060
A presumption of title may arise from long possession under circumstances favorable to such presumption, but may be rebutted by positive proof 429
An equitable claim, however strong, cannot be set up to defeat the legal title 429
One seeking to invalidate or avoid a deed for adverse possession must impeach it 903
Defendant who has no title cannot question conduct of trustee in conveying to plaintiff 1060
Death of plaintiff's lessor does not abate 1085
A demise in the name of one deceased will be stricken out on motion 1085
It is sufficient to describe the locus in quo sufficiently to acquaint defendant with knowledge of what is claimed, and to enable him to prepare his defense 771
Municipal corporation must sustain its title by proof of as high an order as would be necessary by an individual 771
The truth of recitals in deeds, offered only to show the transmission of the legal title, need not be proved aliunde 686
Plaintiff may recover mesne profits, on giving notice that he means to proceed for them 1032
Plaintiff must prove the length of defendant's enjoyment of the premises, and their value 771
EMINENT DOMAIN.
See, also, “Waters.”
Land may be taken for a railroad, under legislative authority, upon just compensation being made 574
Private property cannot be taken for public use until compensation is actually made. A provision for ascertaining and making compensation afterwards is not sufficient 245
Congress has no power to authorize a telegraph company to construct its line over private property without making compensation 116
Act Md. 1785, c. 49, respecting taking of land for private ways, is valid 831
Such act is in force in the county of Washington, D. C 831
Authority to construct and repair railway, and take materials therefor, does not give right to divert waters for use of engines 784
Authority to take materials or divert water for use of railroad from lands contiguous to, adjoining, or near the railroad, is not limited to lands bounding the road 784
Pour days' notice of meeting of jury to fix damages is sufficient 574
EQUITY.
Jurisdiction.
Will not entertain jurisdiction if plaintiff has a plain, adequate, and complete remedy at law 439
One threatened with proceedings under a void act has an adequate remedy at law 472
Has no cognizance of executed trusts enforceable at law 439
An executed trust cannot be revived by nonexecution of trust arising from subsequent agreement relating to same subject 439
Has power to enjoin state officers from acting under a law impairing the obligation of a contract made with the state 580
Will not interfere to restrain an act done under color of authority conferred by law, until the right is determined at law 105
Will not entertain jurisdiction of defenses available in another court in prior case 486
An impediment to navigation by a bridge, causing sail vessels to strike their masts, may be adequately compensated in damages, and equity will not interfere 105
A suit may be brought to give effect to a decree where the conditions of the original decree are not appropriate to the powers of a court at law 624
Has jurisdiction of suit to set aside fraudulent conveyances by a judgment debtor 1143
There cannot be concurrent jurisdiction at law and in equity where the right and remedy are the same, but equity may proceed in aid of the remedy at law 439
The judiciary act of 1798, § 16, settles the law as to cases of equity jurisdiction in the nature of an exception to its exercise 439
Jurisprudence.
The vendee, coming into equity to obtain the legal title of a lot upon which the purchase money has been fully paid, must pay the balance due the vendor upon other lots 630
Courts of equity act upon the analogy of the limitations at law, and will refuse to interfere where there has been gross laches, and in some cases even short of the statutory period 331
In the case of concealed fraud, complainant must set forth and prove the particularities of the discovery 331
Staleness of demand may be relied on at hearing, though not presented by pleadings 439
Bill will be dismissed where answer positively denying matters charged is not overcome by testimony of two opposing witnesses, or of one witness corroborated by facts and circumstances 3311216
Rule that transfers between persons occupying fiduciary relations will be carefully scrutinized applied 198
Changes since the Revolution in rules and principles in English chancery not followed by federal courts 439
EVIDENCE.
Presumptions.
The grantor of land is presumed to bealive until the contrary appear 1032
Best and secondary.
Parol evidence cannot be given of contents of letter without previous notice to produce 747
A note paid by a renewal note, and given up to the maker, may be proved by the former holder by parol 749
The record copies of deeds are admissible without proving execution or loss of originals 686
Documentary.
Signature and seal must be sufficiently legible and distinct to be read and distinguished to entitle paper to respect as official document 121
The record in other suits between defendant and other plaintiffs cannot be read in evidence by plaintiff 614
A demurrer whereby a certain fact is considered in law as admitted is not evidence of the fact in another cause between the same parties 215, 216
A deed recorded under a decree in chancery may be adduced in a subsequent action and identified, though it did not remain on file in the suit 686
A genealogical table, certified under the seal of foreign office, is not evidence 583
The exemplification of the record of a mortgage is sufficient evidence of the existence of the mortgage and the debt due thereon 1118
Exemplification of record of copy of deed not evidence 781
Parol, etc., affecting writings.
Parol evidence not admissible to explain writing unless its expressions are shown to be equivocal 215
The meaning of “rainy day” in charter party may be shown by surrounding circumstances, including usage of port or trade 539
Evidence is admissible to show that a cashier, in taking a note running to himself as “cashier.” was acting as an agent of a certain bank 663
Parol evidence is inadmissible to vary the obligation of the parties in a contract under seal 660
The official character of the certifying officer, not appearing on the deed, may be proved by parol 686
A father and son had the same name but different residences. A patent for land bought with the father's money named the son as grantee. was inadmissible to show mistake 300
Declarations; admissions.
Declarations made by surveyor when laying off town are incompetent to impeach map of survey adopted by proprietors 771
Acts and admissions of one of several joint contractors or promisors are admissible against all 709
Hearsay.
Is admissible for the purpose of proving boundaries, ancient landmarks, pedigree, and prescription 1175
Competency: Eelevancy: Materiality.
The belief of a witness, together with the facts upon which it is founded, is admissible 642
A memorandum by a bank's note clerk, since deceased, that he had delivered a certain notice, is admissible in favor of the bank 692
Weight and sufficiency.
In case of conflicting testimony, the witnesses having best means of knowledge are to be credited 266
EXECUTION.
Court will not order it to be issued in other than the name appearing in the judgment, though through mistake of the clerk there is an obvious misnomer 718
Is a lien (in Colorado) on the debtor's property from the time it is delivered to the sheriff to be executed 978
Is not levied so as to give a lien against purchasers or creditors if the property is permitted to remain with the debtor 858
To make levy effectual, property seized should be specially designated in return or by reference to a schedule accompanying it 858
The effect of a seizure is to change the property in the goods, and vest it in the sheriff 858
Marshal is not bound to hold execution for full, sixty days 1010
Issued more than a year and a day after judgment not revived by sci. fa., held void 278
Motion allowed to take money out of court levied to satisfy a judgment, to pay a prior judgment 278
Parties claiming a superior lien on property levied upon by a marshal may proceed by intervention, and ask judgment against the debtor 596
The deed of the auditors (in Ohio) may be made to the purchaser at the sale, or to his order 739
The creditor has a remedy by action against the officer for irregularities in proceeding under the execution 278
EXECUTIVE DEPARTMENTS.
The executive power cannot be revised and corrected by the judicial 71
EXECUTORS AND ADMINISTRATORS.
An executor in a will not named as trustee therein with others to whom land is devised in trust has no power to convey the land 1172
Administrator is not bound to pay over money to creditor of deceased partner of his intestate, and cannot set up such payment in defense of action by representatives 874
Administrator de bonis non cannot be charged as such with property fraudulently conveyed to him by deceased 316
Administrator de bonis non is liable to banker for money credited by mistake to the intestate, and paid to the original administrator 804
Executor de son tort is liable for value of goods taken and used 1091
The ascertainment of assets must precede a judgment against an executor or administrator for a debt of his decedent 748
The auditor's report as to the amount due from an intestate is prima facie correct, and admissible in evidence 742
Executors appointed in New York under probate of will there not authorized to maintain actions for collection of assets of estate of deceased in California 977
The objection that plaintiffs are foreign executors may be taken at the hearing, where it does not appear on the face of the complaint1217 977
Jurisdiction and procedure of orphans court of Alexandria county in fixing compensation of executors 114
Accusations falsifying probate accounts for fraud must be specific, especially after parties implicated are dead 331
In a suit against an administrator for an, account, the commissioner to whom it is referred cannot admit an administration account settled in another jurisdiction without knowledge of plaintiff 316
FALSE IMPRISONMENT.
The detention of a person arrested in the Indian country beyond the time allowed by law for removal is a false imprisonment 770
Frauds (Statute of.)
See “Sales.”
FRAUDULENT CONVEYANCES.
See, also, “Bankruptcy.”
The joint possession by husband and wife of property conveyed to her separate use is no evidence of fraud 702
The right in a chattel under a contract which does not give a right to possession is no badge of fraud 159
Power reserved in trust deed to dispose of trust property with consent of trustee, upon substituting an equivalent, is not evidence of fraud 702
A voluntary conveyance to wife or children by solvent grantor, not impeachable by subsequent creditors, if not actually fraudulent 807
Such deed may become fraudulent by concealment from the public, and credit by reason of supposed ownership 986
Postnuptial deed founded on release of dower in husband's lands and mortgage to his creditors of lands held in trust for the wife's separate use, is not voluntary 702
Failure of a first incumbrancer to give notice after a second incumbrancer has advanced his money is no evidence of fraud 702
A bona fide purchaser without notice from a grantee, to whom property has been conveyed to defraud creditors, is entitled to hold against grantor's creditors 1143
The donee of slaves is liable to the creditors of the insolvent donor only for the slaves and their issue living at the time of the demand therefor, and their hire from such time, and the proceeds of sales by him 316
A conveyance made with intent to defraud creditors, not permitted to stand as security for advances made to the grantor on account of such conveyance 1143
GRANTS.
Law implies a grant of those things without which the principal subject cannot be enjoyed, as incident thereto 771
The oldest grant is conclusive evidence of title at law, except in the single case of an elder legal entry 1005
GUARDIAN AND WARD.
The court, on motion, will appoint a guardian ad litem for infant defendant 770
HABEAS CORPUS.
A commissioner has no power, by habeas corpus, to bring before him a committed person, for the purpose of giving his deposition to he used in a pending cause 851
HOMESTEAD.
See, also, “Bankruptcy.”
Head of family need not be sole owner of fee; it is sufficient that he has an interest subject to execution sale. (Neb. Code, § 525) 963
A widow having charge of household and domestic affairs in the home of her brother, and making it her home, is a part of his family 367
A family engaged to live in a farm house with the owner, and work the farm on shares, subject to his management and control, are not a part of his family 367
Occupation by wife and family is equivalent to occupation by husband. 963
Bight to homestead exemption, held not abandoned by three years residence in another place 367
HOMICIDE.
A person under reasonable apprehension of danger of life or great bodily harm, not arising out of his own act, has the right, in self defense, to kill the aggressor 465
INJUNCTION.
Granted to stay execution upon a judgment obtained against a garnishee by surprise 462
Granted to restrain an entry on land without authority of law to divert a stream thereon 784
Granted to restrain action on negotiable instrument by payee where note was given under agreement that it should be paid in services which maker has always been ready to perform 28
Will not issue to restrain a completed act 784
Not granted to restrain patentee from bringing suits on his patent before the patent is adjudged invalid. 5
Temporary injunction against collection of taxes under state authority, granted, with leave to bring question, before full bench 365
On motion for preliminary injunction, court will not decide fairly disputable questions of law and fact 391, 784
Complainants who delay until the substance of an injury is completed forfeit right to preliminary injunction 784
INNKEEPERS.
Whether a house is an inn or a boarding house is determined by the right of the proprietor to select hiB guests 1111
INSOLVENCY.
A discharge of a debt under the laws of the state where contracted is good every where 305
A discharge under a state insolvent law does not bar a debt contracted in another state with a citizen there 756
INSURANCE.
Marine insurance.
Master who, to prevent loss, buys in cargo at a public sale after abandonment, does not become owner so as to have an ins arable interest 817
Under an order to insure a given sum, agent cannot insure to cover premium in same policy with that to cover value 9841218
A misrepresentation as to time of sailing, if material to the risk, avoids the policy 1058
Traders in. belligerent country cannot recover on policy made with warranty of neutrality, where belligerent character not disclosed 1039
“Warranty of American property held to extend to all cargo put on board on which policy is to attach 1065
In an action against insurers, invoice on board afi time of capture as enemy's property, and deposition of mate, competent evidence for defendant 279
Plaintiff, to recover under an open policy, must prove his interest and the value of the property 1109
Bill of lading of outward cargo no proof of interest in homeward cargo. 1109
Interest in a return cargo cannot be proved by the certificate of a supercargo, nince deceased, or by his declarations 1109
Fire insurance.
Trustee appointed in place of one named in will, who declines to serve, has insurable interest 306
There is no privity of contract between consignor of goods shipped to be sold on commission and an insurance company with which the consignees for their own benefit insure their interest to the full value of the goods 674
Charging insurance brokers with a premium due, though not paid, renders company liable, notwithstanding condition that policy shall not be in force until premium is actually paid 585
Keeping saltpetre on hand to cure meat is not within prohibition of storing or vending it 1087
The storing or selling of an inconsiderable quantity of saltpetre is not within prohibition of storing or vending. But a keg of saltpetre is a considerable quantity 1087
The conditions annexed to the policy, in order to bind insured, must be brought to his attention at or before the time of the contract of insurance 1007
The consent of the insurer to a change of ownership in the insured property must be evidenced in the manner provided in the contract 1021
A consent to an indorsement on a policy, payable in the case of loss to” a third person, is not a consent to change of ownership to such person, where such change was not known at the time 1021
Whether goods embraced in a stock insured as “dry goods” were or were not “dry goods” is for the jury 1007
An instruction that the arson charged against owner in defense of action or policy need not be proved beyond a reasonable doubt is not necessary where court correctly charges as to measure of proof required 1087
Life insurance.
Legal title to policy obtained by husband on his life for benefit of his wife is in her 1166
Accident insurance.
Death from inadvertent taking of overdose of opium prescribed by physician is not caused by external, violent, and accidental means, but by medical treatment, within exception of accident policy 1077
Insurance agents.
Where the insurer contracts by and through the solicitor of insurance, a clause in the policy declaring that persons acting as solicitors are agents of the insured and not of the insurer, is invalid 1007
Local agent of foreign insurance company has power to bind company by parol contract to renew policy with one having no knowledge of restrictions on his authority 1038
INTEREST.
An account made up of principal and interest, when settled, bears interest on the aggregate balance 407
Is recoverable on bond with penalty only from commencement of suit, where no demand or acknowledgment is made 722
A state statute allowing interest on unpaid installments of interest has reference to installments due by contract, and does not apply to interest accruing by operation of law 956
Accrues by operation of law after maturity of note providing only for semiannual installments of interest 956
INTERNAL REVENUE.
Assessor has power to make a supplementary assessment, increasing amount of distiller's tax 825
In a suit to recover back taxes paid on a reassessment, for error in the first assessment, the record of reassessment is not evidence of the error 825
JUDGMENT: DECREE.
Bendition and entry.
Bank of Alexandria is entitled to judgment at the first term 600
A defendant arrested to appear at next term cannot come in and confess judgment before such term 37
Where the record is destroyed after verdict, plaintiff after seven years allowed to file transcript of record in his possession, and enter judgment thereon 517
Where defendant dies after verdict and before judgment, his personal representative must be made a party by direct proceedings 517
Operation and effect.
The regularity of proceedings under which a vessel was sold cannot be inquired into in trover in another district court for her possession 818
A judgment of a court of general jurisdiction, having cognizance of the case, however erroneous, will protect purchasers thereunder 739
Where a bill is dismissed on motion of complainant before testimony taken is published, and without a hearing on the merits, the record is no bar to another suit 327
New parties to a second suit, not privy to the parties in the first suit, cannot introduce the former judgment in their favor, though seeking to enforce the same rights. Exceptions 791
A judgment against a bank in a suit upon its teller's bond, is no bar to an action for money had and received by him for its use 701
A judgment without process is not a lien on personalty 325
The lien on lands created by a judgment depends upon the right to sue out an elegit 743
A judgment lien operates only upon such property as is subject to levy and sale under legal process issued for its payment 325
A judgment lien does not operate upon property at the time in possession of the sheriff under attachments 325
The lien of a judgment on which execution is stayed dates only from the time when execution may be sued out 743
A judgment rendered in a federal court is a lien from its date on all lands of defendant within the district, and (in Indiana) on those subsequently acquired from such time 957
A judgment lien takes effect from the first day of the term, and is prior to the lien of a mortgage executed before such day, and recorded on a later day, when the judgment was entered 1219 626
A judgment upon a verdict, subject to the opinion of the court upon a case stated, does not relate back to the date of the verdict as against an intermediate judgment 684
If execution is not issued and levied within a year, the judgment is no lien as against a subsequent judgment, as to which execution was duly issued and levied 707
Belief against: Opening: Vacating.
A judgment or order finally disposing of a case cannot be reviewed at a subsequent term on motion, but errors therein may be corrected 596
On motion of special bail on return of sci. fa., court will set aside original judgment against the principal, for irregularity, and all subsequent proceedings 217
Money paid on an erroneous judgment, may after reversal be recovered back in an action for money had and received. Such recovery may be had though a venire denovo is awarded 745, 747
Of different jurisdictions.
The federal court in a suit by an assignee in bankruptcy will not examine into the validity of a judgment confessed by the bankrupt in a state court whose jurisdiction is not denied 112
Actions on judgments.
Praud in the recovery of a judgment in another state cannot be pleaded in an action thereon unless such defense could be made in the courts of such state 906
JUDICIAL SALE.
Court will set sale aside, if not fairly made 617
LANDLORD AND TENANT.
One holding over under a written lease is bound for the rent therein stipulated 476
Landlord evicting tenant from part of premises cannot distrain for rent 465
Where rent is payable quarterly, plaintiff cannot recover for a quarter unexpired at the time of an eviction. 637
The same principle applies where the rent is payable yearly 637
Slave of third person, hired to lodger, cannot be distrained for rent due by boarding-house keeper 1111
LIBEL: SLANDER.
Words not in themselves importing anything injurious may be shown, by other matter alleged, to have been spoken with intent to affect plaintiff's credit and standing as a merchant 1181
Access by the clerks generally of a mercantile agency to books of mercantile reports prevents them from being privileged 1183
Communications made by a mercantile agency, through its clerks and agents, to its customers as to the pecuniary ability and standing of merchants are not privileged 1187
It is no justification, that defendant received his information from his slave, as no action will lie against a slave 105
Malice inferred from persistency in keeping libelous matter on defendant's mercantile books after notice of its falsity 1183
An innuendo cannot extend the sense of the words spoken beyond their usual and natural import except by connecting them with other matter alleged 1181
The truth of the publication, when relied on either in bar or mitigation, must be specially pleaded 943
Plea in justification must state the substantial facts which constitute the elements of the charge, when it is general 943
Irrelevant matter in a plea of justification will not vitiate it, even on special demurrer 943
Plaintiff, while not required to prove the exact words used, must show them in substance and effect 1183
Standing publication of a libel contained in book of mercantile reports is shown by proof that the books were not in defendant's exclusive possession, but accessible to his clerks 1183
Degree of proof required where the truth is set up in justification of a charge of crime 465
Although words injurious to a man in his trade are actionable per se, plaintiff must prove the special damages claimed 1183
Plaintiffs suing as a partnership, for injuries to their business by libelous mercantile reports, cannot have damages for individual libel unless it affected the business of the firm 1183
General current reports as to the truth of libelous matter may be considered in mitigation of damages 1183
LIMITATION OF ACTIONS.
Nature and operation of statutes.
A British subject who, before the treaty of 1794, took a bond in the name of a citizen of the United States, cannot avoid the statute of limitations by claiming the benefit of the clause which removed all legal impediments in the recovery of British debts 216
The statute does not run against an equitable title, nor in favor of one 429
The fact that the United States is a stockholder does not exempt a corporation from the operation of the statute 718
Virginia limitations act of 1819 applies to corporations 718
Time of limitation; how computed.
The statute begins to run from the date of a note payable on demand 977
Cause of action to recover back money paid on an erroneous judgment arises upon reversal, although a venire de novo is ordered, and the statute commences to run from such time 748
Time of accrual of right of action for money received 70
Exceptions; suspension
The county of Alexandria is not “beyond seas” as to the county of Washington in the District of columbia 605
Where a contract is made by a branch bank within the state of the plaintiff bank, the exception in favor of one “beyond the seas or out of the country” is not applicable 718
Acknowledgment or new promise.
The statement by the maker of a note that he will “attend” to it is sufficient to remove the bar 600
Casual acknowledgment of debt to a stranger may be sufficient to take it out of the statute 643
An offer to compromise a debt will not take the case out of the statute 7,647
Written acknowledgment required to remove the bar in Kansas 830
Pleading.
In an action on a time note, non assumpsit infra tres annos is bad on general demurrer; it ought to be actio non accrevit 644
LITERARY PROPERTY.
An author has a commonlaw right in his manuscript, and is entitled to an injunction to restrain its publication 967, 9811220
It is not an abandonment to the public to use one's manuscripts to instruct others who are permitted to take copies 981
Copies so taken for purposes of instruction cannot be applied to any other purpose 981
The copyright act (1831, § 9) protects the author's right to his manuscript, which includes private letters 967
The common law gives protection to the author for his manuscript only 967
Where an author's manuscript work has been published, he has not an exclusive right at common law to republish it, for the first publication is a dedication to the public 967
MALICIOUS PROSECUTION.
Declaration must allege termination of proceedings 907
MANDAMUS.
A judgment in a federal court on municipal bonds may be enforced by mandamus compelling a levy of taxes, provided by law for their payment 67
A peremptory, instead of an alternative, mandamus will be granted where defendant has had ample opportunity to set up all defenses 67
MARITIME LAW.
The exclusion of the maritime law will not be inferred. The mere absence of a tribunal to enforce it is not suflicient evidence of an intention to exclude it 255
Where obligations growing out of international commerce are to be adjudicated with reference to the maritime law, the lex loci contractus, the lex rei sitae, and the lex loci delicti are inapplicable 255
MARRIED WOMEN.
Bills of exchange and promissory notes constitute an exception to the rule that the wife's choses in action, other than chattels real, are assignable only in equity 1071
Indorsement of note to wife, and assignment of mortgage securing it by husband alone, is suflicient at common law 1071
Act Cal. April 17. 1850, inapplicable to husband and wife married out of state, and never having been within its limits 1071
It seems that a married woman cannot hold, to the exclusion of her husband or his creditors, a stock of goods purchased on credit, nor the proceeds or profits. (Wis. Act Peb. 1,1850) 243
A married woman, living with her husband and carrying on trade in her own name, cannot, in Wisconsin, become his debtor, nor be garnished in proceedings against him 243
MARSHAL.
Entitled to full commissions on interlocutory sales of prize 241
Cannot enforce payment of fees by an order and an attachment 169
Not responsible for act of deputy not in the line of his duty 357
The deputy is an officer of the court, and may be held responsible as such 357
The deputy may be attached for disobedience of an order to pay over money received on a judgment after return of execution 357
MASTER AND SERVANT.
A mother cannot bind out her child 558
Binding out of apprentice in Washington county, D. 0., is of no effect, unless parents approve and indorse indentures within two months 928
MINES.
A lease of land for the sole purpose of mining, subject to the owner's use of the same for tillage, gives an exclusive right of mining 810
MISTAKE.
A father who takes no steps to have corrected a patent erroneously naming his son as grantee is guilty of laches as against a bona fide mortgagee from the son 300
MONEY RECEIVED.
Money paid on an erroneous judgment to the agent of the plaintiff may, on reversal, be recovered from him if yet in his hands, or if he was given notice at the time of payment that he would be required to refund it 745
MORTGAGE.
The fact that no bond was ever executed is not fatal to a mortgage purporting to be executed to secure payment of a certain sum, according to the conditions of a certain bond 521
A mortgage cannot be sustained as given for an actual debt other than that stated on its face, except on clear proof 521
An assignment of a mortgage, with” all sums due or to become due thereon, will include the note secured as an incident of the debt 521
Persons consenting to change of bonds for stock in new company, formed on foreclosure of mortgage on first, cannot have new foreclosure on claim of coercion 862
Legal owner of equity of redemption and of mortgage paid by it held entitled to possession pending suit to declare title void 832
MUNICIPAL CORPORATIONS.
A warrant to. recover the penalty of a bylaw must name the corporate plaintiff, and describe the offense with reasonable certainty 901
The mayor of Washington cannot exercise jurisdiction in a case in which he is a party 901
Right to lay railroad tracks and build depot or pier buildings in city (Keokuk) streets without consent of abutting owner 898
Owner of lots in Keokuk, fronting on Water street, owns the fee in the Btreet to the river, and the portions reclaimed from the river, subject to the public easement 898
Authority to issue town bonds in aid of railroad under Illinois acts 504
Town bonds issued after, but authorized by vote before, the adoption of a new constitution, are not affected by it 504
Town bonds and coupons not sealed, issued under a law providing that they should be under seal, though their wording showed they were intended to be sealed,” are void 251
A certiorari to review the decision of a county judge, that railroad aid bonds be issued, suspends the operation of his judgment, and the railroad company acquires no title to the bonds issued thereunder enforceable against the town on reversal of the judgment 374
Such reversal cannot invalidate the title of a bona fide purchaser 374
The purchaser from a railroad company of railroad aid bonds issued in fraud of the rights of the town must show that he purchased in good faith and for value1221 374
NAVIGATION.
The right of the public for purposes of navigation is paramount to that of the riparian owner 245
Both federal and state governments mayauthorize alterations in navigable streams to afford greater facilities for navigation, and in bo doing may take property of riparian owners, upon making compensation therefor 245
A law declaring a stream a public highway may be repealed or modified whenever the public convenience and common interests of the people require it 105
The construction of a railroad bridge across a navigable river, though authorized by state legislature, may be enjoined by federal court 427
But where congress subsequently gives authority to construct the bridge, the injunction will be dissolved 428
Where it appears that a proposed bridge across navigable inland waters is a common nuisance, the proper remedy is a prosecution by the state 105
The nation which constructs an artificial channel may annex such conditions to its use as it pleases 255
NEGLIGENCE.
An owner who leaves uncovered an excavation made by him in the adjoining sidewalk is liable to a pedestrian who, in the use of ordinary care, falls into it at night 1180
NEW TRIAL.
Not granted, where evidence conflicting, because court would have drawn different conclusion 1087
OFFICERS.
The bond of a teller of a branch Bank of the United States is not void because executed 14 days after he has entered upon his duties. 688
The condition in a bond to well and faithfully behave and execute the office, does not render the surety liable for want of skill 688
The sureties on the bond of a cashier of a bank are liable for his acts pending the communication and carrying into effect of a resolution of suspension 722
PARTIES.
Having distinct claims against same defendant cannot maintain joint suit in equity 472
A corporation which has obtained the title of one of original defendants pendente lite, may become a defendant, and seek relief by cross bill, although it has also acquired the sole complainant's title pendente lite 832
PARTITION.
Bill will not be entertained unless claimant's title be clear to the portion to be received 886
PARTNERSHIP
Any partner may be agent of third person in drawing bills in favor of the firm for advances made under express authority 794
A firm may negotiate its own paper to one of its partners, or take his paper and and use it for the firm's purposes 794
A bill drawn by a partner in two firms, in the name of one, upon the other, payable to himself for his individualdebt and accepted, is enforceable in the hands of an indorsee without notice 302
In a suit for the settlement of partnership accounts, where one partner died insolvent his next of kin or other personal representatives are necessary parties 964
Items of partnership account cannot be recovered in a suit at law between the partners if the joint concerns have not been settled 945
In an action at law between partners, accounts rendered are admissible to show that the items are not of partnership accounts 945
One who sells to a firm cannot maintain an action for the purchase price against a partner subsequently taken in 201
Debt may be maintained upon a firm note against a secret partner, who has not signed it, but he is not liable if the money obtained on its discount was not used for the firm 614
PATENTS.
Invention.
Combination of known tool with known machine, requiring only ordinary mechanical skill, not patentable 386
Features which a skilled mechanic would devise or apply in operating a machine not patentable 947
Novelty.
A machine is patentable only when substantially new 1142
Application of old machine to new purpose is not patentable 1142
There must be novelty, either of product or of process, to make combination patentable 1027
Patent for combination cannot be supported by evidence of novelty of one of its parts 1027
Who may obtain patent.
He who invents first, although his invenvention is imperfect and incomplete, has the prior right if he uses reasonable diligence in perfecting and adapting the same 960
A joint patent cannot be obtained for a sole invention of one 914
Prior public use or sale.
Use of an invention by public for 11 months will not bar right to patent 293
A prior use alone, in a foreign country, will not avoid the patent 960
Nor will such prior use in this country necessarily avoid the patent unless with the patentee's consent or allowance 960
Devices employed in experiments will not on their abandonment, defeat a patent to a new and independent inventor 217
Prior description.
Description, in printed publication, will not avoid patent, unless prior in point of time to the invention of the patentee 960
A prior description, to invalidate a patent, must be such as to show that the article described in the patent can be certainly arrived at 141,147
Abandonment: Laches.
Merely withholding an invention from the public does not amount to an abandonment 293
Concealment of invention, because of information that another had anticipated it, will not forfeit right to patent 2711222
Application and issue.
The embodiment of the principle into a machine as described, and not the abstract principle, is the patentable thing 1142
A patent of one making an improvement on an existing machine, or a new machine, should not be for a method, but for his machine, or improved machine 914
Use of phrase “any suitable material,” in patent for combination, shows claim to combination, limited to known materials, though not named 386
It is discretionary with patent office to determine whether specimens of the ingredients or of the compound in a patent product are necessary 339
Original model may be proved by specifications and drawings where certified model is broken, and parts lost 217
The essential features of the invention must be shown in the specification; their appearance in the patent office model is not sufficient 947
A patent cannot claim both the combination of machines and the machines them selves 914
A patent for an improved machine must specify in what the improvement precisely consists 914
A patentee making an improvement in a combination of machines should include in his patent only the improvement 914
There must be several patents for several improvements of distinct machines 914
Patents may be united if two or more, included in one set of letters, relate to a like subject, or are in their nature or operation connected together 914
The obtaining of a joint patent estops the patentees to claim under prior several patents for the same invention 914
Appeals from commissioner's decision
A patentee may appeal from a decision against him on an interference declared between his patent and an application 293,1102
The jurisdiction of the circuit court of the District of Columbia over the question of priority only arises where an interference is declared, and so determined 394
The interference coming up for review is only such as respects patentable matters 394
Objection to evidence waived where not distinctly made when taken 819
Sufficiency of evidence to show priority of invention. 1102
Suit to invalidate patent.
Parties in suit to invalidate patent granted by the commissioner after an interference not confined to evidence before commissioner, nor is such evidence in the case 97
Reissue: Disclaimer.
The act (July 4, 1836, § 13) authorizing reissues is to be construed liberally, and not literally, as restraining and limiting the right 550
A description claiming a combination, and not giving notice of a claim of any part, is a dedication of the parts to the public, which cannot be revoked by surrender and reissue 1031
Devices shown in the original drawings, but not specified, may be claimed in the reissue 766
The applicant has a right to restrict or enlarge his claim so as to give it operation, and effectuate his invention 550
A new function developed by combination of different elements is beyond the scope of a reissue 550
The right to reissue in two divisions, one for the process and the other for the product, illustrated 346
The model filed in compliance with the law is admissible as evidence of the scope of the invention and of the defects in the patent 554
The fact of reissue raises a presumption that the invention claimed in the original and the reissued patent are the same, and that the term has not been extended 766
Tests to be applied in considering whether a reissue is for the same invention as the original 217
Act 1839, § 7, 9, authorizing a disclaimer, do not apply where the patent is for combination of parts 1027
Duration.
Act 1870, § 25, providing, in the case of foreign patents, that the United States patent shall expire at the same time with the foreign patent, is not retroactive, and does not apply to the reissue of a patent previously granted 346
Assignment.
A conveyance of an interest in a patent must be in writing, and a mere memorandum, in the hands of the patentee, is not sufficient 534
An assignment of all the grantor's right, title, and interest in and to a certain patent carries only the grantor's existing interest 24
An assignment made by the judge of probate under the Massachusetts insolvency law does not pass the insolvent's interest in letters patent 24
An unrecorded assignment of a patent is good as against subsequent recorded assignment to one with notice 24
Licenses.
To make and use a patented machine need not be in writing 534
To make and use a machine gives no power to authorize a third person to construct it 534
An agreement between owners of conflicting patents defining their rights, and providing for the purchase of outside patents for mutual protection, held to give only a license to use such purchased patents, and an action thereon is properly brought in the name of the purchaser alone 217
Sale of patented machine.
Deed construed as a conveyance of a single machine, without right to construct others 534
Infringement-What constitutes.
Subsequent discovery of peculiar value of material used by inventor does not give discoverer right to use it in the patented manner 386
A patent for a new product is infringed by its manufacture by any process whatever 346
A substitute for an ingredient in a patented combination does not cease to be an equivalent because it does something more and better 135, 138
The substitution of known mechanical equivalents, or the changing of parts in a nonessential way, not producing a new result, is an infringement 391
The character of an infringement is not affected by a mere alteration in form and proportion, not affecting results, nor by the substitution of mechanical equivalents 914
It is no infringement of a patent for a combination of machines to use either of the machines separately 914
Bubber roller covered with cloth not an equivalent of a roller with an outer covering of rubber 386
—Remedy, generally.
Circuit court may entertain a bill for an injunction and an account, or the repeal of an interfering patent 2711223
Infringement-Preliminary injunction.
Withheld on defendant's agreeing to accept a license 510
Not granted, where injury to defendant would be irreparable and profits to patentee are by licensing 1028
Denied where affidavits contradictory, and question in doubt whether defendant had license 1163
Not refused where defendant has not been misled by plaintiff's conduct in allowing his suit to rest until a recovery in other suits by him, and then discontinuing, and bringing a new action 147
Pending suit in another circuit no ground of postponing, where patent has been declared valid 135
Where the evidence is the same as upon a prior case, the decision there will be followed 391
A decision in favor of the applicant on an interference declared between an application and a patent is sufficient ground for refusing injunction to senior patentee 5
—Procedure.
It is discretionary with the court to order issues for a jury 271
To prevent multiplicity, suit between patentee and user of infringing machine suspended to await result of pending suit between patentee and principal infringer 902
The interpretation of the specification is for the court 1027
On application for a provisional injunction, expert demonstration of the patents may be made 914
—Evidence.
Burden of showing in defense that patentee was joint inventor is on defendant 22
A patent is itself prima facie evidence of novelty and usefulness. Plaintiff cannot give cumulative evidence on these points till they are controverted 1027
The prima facie force of a patent as to priority of invention is absolutely destroyed by evidence of priority of invention by another 954
Mere applications for patents cannot be considered on the question of novelty 819
A patent will be sustained on testimony of patentee that he was sole inventor, corroborated by the circumstances, as against testimony of another claiming to be joint inventor 22
The applicant's oath, at the time of the application, that he believed that he was the first inventor, is sufficient evidence of that fact where uncontradicted 960
—Damages.
Plaintiff not entitled as damages to money paid counsel for services in the suit 578
Decree-Construction.
A decision that a certain patent does not destroy the novelty of another is not necessarily a decision; that the use of an arrangement in the latter is not an infringement of the former 307
Various inventions and patents.
Alizarine. No. 95,465, and reissue No. 4,321, for artificial alizarine, produced from anthracene, held valid and infringed by article produced under patent No. 153,536 339, 343,346,348
Boiler furnaces. No. 20,616, for improvement for burnin.5 wet fuel, held valid 766
Bracelets. Reissue No. 4,192, for improvement in plated metal bracelets, held valid 779
Cooking stoves. Barston's improvement held not anticipated 949
Corset springs. Reissue to Barnes, for improvement construed, and held valid and infringed 876
Explosive compound. Reissue No. 5,799, for combination of nitroglycerine with an absorbent substance, held valid and infringed. 135,138,141,147
Harvesters. Reissues Nos. 2,608, 723, 724. 726, for improvements, held valid 217
Hats. No. 33,978, for improvement in bonnets. Construed, and held valid, but not infringed 528
Such patent held infringed 510
Hats. Reissue to Modena Hat Company for an improved fabric for hats, bonnets, etc., held not infringed 528
Hats. Patent to Kendall and Trested, for compound for coating textile fabrics, held not infringed 528
Nonexplosive lamps. No. 57,245, to Beschke, held not infringed by Houchin's patent 23
Ovens. Reissue to Ball, for improvements, held invalid as broader than original 556
Printing presses. Award of priority for improvement 293
Pumps. Reissue to Barker, for improvements in buckets for chain pumps, held infringed by buckets made under Stowe's patent 819
Reaping machines. Ball held entitled to reissue of his reissue No. 832. 554
Rocking-chair. No. 1,531, for improve-ment held invalid 1142
Rubber. Ayling's patent for improved treatment in caoutchouc held valid 271
Sewing machines. Reissue and extension of Bachelder, held infringed by machines constructed under reissues Nos. 346 and 414 307
Steam pumps. Patent awarded to Board-man for improvements 97
Steam safety valve. Reissue No. 58,962, as properly limited, held not infringed by patent No. 58, 294, 20
Telegraphy. Morse's claim (patent No. 6,420) for a new system construed, and held not to interfere with Bain's claim, (patent No. 6,328). 394
Tin cans. No. 71,680, for improvement in machine for manufacture, held void for want of novelty 947
Wringer rollers. Reissue, of April 18, 1865, for improvement held valid 386
PAYMENT.
Where, in the absence of fraud, etc. Confederate money has been received in exchange for property, the federal courts will not interfere 378
A payment by a bank to military authorities of funds belonging to the enemy, under coercion, discharges the bank 678
Where such funds are in Confederate notes, the payment may be made in Confederate notes. 899
Goods consigned by an agent, with notice that they belong to his principal, are not paid for by the acceptance and payment of drafts drawn by the consignor on general account 1044
Purchase of notes by trustee for another held not to amount to a payment 501
The acceptance of new security without full knowledge of the facts, or induced by fraud or deceit, is not a discharge 458
At common law, a promissory note given for a simple contract debt is not payment unless so intended 458
In Massachusetts the presumption is that it was so intended 458
A bank must apply the proceeds of a note discounted by it as intended by the person offering it 6151224
PLEADING AT LAW.
Declaration.
In debt for “§103 1/3, or 31 pounds Virginia,” is not for a sum certain, and is bad on special demurrer 28
In trover for “a chest containing sundry tools,” is sufficient to admit evidence of the value of the tools 556; contra, 555
Allegation that plaintiff was owner of vessel laden with a cargo is sufficient allegation as to ownership of cargo 988
An affidavit charging defendant as follows: “1809, Oct. 5. To goods per bill, §”—is insufficient 965
Pleas.
Not guilty within three years is a good plea in trover 847
Nil debet is no plea to debt on a judgment of another state 1012
Plea of nul tiel record not allowed after plea of not guilty and issue, to debt on a judgment, suggesting a devastavit 1012
Defendant not permitted to plead the statute of limitations after the expiration of rule to plead 637
Where distinct defenses are pleaded, one one cannot be taken to help or destroy the other 313
Court will not order general issue to be stricken out to give defendant leave to plead in abatement 645
Replication.
Sufficiency to raise question of validity of contract set up in defense 121
Demurrer.
Defects in declaration in setting forth case may be availed of by demurrer 987
On demurrer to a plea, the court will consider defects in the complaint which otherwise would have been considered waived by the plea 649
A plea is not bad on special demurrer because misnaming plaintiff in marginal title. (Overruling 638) 644
Striking out pleas.
Plea not stricken out as frivolous if matter properly pleaded is included 313
Plea which expressly or in effect admits the cause of action cannot be stricken out as frivolous 313
Plea false on its face may be stricken out 313
Issues.
A subsequent amendment of the record does not affect the issue under the plea of nul tiel record 866
Upon an issue on plea of general performance, plaintiff is not bound to produce the original covenant sued upon 1119
PLEADING IN ADMIRALTY
Exceptions in an answer to a libel will be deemed waived if not determined before proof taken at the trial 227
PLEADING IN EQUITY.
Bill.
A bill is defective which does not give full names of all parties to whom it refers 957
Where all matters alleged in a bill are relevant to one defendant, he cannot object to it, as multifarious, because it is not relevant to the other defendants 195
A bill against infringers of a copyright, praying injunction and discovery in aid of a suit at law against one, though declared bad as a bill for discovery, is good on general demurrer, the remedy by injunction being independent 195
A bill seeking a discovery to enforce a forfeiture or penalty is bad on special demurrer 195
Plaintiff can recover only upon the case made by his bill, and not upon that made in the evidence 1033
Where defendant is sued as sole owner of a railroad, and the proof is that he is jointly concerned with others as a stockholder, no decree can be entered against him unless the bill is amended 1171
An objection to jurisdiction for want of parties, of equity in the bill, or of there being a remedy at law, may be taken at any time 439
An exception (in Louisiana) that plaintiff, suing as administrator, is not administrator, must be pleaded in limine litis 900
Such an exception cannot be embodied in the answer, and it must be verified by affidavit 906
The same rules apply to the exception of lis pendens. 906
Defects in pleadings not objected to at trial usually, considered waived. 486
Cross bill.
A decree dismissing the original bill does not dispose of cross bill, setting up additional facts, and praying affirmative relief 832
Demurrer.
A demurrer admits allegations of bill for purposes of motion on bill and demurrer 1069
A demurrer to a plea presents the question of the sufficiency of the bill, as well as of the plea 1171
A general demurrer to a bill will be overruled if any independent part of the bill is sufficient 195
Special demurrer to bill must specifically point out parts to which it applies 195
Inconsistencies of allegations as to authorship in bill for infringement of copyright no ground of objection on general demurrer, if other allegations are sufficient 195
The objection that a bill for infringement of copyright sets forth no title in plaintiff, and lays no legal foundation for a discovery, may be taken by general demurrer 195
Plea.
An objection that a plea is defective in not responding to all the allegations of a bill is not sustainable, for a plea may be to a part only 1171
Answer.
Answer in name of three defendants, but signed and sworn to by two only, wiil be stricken from files, but with leave to amend 390
Where bill sets up facts taking an oral agreement averred out of the statute of frauds, defendant will be required to respond by answer to such facts 385
Admissions in answer, not put in issue by some charge in the bill, are unavailing 1033
POWERS.
A deed of an attorney, executed in his own name, is not valid as the deed of his principal 781
Principal bound by act of his attorney in fact when he acts within scope of his authority 781
Under power of attorney from several persons to make a joint note in renewal of a joint and several note, a jqint and several note made by the attorney, if beyond his power, is invalid only in part 679
A power to sign notes in renewal of existing notes gives authority to sign renewal notes given for renewal notes 749
PRACTICE AT LAW.
If books and papers are in court, they may be called for after jury is sworn 763
Defendant not required to produce an account rendered to him by plaintiff, except as accompanied by his affidavit as to the circumstances under which it was received. 1225 742
Nonproduction of papers not available as ground of nonsuit or judgment by default, except after order to produce, made on motion 702,988
Evidence may be received to disprove possession of or power to produce papers 988
A prior ruling stated by the judge out of court to have been made by him, when-unreversed, must be considered as the law of the case, when coming before another judge 852
After rule to plead expired, plaintiff not compelled to produce his cause of action 385
Effect of minutes of court upon which no order is entered 852
PRACTICE IN ADMIRALTY.
An entry on the record that on the return day a certain person “appears, * * * and has a week to perfect an appearance,” does not show a waiver of objection to jurisdiction 80
Claim, to be available, must be interposed on the return day of process, when proclamation is made 1048
A defense to libel for seamen's wages may be heard without an answer 937
Practice in examining parties in admiralty 236
Slate statute admitting parties as witnesses does not apply in admiralty 236
Act March 3,1861, § 4, authorizing transfer of owner's interest in ship and freight to a trustee for claimants, does not apply to a loss to another vessel by collision, nor to injuries to cargo on board the vessel in fault 875
Foreign attachment in admiralty lies in cases of tort 875
The regular proceeding against a surety in a stipulation for costs is by petition after notice, and the decree may be final and peremptory. Upon proceeding by motion after personal demand, a conditional decree only is awarded 569
PRACTICE IN EQUITY.
Orders and final decree taken under stipulation in pending case, in vacation, without sanction of court, not set aside on summary motion 1073
The original papers, documents, etc., in an equity suit, may be used in court as the record, where the proceedings have not been recorded at length 686
Necessary averments in affidavits on motion for rehearing 823
Motion for rehearing in suit for infringement of patent cannot be made after term at which final decree entered 823
Proper practice in case of surprise in testimony not noticed by answer 823
Rehearing after interlocutory decree grouted upon filing supplemental bill, for newly-discovered evidence, if of such nature as to entitle party to relief upon bill of review after final decree, but not otherwise 486
Error of judgment or mistake of counsel as to effect of evidence no ground for rehearing 486
Rehearing not granted on ground of new-. Iy-discovered evidence of which the party, by reasonable diligence, might have obtained knowledge 486
Rehearing not granted if newly-discovered evidence is merely cumulative 486
PRINCIPAL AND AGENT.
Authority to indorse notes need not be under seal 749
An agent to sell on credit, taking a mortgage as security, is not thereby authorized to foreclose the mortgage 226
All agent authorized to foreclose a mortgage, and bid in the porperty, who does so in his own name, holds for the benefit of his principal 226
Authority to receive notices ceases with the principal's death 749
Agent is not liable to suit on a contract made in behalf of a disclosed principal 663
A collecting agent, receiving Confederate notes in payment, without authority, is liable 678
Agent will not be directed to deliver up papers in bis possession if he has a lien thereon 804
PRINCIPAL AND SURETY.
The creditor is not bound to use active diligence to enforce his claim against the principal debtor unless requested by the surety 660
A surety can require the creditor to proceed first against the principal, only when his suretyship appears on the face of the instrument, or when he offers indemnity 289
An application of payments once made will not be varied so as to affect the liability of a surety 665
A surety holding collateral security for his indemnity is a trustee for the creditor, where the debtor is insolvent 508
A surety discharging the debt of his principal is subrogated to all the rights of the creditor 743
The assignee in bankruptcy, having paid a debt for which the bankrupt was surety, is subrogated to the rights of the creditor 289
PRIZE.
American ship trading, under enemy's pass, without permission from home government, is confiscable 227
Where, upon, ship's papers, enemy ownership is doubtful, condemnation will be delayed, though no claim is interposed 242
After a year and a day without claim made, condemnation is of course 242
A war vessel within signal distance of another, making a prize, is entitled to share, but is not a part of the “capturing force, so as to make it superior, and cause the prize to be divided equally with the government 116
When the “capturing force” is superior, within the act providing that in such case the prize shall be divided with the government 116
On interlocutory sales of prize, marshal must bring proceeds of sale into court, with a regular account 241
Vessel and cargo condemned for attempt toviolate blockade 763
PUBLIC LANDS.
The occupant law of Tennessee, so far as it violates the compact with other states by giving preference to its citizens over those of the other states, is void 1005
Actual settlement consists in clearing, fencing, and cultivating the land, and erecting a house fit for habitation and actual residence 543
Mere improvement, without occuricy and bona fide intention to reside, does not constitute a settlement 543
Title to lands by settlement, survey, etc., under Act. Pa. April 3, 1792 543
Land once occupied as a town site, but abandoned, may be taken up and held under the donation act as unoccupied public land 11671226
A certificate of location does not convey the legal title until the segregation of land is completed 429
Equitable title passes on entry and payment, though patent is not issued, and such land is liable to taxation 71
Grantees pendente lite from the original grantee of public lands are entitled to contest a survey, though the majority owners approve it 432
A patent for lands paid for by the father, but delivered to his son of the same name, who was described, by his residence, as the grantee, is valid until vacated for the mistake of description 300
Equity has no jurisdiction to affect a patent except upon the ground of an antecedent equity in the plaintiff, disregarded in the issuing thereof 1167
Questions of fact decided in the land department are not subject to review by the courts, except for fraud or mistake other than an error of judgment 1167
Whether a settler under the donation act upon unsurveyed lands could commute his residence under Act Feb. 14, 1853, and Act July 17, 1854, is a question of law, and the decision of the land department thereon may be reviewed at the suit of a party having a prior equity 1167
RAILROADS.
Statutes relating to the construction of the Baltimore & Ohio Railroad construed 574
A mortgage by a railroad of all property then in its possession or thereafter acquired includes railroad subsequently leased, and the title to such leased road is good in the hands of the mortgage trustees, as against assignees in bankruptcy of the mortgagor 841
A decree for plaintiff on a bill to set aside a railroad mortgage foreclosure, and subject the property to payment of their judgments, renders the foreclosure invalid only as to the creditors who filed the bill 862
Irrespective of city ordinances, speed of train” across streets should be such as to permit stoppage within reasonable time 827
When an engine is backing a train across city streets, there should be a lookout 827
Great care and vigilance is required where there is steam or smoke upon the track 827
A railroad company allowing trains of another to run over its track is responsible, as to its own passengers, in-the same manner as if all the trains belonged to itself 935
REAL PROPERTY.
Act N. T. March 24, 1797, to settle disputes as to titles to lands in Onondaga county, construed, and held valid 811
A perception of the esplees is evidence of seisin, but this is presumed under a deed 903
Under statute of uses, entry not essential to complete title 903
A tenant in common cannot, without consent of his cotenants, grant permits to others to cut timber on the premises 495
A purchaser at a tax sale by a tenant in common in possession, who is an agent of the other cotenants, will be held to be in trust for them 495
RECEIVERS.
Counsel's services to receiver are included within decree giving priority to claims for “labor in operation of the road 1080
Advances to pay wages of employes on condition of reimbursement out of first net earnings will be paid out of income in receiver's hands in preference to mortgage claims 90
REFERENCE.
Evidence not laid before referees cannot be exhibited to the court on exceptions to the report 984
Effect of auditor's report on reference of accounts in an action at law 945
RELIGIOUS SOCIETIES.
A church conference may consent to division of church into two bodies, which will carry with it a division of the common property 994
Commissioners appointed by one of such divisions may maintain bill against trustees of common property for a division 994
REMOVAL OF CAUSES.
Bight of removal.
In ejectment against a tenant, a nonresident owner, admitted as a defendant, is not entitled to a removal 1188
A suit commenced against “a foreign corporation in a state court by publication of summons as provided by law, followed by attachment of its property, may be removed, though the federal court could not originally have compelled submission to its jurisdiction 894
A suit against a bank to recover for neglecting to protest drafts forwarded by a correspondent bank, brought by an assignee of the right of action, is not a suit to recover the contents of a chose in action in favor of an assignee. (Act 1789, § 11) 894
Act Feb 5. 1867, authorizing removal for local prejudice, overrides section 11 of judiciary act as to suits by assignee 778
Time for removal.
Petition filed before trial, and at first term after passage of act of March 3,1875, is in time 472
Causes in Iowa being triable by law at the first term after service of process, such term limits the time for removal, though issue is not then formed 189
Proceedings to obtain.
A cause cannot be removed on petition of one of two defendants 1188
Petition for removal may be amended in federal court to conform to facts 778
Cause will not be remanded because bond filed under Act 1875, and duly accepted by state court, was in terms as required by Act 1866, 472
Effect of removal: Subsequent proceedings.
Filing of petition and bond, ipso facto, deprives state court of jurisdiction 1
Where removing party fails to file a copy of state court record, opponent may file it 1
An attachment of property made before the removal will continue to hold the property to answer the final judgment of the federal court 894
REVIEW.
Bill of review can only be sustained upon ground of error in the record, which does not include the evidence 809
SALES.
A contract to buy, made by a broker, on condition that the seller should get information as to the purchaser's financial standing, and, if unsatisfactory, accept security, is enforceable 103
Where the buyer does not accept a modification of terms of payment proposed by the seller after delivering the goods, the original terms remain in full force 10401227
The right of stoppage in transitu exists in favor of the seller of imported goods “to arrive,” entered in his name, and stored in a bonded warehouse 1191
The indorsement and delivery by the consignee of a cargo of coal en route of a bill of lading to purchasers at a certain price per ton, and its acceptance by them, is a sufficient delivery to pass title 201,506
That goods sold on credit were allowed to remain in the seller's warehouse, at option of purchaser, does not prevent the delivery being complete, a note being given for the price 911
Goods were deposited in a warehouse in the name of one to whom they were afterwards sold. Held, that no further delivery was necessary, and the seller's lien was lost 1013
Held otherwise where goods deposited in the name of another were sold to a third person, and no notice given of that fact 1013
Seller of goods delivered, where sale not complete because payment not made as agreed, may maintain replevin under Connecticut statute 1040
It is not necessary to the seller's right of reclamation that he should return the buyer's unaccepted promissory note 1040
Seller may sue before expiration of credit where goods were procured by false representations, and sold in fraud of creditors 927
The presumption is that the goods were sold for cash, or that notes taken were negotiable 927
A purchaser from one who bought corporate stock on a sale under an invalid decree of confiscation, after notice of the corporation's claim of invalidity, is not a bona fide purchaser 254
Party paying money in advance, to save a stipulated forfeiture for failure to pay the residue by a certain day, must use his best efforts to tender the balance 1079
Measure of damages for breach of contract to deliver goods is difference, if any, in price between the goods contracted for and the market price at the place of delivery 832
SALVAGE.
Right to salvage compensation.
Two vessels at anchor come in collision in a storm without fault. To prevent the destruction of both, one slipped the cable, and went ashore. Held not a salvage service 1161
Rescuing runaway slaves, destitute of food or water, adrift at sea, is a salvage service 1006
Regularly authorized and licensed pilots are entitled to salvage compensation where their services are extraordinary, and beyond the strict line of their professional duty 1136
Claim of one who floats and repairs abandoned stranded vessel is in the nature of salvage, and takes precedence of prior maritime liens, though such person held immature mortgage 885
Small tugs assisting, for less than an hour, a large tug in pulling off a steamship aground in a harbor, entitled to compensation as salvage service 463
Vessel is not liable for salvage services rendered under contract with a wrecking company in charge of the vessel 479
Forfeiture or reduction of salvage.
Wreckers who unnecessarily lighten a vessel, to magnify their services, forfeit all salvage 227
Salvage cannot be given by way of set-off when the finder of a whale adrift has throughout contested the title of the owner 966
Negligence of salvors in failing to make sounding resulting in a vessel being heaved off one shoal, and onto another, will reduce salvage 14
Amount.
Moiety is usually the highest compensation allowed 1192
A contract in a salvage case, not made under pressing necessity, will be enforced 1192
Rule of salvage fixed by contract is not imperative as to subsequent services 1192
Increased compensation will not be given on account of the employment of supernumeraries 14
Vessel is not derelict where master and crew voluntarily leave while in peril with bona fide intention of returning 191,1136
Moiety allowed where vessel abandoned and partly stripped was worked into port 9
Where vessel and cargo were of the gross value of $73,000,15 per cent of net value allowed 14
For saving cargo and material valued at $41,756, 30 and 50 per cent allowed 75
For saving vessel and freight valued at $3.500, salvors allowed $1,200 191
For piloting into port brig found among dangerous shoals, worth, with cargo, $12,000, wrecking vessel allowed $900 209
Small tugs, assisting in pulling off steamship worth, with cargo, $500,000, aground in harbor, allowed $1,200 463
For bringing into port ship and cargo worth $38,000, left by master and crew in peril, with intention of returning, pilots awarded $2,400 1136
Costs.
The costs of the proceedings for salvage compensation in rescuing runaway slaves in a stolen canoe are not chargeable to owner of canoe, but to owner of slaves 1006
Appeal.
On appeals in salvage cases, onus to prove mistake of law or fact is on appellant 1192
SCIRE FACIAS.
If some of the terre-tenants named in the sci. fa. are returned “nihil,” an alias sci. fa. must issue 460
Material variance between record of recognizance and recital of it in sci, fa. is fatal 866
SEAMEN.
The contract of shipment.
Seamen are competent to bind themselves by contract as to rate of wages 121
Contract introducing unusual terms must be explained to seamen, or it will be set aside 236
The stipulation that compensation by share in earnings shall be proportioned to the time served in the voyage will be enforced 121
Contract of shipment not in writing is not binding, and seamen may quit at any time, and demand highest wages paid at port (Act 1790) 236
Whaling voyage not within Rev. St. § 4520, requiring shipping articles to specify certain particulars 121
A hiring “for the season” of navigation is presumptively for the entire season 547
The “season of navigation” on the Great Lakes comprises the eight months commencing April 1st, and ending November 30th 547
A seaman receiving injury in performance of his duty is entitled to be treated and cured at expense of the ship, though compensation is by share in earnings 121
But such liability is usually limited to time necessary to enable him to return home 6201228
Expenses of care and cure of seaman on shore chargeable to ship which has no means to care for him 303
Consul cannot order discharge of seamen in foreign port, except upon consent given, which consent must affirmatively appear when such discharge is set up in defense to suit for wages 121
Words which might imply a discharge, when spoken in anger, where seaman is ordered next day to do his duty, do not amount to a discharge 280
Where seaman proves unfit for service for which he was shipped, he may be degraded 236
Penalty on master for permitting use of spirits contrary to articles 303
Services required.
A mate whom the master refuses to allow to act in that capacity need not act in any other station 115
Licensed pilot, employed to remain on vessel, to take her in and out of port, is subject to master's discipline, but not liable to ship's duty except when in charge as pilot 1198
Conduct of master or mate in respect to seamen.
Mate may be displaced by master for cause. Grounds 115
Master is not justified in ordering regularly employed pilot ashore, for failure to obey order to leave quarter deck 1198
Use of force to compel obedience of pilot held a trespass 1198
Master has authority to correct by corporal punishment the negligence or misconduct of any of the crew as such 587
Master has no authority to punish seamen creating ill feeling in another ship's crew, by false and malicious representations about their master 587
Mate is liable for striking in anger, and not as discipline, a boy. for using an opprobrious epithet in reply to a charge of theft 322
Wages-Eight to.
A mate unlawfully or unjustifiably displaced by master may recover full wages for voyage 115
Commissions of 2% per cent, for selling oil, and charges for fitting and discharging ship, disallowed in determining lay 1025
Interest allowed from filing of libel for lay in whaling voyage 1025
Seaman entitled to amount actually due at time of discharge where his assent was induced on payment of a nominal sum, from just apprehension of ill treatment 1025
The amount he received by shipping in mother vessel cannot be considered 1025
A seaman wrongfully discharged is entitled to an indemnity, in ascertaining which subsequent expenses and earnings nay be considered 1025
Seamen, in whaling service, discharged ibroad, are entitled to benefit of statute jiving three months' extra wages 1025
—Remedies for recovery.
Seamen have lien on vessel, notwithstanding charter party bound charterers to pay rew 3
Lien will be held to have been waived by aking note from master, and nine months' lelay 576
Lien lost by unexplained delay of four ears, where rights of bona fide purchasers atervened 2
Incidental condition of contract to work in shore does not deprive seamen of lien 3
Mate may sue for wages the same as sealan 115
No set-off allowed on libel for wages, exept a payment on account 410
Wages-Deductions: Extinguishment, etc.
British seaman does not forfeit wages by coming on shore to legally demand payment 280
Leaving vessel before expiration of time of service, without consent of master, with intention not to return, constitutes desertion, and forfeits antecedent wages, unless reasonable excuse is shown 547
The fact that meat used on board was for a short time slightly tainted is no excuse for desertion 547
Sickness is an excuse for leaving vessel 937
Master of whaler has no right to charge commission on money paid to crew on voyage 303
SERVICES.
In the absence of any contract, between brother and sister living together, to pay her for domestic services, she has no claim on him for such services 976
Where value of extra work has not been fixed by arbitration, as agreed in building contract, evidence of such value may be given in action upon a quantum meruit 464
SET-OFF: COUNTERCLAIM.
In an action by an insolvent for the use of his trustee, defendant may set off plaintiff's note to a third person, coming to his hands before the insolvency 759
It is a good ground of exception to a claim in reconvention that it has been substantially adjudicated between the same parties in another state, where it was pleaded as a counterclaim 906
A claim in reconvention should be pleaded with the same precision and detail as an original cause of action 906
SHIPPING.
Public regulation: Title to vessel.
Unless a proper manifest be tendered to the collector by the commander of the vessel, the collector is not bound to grant a clearance 987
Production of certificate of compliance with state inspection laws not necessary to entitle to clearance 988
Exportation of American produce in American vessels to British ports on the continent not enumerated as open ports not unlawful (Act March 1, 1823) 132
It is not a foreign voyage if the delivery of the cargo is made within United States waters, though to a British subject residing on the British side of the stream 132
The register of a vessel is not Per se, evidence of ownership 988
Employment of vessels.
Vessel chartered by a person to carry out his agreement to transport cargo for a certain company is liable in admiralty for breach of the contract 170
Shippers must notify carriers of their wishes as to stowage where they consider the notorious custom of stowing such goods hazardous 1048,1053
Passengers on steamship entitled to reasonable accommodations and conveniences, irrespective of the class in which they travel 383
Contract of carriage by second cabin, when considered broken by reason of overcrowding, and lack of reasonable accommodations, and damages therefor 383
The master.
Has no lien for wages 983
Remedy to enforce payment for services in performance of pilot's duties is in per sonam, and not in rem 9831229
Remedy for advances for supplies and repairs is in personam 883
Cannot assert a lien for additional pay for standing on watch as pilot 983
Is liable for all injury caused by unlawful displacing of mate 115
Cannot buy cargo at his own sale as agent of owners 817
Cannot claim a lay in oil made by part of his crew, left behind after the ship is fully loaded, and brought home by another vessel 303
An agreement for a certain lay on securing a full cargo of oil is enforceable where a full cargo is secured, but not the number of barrels named 303
Master giving another ship-master, brought home by him, a receipt for passage money in a larger amount than actually received to enable the latter to charge the sum to his owners, liable for full amount of receipt 303
No account against a vessel is chargeable against a master unless presented within a reasonable time 410
Liens-Generally.
No court can by rule create maritime liens or change the order of existing liens 513
The general maritime law gives a lien for a maritime tort upon the offending vessel which travels with the vessel, into whosesoever hands she may go, and irrespective of the place of transfer 255
—For repairs and supplies.
A vessel registered in New York was bought by a resident of “Washington, D. C., for use on the Potomac river, and was repaired and supplied in Connecticut on the credit of the vessel. Held, that there was a lien as for repairs and supplies in a foreign port 515
Ships, whether domestic or foreign, liable for repairs, etc., furnished at express or implied request of owner or master, whether in home port or not (Adm Rule 12, as amended 1872.) 209
Ship carpenters employed by contractor have lien, unless there is express or implied notice that they must look only to the contractor 209
A libel by employes of a contractor, which fails to allege that the contractor had authority to make the repairs or to employ libelants, is insufficient 209
Mere proof that sails were furnished by written order of master, with directions to charge them to the vessel and her owners, is not sufficient to establish lien for supplies 1101
—Priority and enforcement.
Mortgage lien (Rev St § 4192) is inferior to all strictly maritime liens, but is superior to subsequent liens given by state legislature for supplies in home port 513
Proceeds of sale of vessel may be applied in extinguishment of mortgage, though it cannot be foreclosed in equity 983
A remedy given by the general maritime law may be enforced against a vessel, although she was seized and sold under a state statute 10
Waiver, discharge, and extinguishment.
Notice to purchaser will keep lien alive if sufficient purchase money remains unpaid to meet it 73
Purchaser of vessel is bound to exercise reasonable diligence to ascertain nature and amount of existing liens 73
As against bona fide purchasers without notice, lien for repairs and supplies in foreign port, held not lost by eight months delay to enforce it 515
Liens—Under state statutes.
A state legislature cannot create a lien upon a vessel which shall have priority over one already existing under an act of congress 513
Sale of vessel under decree of state court, in satisfaction of lien under state law, extinguishes prior maritime liens, and is binding on courts of other states 238
SLAVES.
When deed of, not invalidated by removal 702
Importation from Virginia to District of Columbia held not contrary to law 1037
Finding of 300 Africans on board a vessel held sufficient proof of probable cause for issuing warrant of arrest for engaging in slave trade 1015
SPECIFIC PERFORMANCE.
Sufficiency of execution of deed of infant by guardian under decree for specific performance 737
STATES.
A state may by contract give certain persons exclusive privileges 580
STATUTES.
Act not void because its title misrecites the date of the act to which it is supplementary 574
Act not void because its title purports it to be an act supplementary to an act which expired by its own limitation, where such act was subsequently revived 574
Implied repeal not inferred by omission of short expression in repetition in supplemental act of section of former statute 37
Relating to construction of state roads and canals construed according to their spirit, though seemingly contrary to their letter 784
An authority to appropriate private lands will be implied as necessary to effectuate the object of the statutes providing for the construction of state railroads and canal 784
TAXES.
Individual property held within the state may be taxed by the state The property of the Bank of the United States is no exception 692
Land purchased from the United States, and paid for, is liable to taxation, though patent not issued 71
Exemption of Atlantic & Pacific Railroad Company from taxation under Mo Act Dec 25, 1852 173,365
Back taxes on realty (in Missouri) cannot be collected from the personal property of a subsequent purchaser 173
The corporation of Alexandria has a right to collect taxes by distress and sale and to raise taxes for purposes and works out of the town 1108
Replevin lies for property seized by a tax collector under void assessment 173
TELEGRAPH COMPANIES.
Not authorized by acts establishing post roads, or Act July 24, 1866, to establish lines over right of way of railroad company without making compensation 176
TENDER.
A declaration by a person that he will not receive money about to betendered excuses its production.8181230
A tender to the pledgee of a vessel, who has bought her at an attachment sale, by another creditor, must include the expense of repairs made by him 818
TREATIES.
The right to reside in the United States, given by treaty, implies the right to labor there, which right the states have no power to restrict 472
TRESPASS.
In an action for a tort to personal property, possession, accompanied by an assertion of ownership, is prima facie evidence of property 988
TRIAL.
An action to recover for payments due under a railroad construction contract is not local 280
Plaintiff in an action at law cannot be ruled to trial without notice where defendant has filed a bill in equity on the ground that the remedy at law was not adequate 768
“Where one of joint defendants offers ready for trial, plaintiff cannot continue until the other is taken, but may amend 637
Party holding affirmative of issue has right to open and close argument 1119
On a plea of tender, etc., defendant has right to open and close 215
The court will not give an instruction unless justified by the evidence Rules of determining such fact 601
Question of usury in written contract is for court 750
Court cannot, upon a special verdict, infer facts not actually found 615
Upon a demurrer to evidence, judgment not rendered for plaintiff if declaration substantially defective 733
TRUSTS.
Trustees under an assignment of assets for certain purposes cannot vary its terms and accept payment of debts in a manner not contemplated therein 687
The legal estate passes by a deed of bargain and sale made by a trustee, whether the terms of the trust are complied with or not 686
There can be no disseisin of a trust, though the exercise of an adverse possession for a great length of time may in equity bar it 495
Time begins to run against a trust only when its open disavowal is clearly and unequivocally made known to the cestui que trust 495
Jurisdiction of courts of equity over trusts, and of the appointment of agent 804
Trustees are entitled to commissions of 5 per cent on money passing through their hands 31
USURY.
III Act 1857, in relation to interest and usury, construed 911
The statute of usury applies to contracts of corporations 607
The discount by a bank of a note made directly payable to itself is not usurious 679
Compound interest is not illegal, and may be recovered when a part of the contract 407
Charging interest on balances of running accounts, regularly transmitted according to custom of trade, is not usury 777
Taking 64 days' discount on a 60 days' note is not usury 691
Treating a note as discounted on the day of its date, where proceeds were not carried to the credit of the party until later, is not usury where checks were previously drawn against it 750
Usury cannot be set up or bill to set aside mortgage unless it is alleged 521
Assignee in bankruptcy is not a “legal representative” within statute allowing recovery of penalty from national bank for usury 880,901
Nor is an indorser of a bill of exchange such “legal representative” 880
WAR.
License from blockading squadron to neutral vessel carrying provisions will not authorize refusal of clearance unless illicit intercourse contemplated 988
Party failing to remove the suspicions by evidence in his power, is not entitled to damages for refusal of clearance 988
WATERS.
A riparian owner on navigable but nontidal stream is presumed to own the land to the center line of the stream 245
An alteration in the course of a navigable stream which deprives a riparian owner of its use as an incident to his land is a taking of private property for which compensation must be made 245
WILLS.
An executory devise held good, and to take effect on the happening of the contingency 1172
A general testamentary disposition of all one's “estate, real and personal,” to his “heir at law,” by one who has no realty, is not a disposition to the next of kin 37
“Heir at law,” when used in context as a synonym with “lawful heir,” does not create an ambiguity, and must be held to mean in Pennsylvania, where testator was technically domiciled, though resident most of his life in England, the person on whom the law of Pennsylvania casts an intestate&s estate at the time of his death, though testator evidently meant otherwise 37
A bequest of slaves on condition that they be not carried out of the state or sold, in either of which events said slaves are to be free, is a conditional bequest of freedom, and valid as such 7
Upon a devise that a slave should be sold for eight years, after which he should be free, the term begins to run from testator's death, or within a reasonable time there after 1096
WITNESSES.
Maker of note cannot be compelled to testify for plaintiff in an action against the indorser, but his letter to plaintiff inclosing note for discount is admissible 754
When a certificated bankrupt who has released all future claims upon his estate is a competent witness 858
The assignor of the patent is not competent to prove priority upon an interference declared 954
Grantor in deed collaterally introduced, in cause inter alios, is competent to prove that the deed was fraudulently obtained 631
Maker of note is competent for indorser 631
A stockholder in a company which itself owns stock in plaintiff company is competent for plaintiff 614
Wife of one of defendants not competent for plaintiff, though husband has been discharged under insolvent act 6141231
A creditor of a firm is competent to prove its existence 614
The cashier of a bank is competent to prove that defendant has overdrawn his account 607
In an action by the indorsee against the maker of a note, the indorser is competent to prove an acknowledgment to remove the bar of the statute of limitations 600
One interested in result of suit is not competent 429
A witness may be competent to testify to general reputation of pedigree, though not one of the family or intimately acquainted with it 583
A bookkeeper of a bank is not obliged, in an action between the bank and a depositor, to answer a question, where the answer might charge him with a loss 741
Counsel may testify as to facts not communicated to them in confidence by their clients 631
Counsel for bankrupt cannot be required to disclose information as to affairs of bankrupt obtained from him or persons referred to by him 64
“Witnesses can testify on affirmation only when members of a religious society professing to be conscientiously opposed to oath 647

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