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1201
3 FED.CAS.—77
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
ABATEMENT AND REVIVAL.
| The administratrix and infant son and sole heir of defendant in the original bill are proper parties to a bill of revivor | 309 |
| The only questions upon bill of revivor are as to its form and the competency of the parties. Objections cannot be taken to the original bill | 309 |
ACCOUNT.
| Reliance by defendant upon the credit side of an account held a prima facie admission of the debit side | 100 |
ADMIRALTY.
| Jurisdiction—In general. | |
| Admiralty has jurisdiction of petitory as well as possessory actions | 629 |
| Admiralty has no jurisdiction of a claim for state and county taxes assessed against a steamboat | 1134 |
| A party cannot have remedy in admiralty for matters of account unless upon the basis of an adjusted and recognized liability | 1177 |
| _____Persons and property. | |
| Admiralty may take cognizance of controversies of maritime nature between foreigners, transiently within court's jurisdiction, but is not bound to take jurisdiction | 41 |
| _____Affreightments; charter parties, etc. | |
| A contract between a passenger and the master of a vessel for passage is not cognizable in admiralty | 1122 |
| _____Repairs and supplies to vessel. See “Maritime Liens.” | |
| Admiralty will take cognizance, under a local law giving a lien on vessels, of all con tracts or charges of an admiralty or maritime nature, though no lien was given by the general maritime law; but otherwise as to contracts or charges not of an admiralty or a maritime nature | 876 |
| Admiralty has no jurisdiction of a claim for repairs to a canal boat navigating the interior canals of a state, and repaired at a point on a river where the tide ebbs and flows | 876 |
| _____Torts. | |
| Admiralty has jurisdiction over a person al tort committed on hoard a vessel in a harbor where the tide ebbs and flows | 897 |
| The district courts in admiralty have jurisdiction of torts committed on the high seas, without reference to the nationality of the parties or vessel | 279 |
| Such jurisdiction declined in suits between foreigners, where justice would be as well done by remitting them to their home forum | 279 |
| But, where the suit is between subjects of different governments, jurisdiction will not be declined | 279 |
ADVERSE POSSESSION.
| By the common law, land held adversely cannot be conveyed | 1076 |
| A settlement upon public land without authority of law held a trespass | 1112 |
AFFIDAVIT.
| An affidavit entitled as in a cause pending, but taken before it existed, cannot be read in evidence with such title, nor after the title is rejected, if the absence of the title renders material portions meaningless | 615 |
AFFREIGHTMENT.
| See, also, “Admiralty;” “Charter-Parties;” “Shipping.” | |
| The vessel is not entitled to freight pro rata at intermediate port unless cargo is received by owner, though she is unable to proceed | 902 |
| The owner of cargo preventing its transportation from a port of distress is liable for full freight | 902 |
| A permanent embargo excuses performance; a temporary embargo suspends it | 902 |
| A contract for transportation on the Great Lakes may be performed by a land conveyance in case of obstruction | 902 |
| A shipper may recoup damages from the freight money | 1180 |
ALIENS.
| An alien holding land under a special law of a state may sustain a suit in the circuit court relating to such land | 821 |
ALTERATION OF INSTRUMENTS.
| Erasing the words “after date,” in a printed blank, following “on demand,” will not avoid a note | 402 |
| The addition of the names of others as joint makers to a promissory note will not avoid it | 402 |
APPEAL AND ERROR.
| No appeal lies from the judgment of a justice of the peace for a penalty for violating a by-law of Georgetown | 891 |
| A writ of error is not a supersedeas, unless a copy of it be lodged for the adverse party in the clerk's office within the 10 days | 154 |
| The proceedings and judgments of the district court in actions at law cannot be reviewed where the facts are controverted and no case is stated for the opinion of the court | 574 |
| In salvage cases, the court on appeal will not alter amount of salvage upon slight grounds | 932 |
| Summary judgment can be rendered against the sureties on appeal bond where the decree in a circuit court is for a sum not sufficient to allow an appeal to the supreme court | 667 |
1202
APPEARANCE.
| Appearance of counsel for defendants waives notice of injunction | 110 |
| Where defendant in equity has appeared by a solicitor, notice of application for a decree, after an order pro confesso, must be given such solicitor | 229 |
APPRENTICE.
| The orphans' court of Alexandria county has power to bind out orphan children without indentures | 102 |
| The statute and constitutional provisions for the rendition of persons held to labor include apprentices | 776 |
| A person binding himself as an apprentice, with the assent of his father living in another state, may be arrested and remanded as a fugitive from labor | 776 |
ARMY AND NAVY.
| The power of congress to provide for the government of the land and naval forces “in peace and war” is not affected by amendments to the constitution | 796 |
| Congress has power under the constitution to provide for punishment by naval court-martial without indictment or the in tervention of a jury | 796 |
| A court-martial is a lawful tribunal existing under the constitution and acts of congress, and is supreme while acting within the sphere of its exclusive jurisdiction | 796 |
| A paymaster's clerk may be tried by court martial for an offense committed while on duty in the navy, upon proceedings commenced after his dismissal | 796 |
| The status of a soldier is not affected by a sentence of court-martial discharging him from service, subsequently set aside | 425 |
| A soldier, if arrested before the expiration of his term of enlistment, may be held for trial thereafter by military authority | 425 |
| Under article of war 88, a soldier may be arrested and tried, after the expiration of his term of service, for a military offense committed during such term | 425 |
ARREST.
| Nonresident party defendant cannot be arrested (in North Carolina) on mere affidavit in action for injury to person or character | 261 |
| One arrested after the adoption of the supreme court rule abolishing imprisonment for debt, but before its publication, is entitled to be discharged | 109 |
| A recommitment of debtor upon ca. sa. is not a breach of the debtor's privilege as a witness and party bound to attend court | 375 |
ASSIGNMENT.
| The transfer of a bankrupt's effects in England, being an assignment merely by operation of law, will not enable the as signees to maintain an action in their own name in the courts of this country | 681 |
ASSIGNMENT FOR BENEFIT OF CREDITORS.
| See, also, “Bankruptcy;” “Insolvency.” | |
| An assignment with preferences, made by two members of a firm, in the absence and without the knowledge or consent of the third, who had previously refused to give preference, is not valid as to him | 1049 |
| An assignment, fraudulent as to creditors, does not in law oppose any obstacle to the enforcement of their legal rights | 76 |
| An assignment for the benefit of creditors held to take priority as against subsequent attachment of goods held by an other on consignment | 327 |
| An assignment by a person while laboring under the immediate effects of intoxication will not be favored in a court of equity | 1049 |
| Unlawfully preferred creditors have no priority as against a mortgagee equally preferred, but not enforcing his mortgage to their prejudice | 1049 |
| Quaere, whether the assignee of an in solvent can sue, in his own name, in a foreign jurisdiction | 1132 |
ATTACHMENT.
| To obtain attachment (Act Md. 1795, c. 56), it is not necessary that all plaintiffs should make affidavit, nor that they appear to be citizens | 424 |
| An affidavit made before a judge in another state is not good without a certificacate of authority to administer the oath | 820 |
| An attachment, on mesne process, is not a lien in the sense of the common law | 138 |
| The writ and capias may be amended by inserting given names of plaintiffs | 424 |
ATTORNEY AND CLIENT.
| The discretion to remove or suspend an attorney should be exercised with great caution | 1167 |
| Counsel fees, as such, are not recoverable without express agreement, but otherwise as to reasonable fees and expenses | 591 |
| An attorney may recover for services in a litigation ordered to be prosecuted by a city, and conducted in its behalf, with notice of his employment, where it accepts the benefits thereof, though without express contract | 591 |
AVERAGE.
| A removal in a port of necessity, for the purpose of repairs, of perishable fruit, which increased an incipient decay and precipitated an entire loss, is not a matter for general average | 845 |
BAIL.
| By the Pennsylvania practice, filing the declaration before the return of the writ is not a waiver of bail | 784 |
| A recognizance of bail taken out of court is only de bene esse, and does not discharge the marshal | 231 |
| Where defendants are not liable to be imprisoned on the judgment, the special bail is not bound to surrender them in his discharge | 65 |
| An exoneratur on the bail piece, on the ground that the defendant was confined in the hospital as a lunatic, refused | 1067 |
| The court will not relieve the appearance bail, upon his delivering the principal in court, unless he put in and perfect special bail | 785 |
| The engagements of special bail and appearance bail are of a different nature. Because the former may deliver up the principal before the second sci. fa., it does not follow the latter may do so | 785 |
| The undertaking of the appearance bail can be fulfilled only by defendant's giving special bail, if so ruled, and that bail justifying, if excepted to | 784 |
1203
| In an action on the recognizance, the bail may plead discharge of principals under state insolvent laws | 65 |
| A discharge of the principal under an in solvent law is ineffectual to release the bail when not produced until the third term after the return of a sci. fa. against the bail | 1103 |
| That no ca. sa. was issued against the principal held a good plea in bar in sci. fa. against bail | 277 |
| A surrender of the principal will not be received after the return term of the sci. fa. against the bail | 1102 |
| It is not necessary in a suit on a bail bond to state defendants to be citizens of a different state from that of plaintiff | 788 |
| To a suit by the assignees on the bail bond, defendant may plead that the principal was not a citizen of another state, as laid in the original declaration | 788 |
| The plea of comperuit ad diem affirms a legal appearance | 787 |
| A replication nul tiel record to a plea comperuit ad diem in an action by the assignee of a bail bond presents an issue | 787 |
| Proper conclusions to a replication of nul tiel record | 787 |
| If the real amount of the debt is controverted after judgment on a bond, the court may direct a writ of inquiry to ascertain the amount, or direct an issue to be made up and tried at bar | 788 |
BANKRUPTCY.
| Operation and effect of bankrupt laws and proceedings thereunder. | |
| An attachment on mesne process, before commencement of bankruptcy proceedings, is ineffectual to control the bankruptcy court, and further proceedings in the suit will be enjoined | *138 |
| A district court in bankruptcy may restrain sale of bankrupt's property on process of state court levied before bankruptcy proceedings | 1 |
| An attachment is ipso facto dissolved by proceedings in bankruptcy commenced with in four months, in which the debtor is adjudged a bankrupt | 1120 |
| The creditor is liable to the assignee for the proceeds of the attachment sale, though the assignee did not appear or defend the suit | 1120 |
| The rights of creditors, after a surrender of the assets to the assignee in bankruptcy by the assignee, under a state law, are to be determined under the provisions of the bankrupt law | 1016 |
| A sheriff paying over proceeds of attachment sale, after proceedings in bankruptcy commenced, held not liable to the assignee | 1151 |
| A creditor receiving the proceeds of a sale on attachment, after proceedings in bankruptcy, may be compelled to pay the amount to the assignee, by an action in the federal court | 1151 |
| A bona fide entry of judgment and levy of execution before proceedings in bankruptcy is not affected thereby | 282 |
| Bankrupt not amenable to process for judgment for costs in state court | 913 |
| Jurisdiction of courts. | |
| Where a corporation is created under the laws of two states, the bankruptcy court which first exercises jurisdiction will be permitted to carry the proceedings to their final conclusion without the interference of the bankruptcy court in another state | 946, 951 |
| A bankruptcy court will not set aside a stipulation discontinuing the bankruptcy proceedings given upon a release procured by fraud until relief is sought in a court having jurisdiction to set aside the release for fraud, or to award damages | 339 |
| Petition of merchant failing in business in New York, who moved his family to New Jersey, but continued with his successors as clerk, is properly filed two years later in southern district of New York | 79 |
| Where petitions are filed in two or more district courts, each having jurisdiction, the court in which the petition is first filed will be accorded exclusive jurisdiction | 946, 951 |
| The jurisdiction of the district court in bankruptcy to sell real estate and pay off liens is not exclusive | 1067 |
| The bankruptcy court, being always open, and having no separate terms, may vacate orders and decrees if no vested rights are disturbed | 1020 |
| The district court has no jurisdiction of a summary petition by a mortgagee for the sale of mortgaged property in the hands of receivers appointed by the state court, not parties to the petition | 1153 |
| A party holding a judgment entered in an action for tort after commencement of the proceedings need not apply to the bankruptcy court for leave to enter execution | 504 |
| Register—Powers and duties. | |
| Power of register to employ watchman to guard the bankrupt's property | 803 |
| Register may make order requiring assignee to file account required by section 28, Act 1867 | 121 |
| Commencement of proceedings—Voluntary bankruptcy. | |
| An infant is entitled to the benefit of the bankrupt act, and the proceedings may be had in his own name | 867 |
| Separate petitions of members of bankrupt firm held not allowable | 1107 |
| Petition by surviving partner not allowed against objection of creditors and discontinuing solvent partner | 209 |
| _____Involuntary bankruptcy. | |
| A creditor holding a secured debt may petition | 733 |
| In computing the quorum of creditors, debts secured and debts barred by the statute must be eliminated, and all offsets due the debtor deducted | 1019 |
| The petition in invitum must allege that the debtor was a trader when he committed the act of bankruptcy | 854 |
| Petition will be sustained if the aggregate of all the petitioner's debts equal one-third of the aggregate of all provable debts | 266 |
| Where petitioners who hold debts exceeding $250 do not represent one-third of all provable debts, every $250 creditor sinks into a common unit in the mass of creditors, and counts but one | 570 |
| The court on trial before a jury as to the facts of bankruptcy may permit amendment of the creditor's petition | 412 |
| A person not actually a copartner cannot be adjudged bankrupt upon petition of a pretended copartner | 292 |
| Lawful solicitation by a debtor to induce his creditors to sign a petition against him in involuntary bankruptcy is permissible | 1019 |
| A creditor not a party to the petition cannot move to dismiss the same | 956 |
| Acts of bankruptcy. | |
| Inability to pay debts as they mature, in the ordinary course of business, constitutes “insolvency” | 412, 495 |
| Suspension of payment by solvent trader for 14 days is an act of bankruptcy | 412 |
| The appointment by a state court of a receiver, for the purpose of paying debts, defeats and delays the operation of the act; and, where procured by the debtor, he must be presumed to have intended such effect | 412 |
| The giving of a warrant of attorney to confess judgment for full consideration is not an act of bankruptcy, though the war rant was not recorded | 493 |
1204
| The intent will be inferred from the fact that an act of bankruptcy gives a preference, unless the contrary is shown | 495 |
| The allowance of a judgment by default by an insolvent firm in favor of the brother of a partner held an act of bankruptcy | 495 |
| A mere security, though given as a preference. is not an act of bankruptcy, unless given in contemplation of bankruptcy | 854 |
| The giving of a judgment, followed by execution, is not an act of bankruptcy, unless the debtor was insolvent or it covered his whole effects | 854 |
| The motive of petitioners and of one of debtors co-operating will not be considered where the acts of bankruptcy are established | 412 |
| Adjudication. | |
| An adjudication in one state, made between the time of signing and filing an adjudication in another state, is prior | 951 |
| An attaching creditor may move to set aside an adjudication of bankruptcy, though no party to the bankrupt proceedings | 266 |
| Assignee—Appointment and removal. | |
| The son of the bankrupt will not be appointed assignee where he will be obliged to investigate the claims of other members of the family | 803 |
| A register should state to the judge any known ground of disapproval of the appointment of an assignee | 705 |
| The court will decline to approve an assignee selected by, or in the interest of, the bankrupt | 705 |
| The court in a state in which the bankrupt corporation held property and carried on business should decline to approve the election of assignees in another jurisdiction where its state is not given a representative | 956 |
| The register may, upon request, in writing, of a creditor who has proved his claim, require the assignee to give bond | 418 |
| Involving the estate in unnecessary litigation, if caused through erroneous legal advice, is no ground for removal | 716 |
| _____Powers and duties. | |
| An agreement by two of three assignees is not binding upon the absent assignee in the absence of previous authority or ratifition | 699 |
| An assignee is accountable only to the court appointing him | 1067 |
| Property of bankrupt—What constitutes. | |
| A divorce obtained by a wife prior to the discharge of her husband gives his assignee no claim in land held by the husband and wife in entirety at the time of the adjudication | 236 |
| Assignee not vested, by mere force of adjudication in bankruptcy and his appointment, with title to property assigned by bankrupt for benefit of creditors | 83 |
| An assignee procuring a general assignment to be set aside, as in contravention of the bankruptcy statutes, takes title from the assignee | 75, 76 |
| A recovery on a wife's chose in action by the assignee, substituted in place of the bankrupt, in a pending suit, held, to inure to the benefit of the creditors | 1089 |
| _____Exemptions. | |
| The individual members of a firm are not entitled to a separate exemption of $250 out of undivided partnership property (in Michigan) | 720 |
| Individual members not entitled to exemption from partnership stock | 892 |
| An adjudication of bankruptcy against a partnership operates as a dissolution, and nothing can be set apart as exempt to the bankrupts as a firm | 720 |
| Bankrupt held entitled to homestead exemption out of proceeds of equity of redemption of mortgaged farm, sold free of such right | 62 |
| A vested expectancy to the estimated present value of 8300 is exempted in Pennsylvania | 211 |
| _____Liens. | |
| A bank whose by-laws provide that stock of stockholders shall be liable for their debts to the bank has a lien upon the stock of a member of a bankrupt firm for either individual or firm indebtedness | 341 |
| A petition to enjoin enforcement of a judgment against the bankrupt's property can be filed, before the appointment of assignees, only by the bankrupt, and, after such appointment, only by the assignees | 1067 |
| Where a general assignment is valid as to the debtor and creditors, but is avoided by assignee in bankruptcy as in contravention of the bankruptcy statute, such assignee has a superior right to judgment and execution creditors intervening between the assignment and the petition in bankruptcy | 76 |
| The assignee in bankruptcy procuring a general assignment to be set aside, as in violation of bankruptcy act, held estopped by a judgment against the assignee for creditors in favor of a she riff declaring the assignment fraudulent as to creditors | 75 |
| A lien which is superior to all other liens will be paid as far as possible out of the fund on which it is the only lien | 1072 |
| Receiver will not be appointed of bankrupt's mortgaged lands after appointment of assignee | 206 |
| Register's assignment to assignee of estate of bankrupt in mortgaged lands divests mortgagee of possession | 206 |
| Property of bankrupt is subject to execution of creditors until decree made | 203 |
| An attachment of property on mesne process, bona fide made, before a petition filed in bankruptcy by the debtor, is not a lien or security upon the property. (Act 1841. § 2) | *138 |
| Judgment recovered after assignment for creditors valid by state laws creates no cloud or title, though assignment is afterwards set aside at suit of assignee in bankruptcy | 83 |
| Where leave has been granted (Rev. St. § 5106) to proceed in a pending cause. a judgment obtained therein is valid, although the assignee is not made a party | 1016 |
| Proceedings to determine validity of exetion lien expedited on request of creditor who surrendered possession of property to assignee | 10 |
| Such proceedings not conducted on ex parte affidavits | 16 |
| _____Sale. | |
| A creditor applying for an order to sell collaterals need not ascertain their value before proving his claim, but must prove, his claimbefore order to sell will be granted | 343 |
| An assignee will not be required to sell property incumbered for more than its value | 1067 |
| A sale of land free from incumbrances does not pass to the purchaser the bankrupt's right to any portion of the growing crops as rent | 686 |
| Where property is sold free from mortgage lien, the court has no authority to adjust the rights between the trustee under the mortgage and his cestui que trust | 750 |
| A sale of stock held by a creditor as collateral security at two-fifths of its value set aside, and the resale ordered | 1012 |
1205
| Bankruptcy court may order bankrupt to deliver possession of his realty sold under deed of trust | 314 |
| Proof of debts. | |
| An equitable debt is provable | 669 |
| An indebtedness to a cestui que trust is provable | 669 |
| A verdict in an action for tort is not provable | 504 |
| A judgment entered in an action for tort after commencement of bankruptcy proceedings upon a verdict previously rendered is not provable | 504 |
| A suit and judgment against a bankrupt on a fiduciary debt does not preclude the creditor from proving it | 1003 |
| As regards proof of debts, secured and unsecured creditors stand upon the same footing | 1067 |
| A secured creditor may prove his debt for the overplus, and vote on such amount | 820 |
| The bankrupt's wife may prove as a debt moneys realized by the bankrupt out of her separate estate | 669 |
| The wife of a bankrupt held entitled to prove the balance of a long-standing debt, but without interest | 347 |
| Claim of wife for loan to bankrupt out of her separate estate cannot be proved by bankrupt | 16 |
| A mortgage, whether of realty or personalty, given contrary to the provisions of section 39. is void, and deprives the mortgagee of the right to prove his claim, even on its surrender | 401, 405 |
| Separate proofs of same debt to its full amount may be filed against individual members of firm | 64 |
| A bank having discounted a note made by a firm to one of the partners, and in dorsed by him, is entitled to prove the debt against the estate of the firm and of the individual partner | 1135 |
| The form of the security or evidence of indebtedness taken will not prejudice the legal rights of a creditor | 1135 |
| Assignee ordered to furnish bankrupt a list of creditors who have proved debts | 581 |
| Where a question of law or fact is raised in respect to the sufficiency of proof of a debt, it must be certified for the decision of the judge | 802 |
| The assignee is not bound by the amount found due the ward of the bankrupt in a suit in the chancery court commenced after the adjudication, to which he was not a party | 1003 |
| Payment of debts: Priority: Dividends. | |
| Judgment creditor of firm is not entitled to dividends out of separate estate of each member on an equal footing with separate creditors | 283 |
| Separate creditors are not entitled, as against firm creditors, to be paid interest on their debts subsequent to the adjudication | 283 |
| A creditor proving a joint and several claim against the bankrupt members of a firm separately is entitled to dividends out of the several assets | 345 |
| Agreement by assignees to give a preference when valid | 699 |
| Restriction of proof of debt of a preferred creditor to a moiety is limited to cases of actual fraud, and not to cases of mere knowledge that a preference was intended. (Act June 22, 1874. § 12) | 500 |
| An attempt to gain a preference which entirely failed will not subject the creditor to the penalty of the statute as one who knowingly receives a preference | 1013 |
| United States, recovering a judgment upon a claim accruing after the commencement of the proceedings, is entitled to priority, and no proof of claim need be made | 1016 |
| A creditor, by filing a petition without reference to a lien held by him, waives such lien | 733 |
| Unclaimed dividends not awarded to bankrupt's administrator after many years when opposed by creditors whose claims were not paid in full | 697 |
| Interest upon claim accruing after the commencement of the proceedings is allow able | 1016 |
| Examination of bankrupt, etc. | |
| Creditors whose claims have been protested against, if duly proved, will be entitled to an order for the examination of the bankrupt | 82 |
| Orders for examination are summonses under section 26, and may be issued by blank forms, signed by the clerk | 121 |
| A bankrupt must answer questions put to him in relation to property in which it is shown that he might possibly have an interest | 849 |
| Any one possessing information may be examined concerning the same matter in reference to which the bankrupt may be examined | 585 |
| Order to show cause why attachment should not issue will be granted where wife of bankrupt refuses to testify | 135 |
| In the examination of a witnesss the register has no power to decide on the materiality or relevancy of questions | 834 |
| Costs: Fees: Disbursements. | |
| An estate is not liable for counsel fees in opposing involuntary bankruptcy, and for drawing inventories, order of adjudication, etc | 345 |
| Where the estate of a bankrupt which is all incumbered is sold at the suggestion of his general creditors, and produces only enough to satisfy the liens, the proceeds are only liable for the costs of sale | 750 |
| Register is entitled to fees on proceedings for a discharge as for services “while actually employed under a special order of the court.” | 124 |
| Review. | |
| The nature of the revisory power given the circuit court (Act March 2, 1867) considered and stated | 407 |
| The jurisdiction conferred upon the circuit court by section 2, Act 1867, is revisory, and confers no power to execute the decrees of the district court or to assume primary exercise of jurisdiction conferred on the district court by section 1 | 410 |
| A bankrupt seeking a review, and at the same time prosecuting suits in a state court to restrain proceedings in the district court, will not be required to elect | 411 |
| On petition for review, decree in favor of assignee in summary proceeding to recover assets set aside for irregularities | 849 |
| Appeal cannot be allowed where bond not given within 10 days, as required by section 8 | 189 |
| Appeal bond failing to state the court rendering the decree is insufficient | 189 |
| Discharge—Proceedings to obtain. | |
| The assignee's return is not necessary before granting order to show cause why discharge should not be granted | 121 |
| Failure for over a year to bring petition for a review to a hearing shows unreason able delay in obtaining a discharge | 80 |
| The order to show cause (form No. 51) is to have the signature of the clerk and the seal of the court | 126 |
| The clerk must mail the notices (form No. 52) | 126 |
| The register must transmit, to clerk, list of proofs of debt, to enable the notices (form No. 52) to be served properly | 126 |
1206
| On a petition, according to form No. 51, the register to whom the case is referred may direct the making of the order | 121, 124 |
| What is to be contained in that order, and the practice under it | 124 |
| The register must make his certificate as to examination, whether there be opposition to the discharge or not | 124 |
| No discharge can be granted until all papers relating to the case are filed by the register in the clerk's office | 124 |
| Where there are debts proved and assets, application for a discharge cannot be filed before the expiration of six months from the issue of the warrant of adjudication | 792 |
| Form No. 4 in bankruptcy is not a special order, but a “general order,” under rule 5 of the general orders in bankruptcy | 126 |
| Petition for discharge individually may be amended so as to cover partnership debts | 338 |
| Discharge: Opposition: Acts barring. | |
| Any one interested in the administration of the effects of the bankrupt may object (Act 1841) though technically he is not a creditor | 867 |
| Persons cannot oppose a discharge unless they have proved debts, or it clearly appears from the evidence that they are bona fide creditors | 1018 |
| Creditor proving debt after time for hearing of application expired not heard in opposition, and debt not counted | 913 |
| Hearing on specification of grounds of opposition is essentially different from hearing of application for discharge | 913 |
| Time to oppose discharge extended to permit examination of bankrupt on petition alleging fraud | 79 |
| Discharge not granted unless all necessary steps have been regularly taken | 124 |
| Bankrupts held not in complicity with uncle having entire charge of business, who wasted their large capital | 8 |
| The amount for which the bankrupt's goods were sold by the assignee is to be taken as their value, under the 50 per cent. clause | 896 |
| In order to bar a discharge because of a false affidavit of indebtedness, it must appear that the bankrupt knew that the claim was false | 757 |
| Court has power to permit amendment of defective specifications | 135 |
| A discharge will not be granted where the bankrupt has failed to keep proper books of account | 1001 |
| The test as to proper books of account is whether a competent accountant could therefrom ascertain the debtor's financial condition | 135 |
| Specification averring want of proper books of account showing receipt and disposal of money will admit evidence of want of cash book | 135 |
| Discharge refused where bankrupt failed for 10 months to keep a cash book, resulting in inability to determine his financial condition | 135 |
| The bankrupt must keep an account of dealings with another under an agreement to carry on his business, the same as dealings with customers | 757 |
| The pass book of another containing accounts with the bankrupt, entered daily by the owner's bookkeeper, but kept in possession of the bankrupt, held proper book of account within the statute | 758 |
| Act July 27, 1868, is retroactive | 385 |
| _____Scope and effect. | |
| Discharge of the principal under a commission of bankruptcy issued after return of sci. fa. against bail is no discharge of bail | 203 |
| The bankrupt law relieves against a judgment for a tort | 801 |
| Prohibited or fraudulent transfers. | |
| The language of section 35, “in fraud of the provisions of this act,” construed | 889 |
| Concurrence of facts necessary to constitute an illegal preference | 493 |
| All transactions to prefer a bona fide creditor come within the four-months clause of section 5128; the six-months clause applies to other creditors | 1013 |
| Purchase with partnership funds of home stead, with knowledge of its insolvencv, is fraudulent | 892 |
| A sale to a creditor of logs purchased with money furnished by him held not a preference | 1013 |
| Jugment by default obtained against a firm by service upon one member, a brother of the creditor, held an illegal preference | 495 |
| The transfer of assets of an insolvent corporation to a partnership of which one of its directors is a member, made more than six months before proceedings in bankruptcy as security for a debt, set aside in equity | 1142, 1146 |
| Act June, 1874, § 10, changing the period from four to two months, held not retrospective | 1126; but see 889 |
| act june, 1874, § 11, substituting “knowing” for “reasonable cause to believe,” does not affect transactions happening before december 1, 1873, in cases where bankruptcy proceedings were begun before that date. | 1126 |
| the communication by a member of an insolvent firm of creditor's direction to an attorney to enforce a judgment note is a procuring of the enforcement thereof | 255 |
| an act directly tending and done with intent to defeat bankruptcy act is fraudu lent and void | 1 |
| where warrant of attorney to confess judgment is given for full consideration, the creditor may enter judgment and enforce the same, when insolvency is apparent, if not assisted by the debtor | 493 |
| a mortgagee who takes a conveyance from the mortgagor under circumstances apparently for the tatter's relief must have actual notice that it is in fraud of the act | 889 |
| a mortgage is not fully made in vermont until it is recorded, and the fact that it was executed more than two months before the petition was filed does not render it valid | 958 |
| payment to private bankers after their suspension, if bona fide, is valid. (act 1867, § 35.) | 909 |
| one taking mortgage upon lot claimed as homestead after decree declaring it not exempt as such may be ordered summarily to release his security | 895 |
| judgments obtained by service of process on absconding bankrupt, who secretly returned to permit such service, are void | 1 |
| executions are valid if the creditor had no reasonable cause to believe the debtor insolvent when they were taken out | 500 |
| omission to take voluntary proceedings cannot have a retroactive effect, so as to supply an intent to give a preference by an attachment | 82 |
| a general assignment for creditors is void as against an assignee in bankruptcy | 76 |
| an effort to secure an honest debt from a failing creditor is not an actual fraud, with in the meaning of section 5021 | 1013 |
| the defendant in an equity suit must account. before a master, for property received by him. orders of reference to a master will be settled on notice | 188 |
| conveyance may be an act of bankruptcy; and yet valid as to grantee | 16 |
| a judgment by default is prima facie fraudulent, and creditprs petitioning for vacation of an injunction issued by the bankruptcy court against a sale thereunder must negative all circumstances under the statute making the transfer void | 420 |
1207
| _____proceedings to recover property. | |
| property fraudulently disposed of may be recovered by the assignee by summary proceedings upon petition in bankruptcy court | 376 |
| executor and trustee chargeable with notice of bankruptcy proceedings against remainder-man, is liable for money paid over to him | 57 |
| Assignee not entitled to an injunction and receivership as to disputed property in possession of another, except in case of emergency or irreparable loss | 49 |
| The suit by an assignee to recover property conveyed by the bankrupt with intent to defraud, his creditors is governed by the general statute of limitation, and is not limited by section 35 of the act of 1867 | 1176 |
| Assignee can recover property fraudulently conveyed, even if there was no lien on such property in favor of a creditor when the petition was filed | 52 |
| Where a creditor to whom the fraudulent preference has' been made by a default judgment submits himself to the jurisdiction of the court. the court will control the proceeds of sale on execution by summary process | 495 |
| In case of attachment of bankrupt's property, assignee can take advantage of any remedy open to subsequent attachment creditor | 71 |
| Levy of execution on bankrupt's personalty will be declared void on petition of assignee where not in conformity to state laws under which it was made | 71 |
| In summary proceedings by the assignee to recover property fraudulently disposed of, the court may order issues of fact to be tried by a jury | 376 |
| Arrangement with creditors: Composition. | |
| Payment to induce consent will impeach composition, though requisite number of creditors signed without counting the one to whom payment was made | 205 |
| Confirmation denied where the bankrupt, given possession of the property, had misappropriated the funds of a creditor | 715 |
| An unaccepted offer of money to induce consent, and payment by bookkeeper to another creditor who did assent, unexplained, Jicld sufficient to impeach composition | 205 |
| Where a composition is accepted and approved, no formal discharge is necessary | 27 |
| Bankrupt is discharged by composition accepted and approved only from claims of creditors whose names, addresses, and debts are placed on the statement produced at the meeting of creditors | 27 |
| Objections that the claim of a creditor voting for the composition is fictitious or invalid cannot be raised for the first time upon motion for confirmation | 715 |
| A member of the committee held not entitled to compensation for preparing the bankrupt's stock for sale, and in effecting settlement of litigation | 856 |
BANKS AND BANKING.
| No title passes to savings bank on deposit of check representing moneys belonging to a third person where it has notice of his claim | 57 |
| Bona fide indorsees before maturity of paper discounted by a cashier are not affected by the fact that it was unauthorized by the discounting committee of the bank, if the paper passed through the bank in the usual course of business | 577 |
| A new bank, incorporated with the same name as an old bank, whose charter is about to expire, and with nearly the same stockholders, is not responsible for notes of the old bank | 144 |
| One to whom shares of national bank stock are transferred as collateral security, but under a transfer made absolute in due form on its books, is liable to its creditors as a stockholder | 1029 |
| A transfer of national bank shares, with intent to relieve the transferrer from liability to creditors, is void as against the creditors | 1034 |
| A letter from the comptroller of the currency is not sufficient evidence to establish the liability of a stockholder of a national bank to contribute the entire amount of his stock to meet its liabilities | 1034 |
| The officers of a national bank may borrow money of the bank the same as other persons | 577 |
BILLS, NOTES, AND CHECKS.
| The fact that a note is made payable in exchange with rate not specified does not prevent its being a promissory note. The rate is subject to proof | 1155 |
| A promissory note, made and indorsed in Virginia, held not mercantile negotiable paper | 1154 |
| A promissory note signed by one as agent of a corporation does not upon its face import a personal obligation. The burden of proof in such case is upon the holder | 1156 |
| An agent is not personally liable upon a promissory note made by him to one who took it with knowledge that it was given by him as agent of a corporation | 1156 |
| Where a bill is drawn with directions to charge to another, and it is accepted generally, the drawer is not ordinarily liable to the drawee | 100 |
| Acceptance is evidence against the acceptor, in behalf of the drawer, of so much money, under the money counts | 190 |
| The words “value received” in negotiable paper are not necessary | 190 |
| A note payable to M., cashier, is a note payable to the bank, and the bank is liable on an indorsement and discounting by him | 577 |
| An action will not lie by an indorsee against a remote indorser upon a promissory note which is not mercantile negotiable paper | 1154 |
| Delivery, without indorsement, of a note payable to a payee named, or bearer, is not sufficient to authorize the assignee to sue in his own name | 1168; contra, 1132 |
| The maker may set up the same defense against a note in the hands of an assignee that he might make if it were held by the payee | 1168 |
| Demand of payment on day after last day of grace is too late | 63 |
| A note made “negotiable” at a certain bank is not “payable” at that bank, and demand there is not necessary | 63 |
| Proof of demand at the place named is not necessary in an action against the maker | 319 |
| Notice of demand and nonpayment need not be given during business hours | 853 |
| Notice of nonpayment is excused where the holder called at the indorser's place of business, in business hours, and found it closed | 1069 |
| The owner, voluntarily destroying a promissory note, can neither recover upon the note, nor upon the debt for which it was given | 888 |
| A note payable “with interest” will not support a count upon a note payable with out interest | 748 |
| Plaintiff allowed to strike out his indorsement after the note was offered in evidence | 748 |
1208
BILL OF LADING.
| The contract to deliver will be construed as subject to all restraints of government, such as sanitary or prohibitory laws | 1180 |
| The engagement as to delivery is controlled by a usage of consignees at the particular port to receive shipments during the Quarantine season, at the quarantine grounds | 1180 |
| Special usage in a trade may give consignee right to choose place of discharge | 927 |
| The vessel is not liable for failure to deliver according to the bill of lading, where the regular warehouseman, because of personal difficulties with the consignee, would not receive the goods, and the master caused them to be stored with another. (Reversing 744.) | 742 |
| The words “in good order and well-conditioned,” in a bill of lading of bales of cotton, have reference only to external condition | 1183 |
| The vessel is liable for unexplained loss of raisins from boxes, notwithstanding exceptions in bill of lading of loss by breakage of boxes | 136 |
| The fact that a cask of wine, shipped under a bill of lading excepting dangers of the sea, arrived with one of its heads crushed in, is prima facie evidence of negligence in handling or stowage | 536 |
| Vessel held not liable for cargo of barley shipped under bills excepting dangers of the sea, and damaged by salt water from a leak caused by heavy weather | 748 |
| Consignee of barrels of flour held entitled to identical barrels shipped, though description in bill of lading was not complete | 155 |
| Consignees are entitled to reasonable opportunity to ascertain whether goods delivered correspond in quantity and condition with the description given in the shipping documents | 1180 |
| Parol evidence is admissible to explain or rectify statements in the bill respecting the condition of the goods at the time of loading, as between the original parties, but not as against consignees who have made advances upon the faith of such statements, irrespective of the amount | 1180, 1183 |
| On a libel for not delivering coal according to the terms of the bill of lading, it being landed at a wrong wharf, the measure of damages is the value of the coal less the freight charges | 927 |
| Counsel fees in a replevin suit by a shipper to recover the coal are not included in the damages assessed | 927 |
BONDS.
| The bond of a corporation, payable to bearer, held to be commercial paper passing by delivery | 1172 |
| Bond obtained by falsely representing to obligors that obligee had a requisition to take them to another state, to answer a criminal charge, is void | 110 |
| An obligor may set up any defense to a bond, as against the assignee, which he had against the obligee | 110 |
| A railroad company is liable on a negotiable municipal bond, indorsed by it | 853 |
| Schoolhouse bonds issued under Act Mo. March 21, 1870, held valid, and enforceable by the ordinary remedies | 850 |
BOTTOMRY AND RESPONDENTIA.
| Lender is bound to ascertain necessity for advances and absence of other resources | 918 |
| Master has no power to hypothecate vessel in foreign port if owners have a representative there, or if advances may be procured by other means | 901 |
CARRIERS.
| A sleeping-car company is neither liable as a common carrier nor as an innkeeper | 755 |
| A sleeping-car company is liable for a loss, caused by its negligence, of articles usually carried by a passenger about his person, and of money reasonably necessary for traveling expenses, in failing to take reasonable care to prevent thefts | 755 |
| Proprietor of stagecoach is liable for in jury to passenger due to intoxication of driver, though his reputation previously was of the highest character | 453 |
| One who sells goods on credit cannot maintain an action against the carrier for their loss. In shipping, he acts as agent of the purchaser | 753 |
| A carrier is justified in selling goods which the consignee refused to receive on their arriving damaged and in a perishable condition from causes for which he is not responsible | 783 |
| The common-law rule of liability is not applicable to steamers and railroads having a regular time of arrival and departure | 395 |
| When the question of diligence arises at all, the carrier is bound, like other bailees for hire, warehouseman, or wharfingers, to the exercise of due diligence only | 395 |
CHARTER PARTIES.
| The words “charter and to freight let” do not imply a covenant, in law. that the vessel is or shall be seaworthy | 1070 |
| Charterer of vessel for cargo of timber undertakes to furnish timber suitable to capacity and condition of vessel, and owners are not bound to widen portholes to suit timber furnished. (Reversing 47.) | 48 |
| Charterer held chargeable with knowledge of tonnage and draught of water of vessel and state of harbor, rendering vessel unable to complete loading in harbor | 150 |
| Charterer's failure to provide means of loading guano held to justify master in returning with partial cargo | 492 |
| Custom of deducting for defective pieces of timber cannot control stipulation as to freight | 150 |
| Arbitration between consignee of vessel and consignee of cargo of timber as to measurement of timber not binding upon charterer | 150 |
| Charterers who have voluntarily surrendered possession to the owners have no right to reclaim it | 263 |
| Charterer not presumptively liable for services rendered in floating stranded vessel under contract made with owner | 107 |
| Libelants suing for breach of charter party are bound to show that there was no default on their part | 47 |
| Vessel held liable for goods taken aboard by mistake of mate and wharfinger, in excess of the cargo stipulated, and delivered to charterer | 696 |
CHATTEL MORTGAGES.
| A chattel mortgage on a stock in trade expressly stipulating that the mortgagor may continue the business is void | 725 |
COLLISION.
| Nature of the liability: Contributive fault. | |
| The fact that a collision was caused by a hurricane is no defense if it could have been avoided by foresight, precaution, and nautical skill | 794 |
| Error in moment of peril, brought about by fault of another, will not subject vessel to damages | 127 |
1209
| A schooner's change of course when four miles from a steamer, in dense fog, held not a contributive fault | 543 |
| The failure of libelant to properly lash a propeller wheel in which he was working is no defense to an action for injuries caused by a collision therewith, which caused the wheel to revolve | 1024 |
| The respective liabilities of tow and tug considered | 86 |
| Tug held prima facie liable for collision between ship in tow manned by landsmen only and lighter at dock | 86 |
| Where a ship and tug lashed together are navigated under the direction of the master of the tug by the use of both helms, they are liable, as joint tort feasors, for a collision by the ship | 1103 |
| Rules of navigation. | |
| The officer of the deck may take the helm and act upon the direction of the lookout | 740 |
| Vessel will be held in fault in attempting to run across the track another is known to be intending instantly to take | 930 |
| The British merchants' shipping act has no application to the equipment or conduct of a British vessel When meeting a foreign ship on the high seas | 127 |
| Sail vessels meeting. | |
| A vessel running with the wind free must give way to another closehauled, without regard to their respective tacks | 740 |
| The vessel closehauled must keep her course, though not carrying lights | 127 |
| Steam vessel meeting sail vessel. | |
| Schooner held not in fault for not changing her course on meeting steamer in dense fog | 543 |
| A steamer, meeting a schooner closehauled on the high seas, so shaped her course that the vessels would have passed 40 feet apart. Held, that luffing when near was a change in extremis | 180, 182 |
| Vessels moored, etc. | |
| Both tug and barge in tow held in fault for collision with a steamer moored, caused by failure to stop her headway on approaching a berth | 1024 |
| Local ordinance in relation to anchoring is binding on all navigators | 36 |
| Presumption of law is against vessel colliding with another anchored in a proper place | 10 |
| Vessel lying at anchor in roadstead with out anchor lights, and lookout asleep, held solely in fault | 326 |
| Vessel held negligent in anchoring 400 feet to windward of another, and not taking due precaution to avoid collision from increasing wind and sea | 10 |
| Schooner anchoring in dense fog within 60 yards of track of ferry, in violation of local ordinance, held at fault | 36 |
| Ferryboat knowing of anchorage of schooner in violation of ordinance, and refusal to change, held equally liable for collision in fog | 36 |
| River and harbor navigation. | |
| A steamer approaching her usual berth with due care held not liable for collision with a barge in tow | 751 |
| Speed: Fogs. | |
| A speed of eight knots in a dense fog, in South Vineyard channel, held immoderate | 543 |
| Lights, signals, etc. | |
| Sailing vessels coming into port in the nighttime held not bound to carry lights | 740 |
| Sailing vessels navigating high seas are not obliged to carry signal lights | 34 |
| Failure of sail vessel to carry lights does not excuse steamer from duty to avoid her if seen in time | 34 |
| Lookouts. | |
| Pilot boats, equally with other vessels, are guilty of gross negligence in running at night without competent lookout forward | 740 |
| The man at the wheel is not a sufficient watch | 740 |
| Failure to keep proper lookout is prima facie evidence that collision was caused by such neglect | 12 |
| Particular instances of collision. | |
| Between steamer and lighter attempting to cross her bows in North river | 260 |
| Between lighter propelled by oars and ship lashed to the side of a tug, making the same pier | 1103 |
| Between schooner and propeller in Chesapeake Bay, where both held in fault | 805 |
| Between competing passenger steamboats attempting to gain advantage in starting from the same pier at the same time | 930 |
| Procedure. | |
| Testimony of experts as to the bearing of a steamer's speed upon her navigation, but not as to its propriety, is admissible | 543 |
| Rule of damages. | |
| Hypothetical or consequential damages will not be considered | 740 |
| A recovery is allowed of an amount sufficient to restore the injured vessel to the condition she was in at the time of the collision | 740 |
| Demurrage is not allowable for a delay in discharging the cargo after the vessel was raised with the owner's knowledge | 1198 |
| The direct effect of a collision with a lighter being to cast its cargo overboard, the colliding vessel is liable for the loss thereby sustained | 1103 |
CONSTITUTIONAL LAW.
| A law providing separate public schools for white and colored children is not unconstitutional | 294 |
| The provision securing the right of trial by jury applies only to criminal cases and civil cases where the right is to be tried at law; not to mere collateral questions of damages, when no suit is pending and the rights of both parties admitted | 821 |
| The clause in the fifth amendment “when in actual service in time of war” has no reference to the regular army or the navy, but refers only to the militia | 796 |
| A state law imposing a special rate of in terest upon judgments against foreign corporations is not repugnant to article 4, § 2, as a corporation is not a citizen within that section | 288 |
| An act authorizing the sale of land devised for life, with power of appointment in fee, the proceeds to be invested in other realty with like trusts, held not unconstitutional | 559 |
| The inhibition against the impairment of obligations of contract is inapplicable to the federal government | 729 |
| A state law which relieves from a contract cannot be enforced against nonresidents of the state, or in cases where the contract was prior to the law | 65 |
| A state, in regulating the remedy, may protect insolvents from imprisonment | 65 |
| The constitution protects property against arbitrary seizure or divesture only, and a law divesting vested rights is void only if the right is by a contract, and compensation is not provided or made | 821 |
| The provision that private property cannot be taken for public use without just compensation is applicable to inventions secured by patents and to the government | 1190 |
| The government, in a case of extreme necessity, in time of war and of immediate and impending public danger, taking an invention secured by a patent, is bound to make full compensation to the owner | 1190 |
1210
| The provision of the bankruptcy act of 1867 (section 14) adopting state exemption laws is uniform in its operations | 26 |
| Quaere, whether a carriage of freight out of a state into another, not being a mere transit through the state, is interstate commerce, so that the carriage within the state is beyond its power of regulation | 846 |
| The issuing of a policy of life insurance is not “commerce,” within the constitutional provision giving congress power to regulate commerce among the states | 288 |
CONTEMPT.
| It is a contempt to serve process, either of summons or capias, in the actual or constructive presence of the court | 704 |
| Granting of attachment for disobedience of subpoena running beyond the district is discretionary, and will be refused where circumstances render it oppressive | 46 |
| A marshal obeying orders of secretary of war, rather than that of court, should not be punished for contempt of court | 159 |
| As process committing the marshal for a contempt would run to him in his official capacity, the issue of such process will be refused as impracticable | 159 |
CONTINUANCE.
| A notice given at the trial term in Alexandria that security for costs will be required is no ground for postponing the trial | 212 |
| Suit at law not continued because plaintiff failed to answer a bill of discovery which also sought relief | 236 |
| Where a writ of inquiry is set aside at the trial term, plaintiff is entitled to continuance until next term, at defendant's costs | 18 |
CONTRACTS.
| Where a parol agreement was to be reduced to writing, a party cannot escape its obligation by refusing to execute the writ ten instrument | 699 |
| A party waives a fraud if, with knowledge thereof, he offers to perform the contract on a condition which he had no right to exact | 771 |
| Extra work done upon a house built by contract cannot be recovered unless there was an express or implied agreement there for | 152 |
| The mere knowledge of the doing of extra work and failure to object will not of itself raise a contract | 152 |
| Construction of agreement to pay money after the promisor should obtain, or be in a legal capacity to obtain, certain land | 687 |
| A demand is necessary if no time be fixed in the contract or by other agreement for payment | 857 |
| Under a contract to build bridges to be paid for at a certain sum per foot, where no time of payment is fixed, no recovery can be had until a complete performance | 857 |
| A custom to make monthly payments as the work progressed, under a contract silent as to time of payment, establishes a rule of payment under the contract binding on the parties | 857 |
| The mode of paying for extra work, where not stipulated, held to be the same as that provided for in the original contract | 837 |
| A railroad company is not disabled from performing a contract to pay for bridges in stock by having mortgaged its road to secure the payment of debts due to others | 857 |
| Damages are recoverable for failure to pay a sum of money as agreed, out of funds expected to come into the promisor's hands, if, by his own fault, the money did not come into his hands | 699 |
| Measure of damages for breach of contract to deliver goods at Boston for shipment to foreign market is the difference between contract and market price at Boston | 18 |
COPYRIGHT.
| A dramatic composition is entitled to copyright as original, although a reproduction of old materials in a new form and combination | 977 |
| The rule stated for determining whether a copyrighted work is an original one in the sense of the law | 977 |
| A copyright cannot subsist in a chart as a general subject. The copyright therein is violated only when another copies there from, and avails himself of the labor and skill of the author | 763 |
| A person is not entitled to a copyright on an historical print composed and executed by artis's employed and paid by him. (Act April 28, 1802.) | 421 |
| Residence entitling an alien to the benefit of the copyright laws is determined by the intention existing at the time of filing the title, and is unaffected by any change of intention | 988 |
| An agreement to write a play for another, and to act in it, with a share in the profits as compensation, does not create a legal or equitable title in the latter, which will prevent the author taking out a copyright | 977 |
| Consent of the author to publication abroad places him in the position of a foreign author, and is an abandonment of his rights to a copyright | 988 |
| The performance, with the author's consent and for his benefit, of a play which has not been printed by him, is not an abandonment to the public, nor a publication, within the copyright act | 977, 983, 988 |
| Deposit of title of drama not original with depositor does not preclude its use by others, who have previously applied it to dramatic composition | 201 |
| The right of action at law as well as in equity may accrue after the filing of the title, and before actual publication | 988 |
| The exclusive right to publicly perform a dramatic composition, under Rev. St. § 4966, is dependent upon the existence of a copyright | 983 |
| A copyright may be assigned to be transferred to a person not entitled, under the act, to take out a copyright | 977 |
| The unauthorized use by a map maker of the surveys upon which a copyrighted map is based is an infringement of the copyright | 762 |
| It is not necessary that a play to infringe the copyright of another should be identical, word for word | 988 |
| An injunction will not be granted in the first instance if it is doubtful whether there has been infringement | 763 |
| A bill for infringement, filed four months after the deposit of the title of a dramatic composition, which does not allege a publication or a delivery of copies to the librarian of congress or any reason for the failure, is demurrable | 985 |
| It is a proper question for the jury whether one production is a copy of the other or Hot, and, where there is a small variance, whether it is not merely colorable | 763 |
| In a qui tarn action for infringement of the copyright of a chart, the question whether defendant copied from plaintiff's survey is for the jury | 762 |
| On the trial of an action for violating the copyright of a play, a witness cannot testify as to identities between parts of the play and a book from which it is alleged to have been dramatized, where either the book or play is not produced in court or its absence accounted for | 977 |
1211
| The right to an account does not depend upon the right to an injunction | 685 |
| Equity will settle a disputed title to a copyright in a suit to enjoin infringement | 421 |
CORPORATIONS.
| A foreign corporation becomes a domestic corporation by having its charter duplicated by the state legislature | 527 |
| Whether a charter be a continuation of an old corporation or the creation of a new one must be decided by the legislative intent, and not by the conduct of its officials | 144 |
| A corporation does not cease to exist by ceasing to do business and distributing its assets and debts to the stockholders | 1150 |
| A company incorporated by a descriptive name held to have the power, independently of special provisions, of purchasing patents relating thereto | 653 |
| The treasurer of a corporation, having general authority to pay debts and borrow money, may give his consent to a transaction by which a selling agent assumes and pays a debt due another | 1159 |
| The directors of an insolvent corporation will not be allowed to secure a preference over other creditors | 1142, 1146 |
| An officer of a corporation embarrassed, and without funds, may, with his own means, purchase its past-due outstanding bonds, and hold them as against the company | 1172 |
| A corporation may make a valid contract with its president increasing the rate of in terest upon its own past-due bond, held by him, the contract being a fair and equitable one | 1172 |
| Corporate rights and interests wrongfully affected must be asserted and defended, both at law and in equity, in the corporate name | 1159 |
| Corporate assets are regarded in equity as held in trust for payment of the corporate debts, which equity will enforce, though the matter in controversy may not be cognizable in a court of law | 1142 |
| Bona fide alien creditors of corporation may maintain bill in equity in federal court to hold its assignees accountable for improper conduct, and for appointment of receiver | 116 |
| An averment that defendant corporation is duly chartered under the laws of the state can only be denied by plea in abatement to the jurisdiction | 527 |
| Contents of a notary's certificate to verification of bill by agent of corporation plain tiff | 615 |
COSTS.
| Not allowed where vessel is arrested for small cause of action, for which party has other adequate remedy, and suit is prosecuted vindictively | 930 |
| Libelant who proves either of two claims sued on is entitled to costs, but only for the evidence required to prove such claim | 897 |
| Party appealing in collision ease, and securing division of damages, is entitled to costs of appeal | 36 |
| Payment of costs of bill of discovery by detendants should be borne by them on their final defeat | 1088 |
| Party allowed to prosecute suit without giving security for costs, where he makes oath to his poverty, and an attorney certifies to merits | 1129 |
| Form of such oath | 1129 |
| Defendant for whom suit was opened after hearing as a matter of favor cannot move for security for costs on the ground of non residence, appearing on the face of the bill | 707 |
| Fees paid witnesses who actually attend trial are taxable | 29 |
| Travel fees for witnesses who live out of the district may be taxed to extent of 100 miles, but no more | 29 |
| The fees of a witness examined de beneesse, who also attends the trial and is examined, are taxable, as is also the proctor's fee for taking his deposition, if it is admitted in evidence | 29 |
| A party is entitled to a detailed bill under oath of commissioner's fees which are to be taxed against him. showing the items, and that they are legally chargeable | 29 |
| No docket fee is allowable on exceptions to a commissioner's report | 29 |
| Attachment will be granted against plaintiff and his sureties for costs for which he is liable | 1087 |
COUNTIES.
| A county is not liable on the bonds of a levee district issued to pay for building levees | 910 |
| Failure or refusal of county court to assess a tax on lands of a levee district for the expense of building. levees will not make county liable to general judgment for the district's bonds | 910 |
COURTS.
| In general. | |
| The distinction between jurisdiction and its exercise pointed out | 796 |
| Terms. | |
| A change by statute of the time of holding courts does not affect the business therein, although no provision is made as to the decision of causes | 961 |
| Comparative authority of federal and state courts: Process. | |
| A federal judge has no power to authorize the arrest of a citizen for breach of the peace or violation of the laws of a state | 261 |
| Federal courts have no jurisdiction respecting violations of state laws and constitution | 294 |
| Where the federal and state courts have concurrent jurisdiction, the one first to as sume jurisdiction will be allowed to control the subject-matter | 110, 780 |
| Priority of jurisdiction is determined by date of service of process, and not commencement of suit | 1101 |
| The time of the appointment of a receiver for an insolvent corporation, and not the commencement of suit therefor, determines priority of jurisdiction | 116, 586 |
| Federal courts—Jurisdiction in general. | |
| A court of equity in foreclosing a consolidated mortgage by a consolidated corporation of different states has exclusive jurisdiction over all the property in all the states | 527 |
| ____Grounds of jurisdiction. | |
| The circuit court has no power to administer common-law relief in a suit between citizens of the same state | 983 |
| It is no ground of jurisdiction under the patent law that the contract between the parties relates to a patent right | 726 |
| The parties to a contract respecting patent rights not provided for or regulated by act of congress stand upon the same ground as other litigants in respect to the jurisdiction of the court | 640 |
| Where jurisdiction depends upon the fact that one of the defendants is a foreign consul, and he is held not liable, judgment cannot be rendered against the others | 488 |
1212
| Jurisdiction as to resident defendants in suit by aliens is not affected by non residence of others | 116 |
| The fact that part of plaintiffs are citizens of another state does not make a case of diversity of citizenship | 483 |
| A controversy as to the custody of a child, between citizens of different states, is with in the judicial power of the United States to determine by writ of habeas corpus | 212 |
| It is no objection that plaintiff: acquired title to enable him to sue in the federal courts if the transaction is real, and not colorable | 527 |
| The district court has power to issue process of foreign attachment in admiralty where defendants are not inhabitants of or found within the district | 1021; contra, 557 |
| A defendant corporation “is found” with in the district where sued if it does business there by authority of law | 527 |
| A corporation authorized by the statute of a state, doing business there, and reciting in its contracts that it is chartered by the state, is estopped to deny, when sued in the federal courts, that it is duly organized under the state laws | 526 |
| A receiver appointed on the voluntary dissolution of a bank, suing in a federal court, must show that such court could have taken jurisdiction as between defendants and the bank | 1132 |
| Such receiver cannot sue as the bearer on a note payable to the bank or bearer | 1132 |
| The fact that a corporation is not suable in a circuit court will not prevent its agents being sued therein | 821 |
| An averment that a party is a citizen of the “southern district” of a certain state is a sufficient averment of citizenship | 267 |
| The citizenship of a defendant in ejectment, residing upon the land, and intending to remain permanently, cannot be alleged as of another state | 483 |
| The assignee of a bail bond is not such an assignee of a chose in action as is contemplated by section 11 of the Judiciary Act | 788 |
| An instrument not negotiable by the law merchant, although made negotiable by local statute, is not within the exception (Act March 3, 1875) authorizing suits by as signees | 320 |
| The objection that the cause of action arose in another district is waived when not raised in the answer | 517 |
| A plea of the general issue waives proof of jurisdiction of the person if served within the state | 494 |
| A foreign corporation, by filing an answer, waives the right to be sued only in the district of the state creating it, and jurisdiction is not limited to its property situated within the district | 526 |
| The parties cannot by consent confer jurisdiction not shown in the proceedings | 788 |
| Defendant may at any time before trial object to the jurisdiction on motion, or by a plea, or on the general issue with notice to the adverse party | 788 |
| After a trial on the merits, and a verdict or judgment given, defendant is estopped to controvert the fact of citizenship, as laid in the declaration | 783 |
| Federal courts—Circuit courts. | |
| Circuit court sitting in Alexandria has only the powers of a county court of Virginia in relation to ferries | 285 |
| ______District courts. | |
| Though all parties are foreigners, the court within whose jurisdiction the thing is situated has jurisdiction in rem, unless it is brought within the jurisdiction by violation of the sovereign right of another nation | 41 |
| A district court has no jurisdiction by habeas corpus over a political prisoner removed from its district before the petition is filed, nor will it compel such prisoner to be brought within the district that relief may be grauted | 332 |
| _____Administration of state laws and decisions. | |
| On a commercial question the federal court is not bound to follow the decisions of the state court | 1155 |
| A federal court can inquire only into the constitutional power of state legislatures, not as to the policy, justice, or wisdom of their acts | 221 |
| A state law compelling parties to testify is enforceable in the federal court | 285 |
| The rule that remedies given by state laws may be pursued in federal courts sitting in the state applies to an action for partition | 336 |
| An attachment issued by a federal court under a state law, not adopted by congress or by rule of court, cannot be sustained | 421 |
| State insolvent laws may be adopted by a rule of court | 65 |
| State insolvent laws cannot affect proceedings in federal courts unless they are adopted as rules of proceeding | 65 |
| Decisions of state tribunal on a construction of their statutes are binding on the federal courts | 735, 1108 |
| Imprisonment for debt, having been abolished in the state, cannot be used to enforce a final decree in the federal court | 664 |
| A federal court in equity will enforce, at the suit of the beneficiary, a contract made for his benefit by another person, where, under the jurisprudence and laws of the state, want of privity is not an obstacle to such enforcement | 186 |
| ______Procedure. | |
| State laws as to practice and proceedings are not obligatory on federal courts | 100 |
| In the absence of provisions of positive statute, the state practice prevails in common-law cases. (Rev. St. §§ 646, 914, 915.) | 386 |
| Acts of congress adopting the state practice do not adopt future regulations | 421 |
COVENANTS.
| The measure of damages for breach of a covenant for quiet enjoyment made by the lessee, on a transfer by him, where the covenantee is evicted, is the fair rental value, not the rate of rent payable by the covenantor | 855 |
CURTESY.
| A tenant by the curtesy, guardian for the remainder-man, cannot apply the ward's estate to remove an incumbrance | 1003 |
CUSTOMS DUTIES.
| Customs laws. | |
| Practice of government is admissible as bearing on construction of law | 192 |
| Rates of duty. | |
| Bottled wine | 239 |
| Mustard, caraway, cardamon, and fenugreek held dutiable under provision for “garden seed and all other seeds not otherwise provided for” | 1024 |
| Vermilion held dutiable as such, and not as a “mercurial preparation” | 1023 |
| The similitude clause of Act Aug. 30, 1842. does not contemplate that the non-enumerated articles shall in every particular bear a similitude to an enumerated article | 808 |
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| Invoice: Appraisal. | |
| Costs and charges actually paid should be added to the invoice, and not arbitrarily fixed | 192 |
| Freight and transportation from port of shipment is not a dutiable charge, under Act March 3, 1851 | 192 |
| Where sales are free on board, the addition of transportation charges from the place of production is illegal | 714 |
| Commissions on importations; amount chargeable | 192 |
| Sea freight is not a dutiable charge | 714 |
| Spanish quicksilver, imported from London, held subject to penalty for undervaluation, where place of production was not shown | 150 |
| Goods imported by their manufacturer are not subject to a penalty of 20 per cent. ad valorem for undervaluation (Act 1846, § 8), but to a penalty of 50 per cent, of the duty (Act 1842, § 17) | 451 |
| The statutory provision requiring the appraiser to view the property when the appraisement is made upon an increased valuation is waived by failure to protest | 808 |
| Payment: Protest: Appeal. | |
| The recovery of excess duties can only be had on the grounds stated in the protest | 808 |
| Protest not required as to each particular entry, but may be prospective and continuous. (Act March 3, 1857) | 192 |
| A protest that “the appraisers had not used or employed sufficient means, or made sufficient examination,” to determine value, held sufficient | 807 |
| Illegal exaction cannot be proved by adjustment by customs official on incomplete statement | 192 |
| Report made at request of customs officials, without instructions from treasury department, inadmissible as evidence of proper charges | 192 |
| Additions to entry made by importer to obtain possession of goods are not voluntary, and appraisement is not conclusive | 192 |
| Failure to appeal from decision of collector does not bar a recovery against him for the excess of duty exacted | 192 |
| Action to recover excessive duties will be referred where it involves numerous items | 192 |
| New trial granted on payment of costs where papers were lost in customhouse, and there was a question whether all the facts were presented | 807 |
| Violations of law; forfeiture. | |
| A forfeiture for unlading imported goods before reaching port of discharge (Act March 2, 1799) applies to both foreign and American vessels | 303 |
| A libel for such forfeiture need not allege the goods to be of foreign growth | 303 |
| A libel for a forfeiture should substantially agree with the terms of the statute | 303 |
| Goods landed under a permit obtained by collusion with a deputy collector are for feited | 968 |
| A forfeiture for landing goods under a collusive permit may be enforced upon a general count charging that the goods were landed without a permit | 968 |
DEATH BY WRONGFUL ACT.
| Only the amount of the actual pecuniary loss is allowable (Act Ill. Feb. 12, 1853); nothing can be added for grief or loss of society | 1196 |
DEED.
| The grant to a town of all the proprietor's ways called “highways” conveys only those in existence; not those reserved, but not laid out | 899 |
| The part excepted in a grant remains in the grantor, and needs no words of perpetuity | 1076 |
DEPOSITION.
| The deposition of a seafaring man may be taken on one day's notice to the adversary's attorney. (Act Md. 1721, c. 14, § 14) | 1070 |
| Notice served on counsel during court, or which would deprive him of attendance at the commencement of court, is not good | 110 |
| A commission directed to an officer to be executed in one county cannot be executed in another | 993 |
| The commissioner should state when and where the depositions were taken | 993 |
| The verification of a deposition may be taken before a notary | 615 |
| A deposition taken under Act 1789, § 30, must be certified by the judge that it was reduced to writing by himself or by the witness in his presence | 604 |
| The mistake of the clerk in misnaming one of the parties in a commission may be amended after the death of the witness | 879 |
| A deposition cannot be read unless due diligence be first used to obtain the attendance of the witness at the trial or his evidence under commission | 687 |
| The deposition of a witness, living out of the state, and more than 100 miles from court, cannot be read unless taken under a commission | 687 |
| In a suit by 100 plaintiffs, depositions taken in a suit by 5 of them are not admissible | 993 |
| Depositions taken between other parties on the same point may be read to prove pedigree, as hearsay or declarations, the witnesses being dead | 993 |
| Depositions cannot be read where proper interrogatories are not answered | 100 |
| The deposition of a seafaring man cannot be read at the trial unless it appear that the witness has departed from the district | 1070 |
DESCENT AND DISTRIBUTION.
| The Virginia act concerning guardians, etc. (1 Rev. Code, c. 108, § 12), and the act concerning wills, intestacy, and distribution (Id. c. 104, § 60), construed in relation to the claim of a ward as to priority and the liability of heirs and devisees | 507 |
DETINUE.
| Detinue will lie for a slave, although defendant obtained possession tortiously | 277 |
DISCOVERY.
| There is a distinction between a bill for discovery merely and one for discovery and relief | 119 |
| A bill of discovery, to aid a prosecution at law, should aver the materiality of the facts, and that they can only be proved by defendant's oath | 119 |
| A plea to a bill of discovery presenting the issue as to who is best acquainted with the facts of the case is not good | 119 |
| It is no sufficient answer that the facts can be proved by another, who is interested | 119 |
DIVORCE.
| A divorce leaves the wife competent to choose her own domicile | 212 |
| Custody of children may be awarded to either parent. (Hitt. Laws Cal. § 2419.) | 212 |
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DOMICILE.
| Page A man is not prevented from acquiring citizenship in a place to which he goes with the purpose of permanently residing there, and in which he votes, by the fact that his wife and children remained at his old home | 580 |
DOWER.
| Dower, unassigned, cannot be barred by a tax sale | 719 |
| Upon a writ of dower, the marriage may be proved by parol evidence of cohabitation as man and wife | 720 |
EJECTMENT.
| Ejectment by one claiming title under a Mexican grant will lie at any time within five years after its final confirmation. (Act Cal. 1855, § 6; Act 1803, § 6.) | 466 |
| The issuing of the patent is the final confirmation, except where the survey is confirmed by the district court, when final confirmation dates from the decree | 466 |
| An averment of seisin is essential, and it must be alleged to have been within the time limited for bringing the action | 791 |
| Defendants, showing no title, cannot depend upon the invalidity of the documentary title of plaintiff, accompanied by possession | 1112 |
| An objection to jurisdiction on the ground that plaintiff's title is merely colorable is not available under a general answer | 1112 |
| “Rodeo boundaries,” under the California customs and usages, constituted as notorious evidence of possession as cultivation or fencing in an old, settled country | 1112 |
| A tenant in possession under a defective title from the commonwealth is entitled to the full value of his improvements | 905 |
ELECTION OF REMEDIES.
| Where timber cut upon public lands willfully, fraudulently, or negligently is made into saw logs, the government may elect to replevy such logs, or sue in trover for their value as such | 767 |
EMBARGO AND NONINTER-COURSE.
| Voluntary arrival at port of destination, though without breaking bulk, constitutes an importation | 925 |
| Goods placed on board with intent to import them are forfeited, irrespective of owners' intention to violate act | 925 |
| The informer should be named as a party to the information, and the judgment should ascertain and decree his share | 811 |
| Procedure on seizure and information | 811 |
EMINENT DOMAIN.
| A railroad or canal for the conveyance of the public and their goods generally, on payment of reasonable and uniform tolls, is for a public use | 821 |
| Property destroyed by city officers to stay the progress of a conflagration is not private property taken for public use | 1038 |
| An act incorporating a company to build a railroad, and providing for the assessment of damages to the owners of land through which it passes, held not unconstitutional | 821 |
| The obligation to make compensation is concomitant with the right to take private property for public use | 821 |
| The payment for land taken must be simultaneous with the disseisin and the appropriation | 821 |
| The mere entry on land for the purpose of making a survey of a road is not a taking requiring compensation to be made | 821 |
| A law is not void because it contains no provision for compensation for property taken, or the mode of ascertaining it, where a subsequent law contains such provision | 821 |
| But its execution will be enjoined till such provision is made by law and the compensation paid | 821 |
| Contractors of the government held to derive no power, by virtue of their contract, to take private property, or apply the same to fulfill their contract obligations, without the owner's consent | 1190 |
EQUITY.
| Relief will be given in equity if it be not complete at law | 1076 |
| Equity has jurisdiction of a bill by bond holders to enjoin railroad commissioners from putting in force a statute alleged to be unconstitutional, and injurious to their rights | 846 |
| Where a contract is not enforceable at law, and there is a fund to which the creditor has a right to resort, equity will relieve | 30 |
| A delay of 36 years to enforce a ferry right adversely used by another will bar relief in equity | 1076 |
| A claim is rendered stale after 10 years from removal of involuntary disability of infancy, notwithstanding further disability of coverture | 38 |
ESCROW.
| A promissory note delivered in escrow held valid in the hands of the payee, al though agreement not complied with | 880 |
ESTATES.
| The tenant for life is bound to keep down the interest on an incumbrance on the entire estate, but not to pay any part of the principal | 1003 |
ESTOPPEL.
| Estoppel by a former suit is not available unless alleged in anticipation of the defense | 675 |
| A person who, by overt act, deprived himself of the legal capacity to do an act, held estopped from denying that he had such capacity | 687 |
EVIDENCE.
| Judicial notice. | |
| A federal court will take notice of the organization of a state court to uphold a certificate to a copy of a record | 212 |
| Best and secondary. | |
| An affidavit of loss and inability to produce a paper after the use of due diligence is sufficient to let in secondary evidence of its contents | 1108 |
| Documentary. | |
| Act May 26, 1790, prescribing mode of proving judicial records of a state, does not apply to their use in federal courts | 212 |
| Copies of accounts certified by notary public, though admissible by law in state court, held inadmissible in federal court | 100 |
| A register of the treasury department is not authorized to certify to copies of papers on file in his office | 687 |
| Defendant's book of account of original entry in his own handwriting is not evidence for him | 236 |
| A check book competent but for certain interpolations is admissible | 16 |
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| A testamentary declaration of master of vessel, though not under seal, held admissible in evidence | 557 |
| Parol, etc., affecting writings. | |
| A bill of lading and invoice may be contradicted both as to genuineness and truth | 557 |
| Declarations: Admissions. | |
| Declarations of the seller prior to the making of a bill of sale are admissible to prove it fraudulent as to creditors | 1069 |
| What a party has said on one day against his interest cannot be explained by declarations on a subsequent day | 699 |
| A testamentary declaration held admissible, though impeaching negotiable paper signed by the declarant | 557 |
| At former trial and in another suit. | |
| Evidence of deceased witness' testimony at former trial must be of his very words | 212 |
| No one can take the benefit of a verdict or of depositions who would not have been prejudiced by them had they been other wise | 993 |
| Competency: Relevancy: Materiality. | |
| A power to release a debt cannot be proved by general reputation | 212 |
| Evidence of similar previous fraudulent transactions with third persons is admissible on the question of fraud in a particular transaction | 968 |
EXECUTION.
| An execution issued before the expiration of 10 days from the judgment will be set aside on motion | 787 |
| The fact that plaintiff failed to return certain securities taken for the debt will not prevent his proceeding with execution where the condition on which they were given was not performed by defendant | 693 |
| A second execution levied during suspension by order of the, creditor of the first execution takes precedence | 290 |
| A judgment of a justice of the peace cannot be seized and sold under a fi. fa. issued by a justice of the peace | 1055 |
EXECUTORS AND ADMINISTRATORS.
| An administrator appointed in another state may intervene in behalf of his intestate | 918 |
| A person receiving letters testamentary on a will duly proved is authorized to perform every act proper for an executor, notwithstanding the pendency of a question relative to the validity of the will | 1128 |
| An executor held entitled to expenses in supporting in good faith the probate of a will subsequently declared invalid, and to commissions for managing the estate while in his hands | 1128 |
| Letters granted in New York upon a suggestion of assets found will enable the administrator to recover assets in the District of Columbia, under Act June 24, 1812. § 11 | 769 |
| One administrator may release or dispose of the estate without the other | 993 |
| Money received by defendant, for the estate of intestate, in the first administrator's lifetime, may be recovered as assets in an action by a subsequent administrator | 769 |
| Construction of 1 Rev. Code N. C. c. 65, in relation to the limitation of actions against executors and administrators | 834 |
| Executor and trustee paying money to remainder-man through his counsel is chargeable with his knowledge as to bankruptcy proceedings against remainder-man | 57 |
EXEMPTIONS.
| See, also, “Bankruptcy.” | |
| A merchant is entitled to an exemption of implements or stock in trade, given “any mechanic, miner, or other person.” | 488 |
| The right of exemption attaches, as against partnership creditors, to partnership property transferred to one of the partners after dissolution | 488 |
EXPRESS COMPANIES.
| Express company held not liable for delivery by the agent of a railroad company, who was also its agent, of goods shipped by freight, and consigned to the shipper, but marked upon the railroad receipt to be delivered to another, against whom a draft was drawn and sent to the agent by express, with the receipt, for collection | 667 |
FACTORS AND BROKERS.
| The undertaking of a factor is merely a guaranty of payment of the debt of the buyer, and it is not collateral within the statute of frauds | 1159 |
| All moneys advanced by the factor on account beyond the amount agreed constitute a present legal debt giving a present legal right of action | 1159 |
| In an action to recover such surplus the factor will not be compelled to offset it against immature acceptances and bills for the principal upon which he is liable | 1159 |
| A principal procuring and receiving the benefit of advances cannot object that they do not comply with the agreement of the factor | 1159 |
FERRY.
| A ferry right (in Indiana) may be as signed | 1076 |
| The ferry right is an incorporeal hereditament. It grows out of the soil, and may be granted the same as a rent or an advowson | 1076 |
| The grantor of land excepting the right of ferry has a right to use the soil for a ferry way, and may enjoin obstruction thereof | 1076 |
FISHERIES.
| The first iron placed gives title to the whale, whether attached to the boat or not, though the whale is killed by the crew of another vessel | 1002 |
| The compact between New Jersey and Pennsylvania recognizes the right of fishery in riparian owners on the Delaware | 221 |
| The right to the bed of the Delaware river was originally in the crown, and the compact of the New Jersey proprietors of 1676 did not give a common right of fishery therein | 221 |
| The legislature of New Jersey has power to regulate fisheries on the Delaware, by prohibiting the exercise of a common-law right | 221 |
| Neither the state nor federal constitutions secures a common right of fishery in the Delaware to the people of New Jersey | 221 |
| Construction of New Jersey laws regulating fishing on Delaware river | 221 |
FRAUD.
| Parol evidence is admissible in all cases to establish fraud | 968 |
| Collateral facts are admissible to establish intent or guilty knowledge where material to the issue of fraud | 968 |
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FRAUDS, STATUTE OF.
| Agreement to extend time of payment of debt secured by deed of trust need not be in writing | 314 |
| A verbal promise to a dying person by heirs to convey his property in a certain way is void under the statute of frauds, and is not enforceable in absence of fraud | 38 |
FRAUDULENT CONVEYANCES.
| See, also, “Bankruptcy.” | |
| It is not necessary that the wife should have known of the fraudulent intent of the husband, to make void a voluntary conveyance to her | 52 |
| Delay of 18 months to record deeds of conveyance to wife through third person held a badge of fraud | 52 |
| A voluntary conveyance to wife through a third person held void | 52 |
| The wife acquires no separate rights in a homestead purchased in fraud of credititors | 895 |
GRANT.
| A state grant of a right to mine phosphate rock for a certain royalty held not exclusive. (Act S. C. March 1. 1870.) | 1165 |
| The “general title” of sutler, derived from Gov. Micheltorena, held valid | *236 |
GUARANTY.
| A guaranty made subsequent to the contract must be founded on a distinct consideration | 12 |
| A letter of credit to a particular firm is not binding if the purchase be made of other persons | 695 |
| But the guarantor is liable if the goods were purchased in his name, and he examined and approved the invoices | 695 |
| In such case no notice of the acceptance of the guaranty is necessary | 695 |
| To charge a guarantor on his principal's failure to deliver flour, a demand when due must be made, and a reasonable notice of failure to deliver given | 12 |
| A declaration on a guaranty held not demurrable because it failed to allege steps taken to collect securities | 178 |
GUARDIAN AND WARD.
| The father, if guardian, must support his child if of sufficient ability, but it is within the discretion of the court to allow him compensation out of the estate | 1003 |
| A guardian who used the ward's estate as if it were his own, filing neither in ventory nor account, must pay interest on its value | 1003 |
| A ward (in Mississippi) is not concluded by his guardian's annual account, filed and passed upon, without notice by the probate court, during his infancy | 1003 |
| The whole administration is subject to challenge and examination upon filing the final account | 1003 |
| The Mississippi statute creates the relation of creditor and debtor between the ward and guardian on the latter's failure to account to the ward on his arriving at age | 1003 |
| The pendency of the settlement of the guardian's accounts does not preclude the ward from proving a claim in the probate court | 1003 |
HABEAS CORPUS.
| The president has no constitutional power to suspend the privilege of the writ of habeas corpus, at any time, without authority of congress | 159 |
| The power to issue the writ may be exercised by the judge at chambers | 212; contra. 159 |
| The proviso in section 14 of the judiciary act restricts the issue of the writ only in cases of state prisoners | 212 |
| The judge of the court which the grand jury attended is to make the order for the discharge of prisoners against whom no indictment is found. (Act 1863, c. 81. § 3.) | 752 |
| Where the prisoner is beyond the jurisdiction, and an order for his discharge on habeas corpus would be ineffectual, it should not be granted | 159 |
| The marshal's statement on return of the writ that he had disobeyed it, and deported the prisoner in accordance with instructions from the secretary of war, is a sufficient return | 159 |
| A warrant of commitment must be under seal, and show a charge upon oath | 204 |
| If commitment be informal or insufficient, prisoner will be discharged, but recommitted in proper form if there be sufficient cause | 204 |
| A former conviction and a statute of limitations, being matters of defense, and not affecting the jurisdiction, cannot be in quired into | 796 |
| The only questions to be determined where it appears on the return that petitioner is held for trial by naval court-martial are whether the court has jurisdiction and is proceeding regularly | 796 |
| Certiorari issued on request of prisoner to committing magistrate to certify proceedings | 204 |
HOMESTEAD.
| Where a leasehold is not susceptible of division, the debtor may retain $1,000 out of its proceeds, under laws of Missouri in force in 1864 | 26 |
HUSBAND AND WIFE.
| A married woman is bound by articles of copartnership signed in her name by her husband, by her authority | 292 |
| A married woman, member of firm, represented therein by her husband, is not liable as a partner in new firm continuing old business after limitation of copartnership, without her consent | 292 |
| It is only by statute that the wife's rights and liabilities are enlarged, and only to the extent specified therein | 1101 |
| The statute rendering the separate property of the wife liable for her contracts must be strictly construed | 1101 |
| The wife cannot, as a general borrower of money, bind herself so as to render her separate property liable, no matter for what purpose the money may be afterwards applied | 1101 |
| The meaning of the words “for family supplies or necessaries,” as used in the statute, validating the wife's contract, defined. | 1101 |
INDEMNITY.
| A judgment obtained by the obligee of a bond of indemnity against the debtor is conclusive on the surety, except in case of fraud or mistake | 263, 265 |
| A breach alleged in the terms of the bond is sufficient | 265 |
| A set-off of notes subsequently acquired by the surely cannot be pleaded as an off set against the creditor's demand | 263 |
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INJUNCTION.
| Equity may inquire into the motive of one seeking an injunction | 821 |
| The kind of injury impending, and the degree of its danger as a ground for an in junction, considered | 821 |
| A proceeding to collect by distress the penalty provided for selling lottery tickets without having paid the tax will be enjoined | 909 |
| It is no objection to the granting of an injunction that defendant acts under the authority of the law, if it is unconstitutional or he exceeds or abuses his power | 821 |
| But in such case it will only be granted when the right is clear | 821 |
| Notice, previous to motion for an injunction, required by Act March 2, 1793, § 5, may be waived by appearance and filing answer | 1158 |
| The application should contain a description of the property sought to be protected, and appropriate allegations of the danger or loss impending. | 534 |
| To show waste, affidavits are admissible, on motion for a preliminary injunction, even after answer filed | 1158 |
| Allegations upon information and belief merely, unsupported by other proof, are not sufficient to sustain an injunction | 733 |
| A petition in bankruptcy cannot be tested on an application for an injunction | 534 |
| An injunction will be dissolved where it appears that complainant has been guilty of intentional delay in prosecuting his cause | 1158 |
| The right to an account in patent and copyright cases does not depend upon the right to an injunction | 685 |
INSOLVENCY.
| An assignee in insolvency in one state cannot avoid a conveyance of personalty in another state, good as against the insolvent, but invalid against creditors, under the laws of the latter state | 311 |
| A discharge of defendant under an insolvent law of the state where the contract is made, after the bail bond has been assigned to plaintiff, will not release the surety | 784 |
INSURANCE.
| Premium not required by policy to be paid in money may be paid by act of agent in accepting responsibility of third person | 229 |
| Act of agent in accepting responsibility of another for premium held to be ratified | 229 |
| A loss by fire communicated from an other building set on fire by Union forces, to prevent stores falling in the hands of at tacking rebels, held not caused by an unlawful and rebellious attack on the city, within the meaning of a proviso | *871 |
| Acceptance from a mortgagee of the renewal premium is a ratification of an as signment of the policy to him without the insurer's consent | 388 |
| A conveyance of the fee by the mortgagor to the mortgagee will avoid a policy to the mortgagor, though the insurer previously consented to an assignment of the policy | 388 |
| It seems that equity will relieve against a forfeiture from inability to pay premiums caused by the Civil War, and reinstate the insurance on payment of all premiums, with interest | 430 |
| A reply to a letter asking a continuance of insurance suspended during the Civil War that the policy is forfeited dispenses with tender of premiums | 430 |
| Erroneous affidavits of loss will not prevent recovery unless willfully false | 318 |
| Delay in furnishing proofs of loss and value will not prevent recovery unless fraudulent | 318 |
| Notice of loss to agent of insurer, in absence of knowledge of revocation of his agency, is notice to insurer | 229 |
| Provisions for notice and proofs of loss are for insurer's benefit, and can be waived. | 229 |
| The giving of proofs of death is not a “condition” of the policy, within a provision that a waiver must be made at the head office, and signed by an officer | 288 |
| An offer to compromise a suit is a waiver of proofs | 288 |
| Repudiation of liability for loss waives objection to notice of loss and the necessity of furnishing proofs | 229 |
| A parol assignment of the right of action on a fire policy after a loss is sufficient | 229 |
| Proposals, answers, and declarations, made a part of the insurance policy by its express terms, must be stated in the com plaint in an action thereon | 338 |
| Under a general denial, defendant cannot prove a breach of any conditions other than such as are conditions precedent to plain tiff's right to recover | 229 |
INTEREST.
| Interest does not accrue during the Civil War between the parties thereto | 364 |
| For the purpose of computing interest, the Civil War, so far as Virginia was concerned, terminated on the establishment of the government at Richmond, May 26, 1865. | 365 |
| An open account does not carry interest, but interest may be given as damages in an action thereon | 457 |
| A jury may give interest as damages after six months, in an action on an account for goods sold, where the custom was to charge interest after six months from the sale | 457 |
INTERNAL REVENUE.
| Authority of supervisor to issue summons to produce books and papers, made coextensive with that of assessors (Act July 20, 1868), is not affected by subsequent transfer of assessor's authority to collectors | 20 |
| A summons issued to a person not engaged in a business particularly affected by revenue laws must be limited to books and papers concerning the subject of investigation, and describe them with reasonable certainty | 20 |
| Summons reciting appropriate statute and section as authority need not refer to section of Revised Statutes embodying it | 20 |
| Adjournment of hearing does not necessitate a new summons | 205 |
| Order for attachment for failure to obey summons to produce books and papers will be conditional | 20 |
| The term “distilled spirits” (Rev. St. §§ 3289, 3299) includes all spirits which have been distilled, whether they have been subsequently rectified or not | 109 |
| The fact that a person has, in good faith, made advances upon distilled spirits, is no defense to an action for their forfeiture | 1098 |
| Testator died in 1847. Plaintiff came in to possession in 1867, under his will, after the death of the first life tenant. Held, that she was liable for the succession tax. (Act June 30, 1864.) | 595 |
JUDGMENT.
| Rendition and entry. | |
| Judgment in vacation cannot be entered unless in pursuance of a positive statute, whose provisions must be fully complied with | 851 |
| The authority to confess judgment, in Wisconsin, must be in the statutory form, and be produced before the officer | 851 |
1218
| A court of the United Slates is not empowered to grant a nonsuit in a ease where evidence has been taken | 977 |
| Operation and effect. | |
| A judgment in attachment is not to be treated as a nullity because the affidavit does not appear in the record | 362 |
| A decree of a state court awarding custody of children on divorce of parents cannot be questioned collaterally | 212 |
| A decree of divorce providing that it may be modified upon application of either party, on sufficient cause shown, is not a temporary decree, and the presumption that it remains unchanged can only be overcome by record evidence | 212 |
| The decree of the Pennsylvania orphans' court settling a deceased guardian's account, the subsequent guardian of the infant being a party to the controversy, is conclusive | 745 |
| A judgment of a foreign court of admiralty can be impeached only for fraud or want of jurisdiction | 1184 |
| To hold a sentence of a foreign court in rem conclusive on the parties, personal or public notice to the parties and proper judicial proceedings must appear | 1184 |
| The lien given upon the docket of a judgment (Civil Code Or. § 266) arises from the docketing, and not the judgment | 1091 |
| A judgment which by its terms cannot be enforced against the property of a party cannot become a lien thereon | 1091 |
| The entry of a judgment cannot be referred to for the purpose of supplying omissions or explaining ambiguities in the docket from which the lien arises by statute | 1091 |
| If, from the whole entry of the docket, the amount, date, parties, and court appear, it will be held sufficient | 1091 |
| A judgment of a justice of the peace, unlike a judgment of a court of record, is not entitled to priority in payment | 310 |
| Amendment. | |
| An entry on the clerk's docket, after judgment, intimating that it is for the use of a third person, cannot be stricken out after the term | 1146 |
| Judgment not opened after the term to permit retaxation of costs | 570 |
| Relief against: Opening: Vacating. | |
| An injunction will be granted as to portion of judgment recovered by surprise against foreigners though plaintiffs acted bona fide | 90 |
| Equity will not relieve from a judgment at law unless it appear that it is unjust and inequitable, and ought not to be enforced | 1159 |
| Wrongfully depriving a debtor of an opportunity of making a defense is no ground of the relief in equity from a judgment at law unless a defense, apparently, would have been available | 1159 |
| A judgment at law will not be enjoined to await the recovery of unliquidated damages by the debtor against the creditor unless good ground exists to believe that the former would not be able to obtain payment of his recovery | 880 |
| On motion by defendant to vacate a judgment, the court may, the proper papers being before it, render a new judgment and issue execution | 857 |
JURY.
| No peremptory challenges are allowed where a jury has already been struck on both sides | 621 |
| The provisions of Act March 3, 1865, as to waiving a jury, do not extend to district courts | 574 |
LANDLORD AND TENANT.
| A landlord does not lose his lien by a note taken for rent, which is not paid at maturity | 1086 |
| The landlord of an assignor for the benefit of creditors is entitled to his rent out of the proceeds of a sale by the trustee, turned over to an assignee in bankruptcy | 1086 |
| A lessor cannot recover, in an action for use and occupation, the rent of his tenant after his title ceased by a sale, though the tenant did not attorn to the vendee | 593 |
| Landlord held entitled to recover in ejectment without demand, where rent was in arrear, under a lease giving a right of reentry for nonpayment of rent | *1137 |
LARCENY.
| Value of stolen coins need not be averred | 28 |
| Averment that coins stolen were the “goods and chattels” of the prosecutor is sufficient averment of ownership | 28 |
LIBEL AND SLANDER.
| Evidence of words spoken in the second person will not support an averment of words spoken in the first person | 425 |
LIMITATION OF ACTIONS.
| Limitation in admiralty is determined by the wants and convenience of commerce and the analogies of the local law of limitation | 696 |
| The limitation law became effective as to nonresidents by Act Ark. Jan. 14, 1843 | 1108 |
| Construction of such act as to written obligations | 1108 |
| The statute of limitations in Indiana does not run against nonresidents; but the complainants may be barred by lapse of time | 1076 |
| Code Proe. N. Y. § 100, construed with reference to its applicability to foreign corporations | 735 |
| Act N. Y. 1788, held not invalid as applying to existing actions | 791 |
| The formal renewal of a note given by a husband to his wife's brother, in trust for the wife, with privilege of renewal for one year, is unnecessary | 16 |
| In New York the fact that the defendant is a corporation of another state is a legal answer to a plea of the statute of limitations | 735 |
| An allegation in a replication that defendant corporation was out of the state when the cause of action accrued is a sufficient legal answer to the plea that the action did not accrue within six years; but otherwise with an allegation that defendant “is” a corporation existing under the law of another state | 735 |
LITERARY PROPERTY.
| Irrespective of statute, an author has no exclusive right to multiply copies or control subsequent issues after the first publication of his work | 977, 988 |
MALICIOUS PROSECUTION.
| To maintain the action, both malice and want of probable cause must concur; but malice may be inferred from want of probable cause | 700 |
| The advice of counsel is only admissible in evidence when given before the commencement of the suit, and accompanied with a statement of the facts upon which it was given | 760 |
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MANDAMUS.
| Mandamus is the proper remedy for failure or refusal of county court to assess a tax, as provided by law, on lands made liable for local improvement | 910 |
MARINE INSURANCE.
| It is only an honest effort to obtain full disclosure and a communication of all facts obtained that will relieve assured from a charge of misrepresentation or concealment | 329 |
| A seizure made bona fide upon reasonable grounds, however unfounded in fact, held within the exception of a loss from seizure or detention on account of illicit or prohibited trade | 1184 |
| Survey at port of delivery is not necessary to maintain action for an average loss | 241 |
| To recover an average loss, held that plaintiff need not produce invoice or prove prime cost of goods | 241 |
| If deviation was not within purposes, and for objects, authorized by usage, the insured cannot recover | 241 |
| A stoppage or deviation to save property, but not to save life, will discharge the in surer | 838 |
| A stoppage to save lives in jeopardy or property in extraordinary hazard is' not a deviation | 932 |
MARITIME LAW.
| The custom of a particular port, embracing an entire business, held to supersede the general maritime law | 1002 |
MARITIME LIENS.
| Want of jurisdiction to enforce lien in particular locality not fatal to its existence | 918 |
| The builder of a foreign vessel has a lien for work and materials | 68 |
| A vessel is not chargeable with supplies in a foreign port unless furnished on her credit and an apparent necessity existed therefor | *1088 |
| Lien not valid beyond the termination of voyage for which supplies were furnished | 918 |
| Owners of cargo disposed of in foreign port to raise money for necessary repairs have lien upon vessel for value of goods at destination | 918 |
| Work done upon a vessel in the dry dock, in scraping her bottom preparatory to coppering, is not of a maritime character | 1136 |
| The master of a vessel which brings to the United States the crew and a portion of a wrecked vessel has a lien on the property for the freight, but not for passage money of the seamen | 1122 |
| A lien given by local law upon a vessel for supplies and materials furnished in a home port outranks a mortgage lien | 1134 |
| Seamen are not entitled to a lien for an increase of wages in an intermediate port prior to that of creditors for advances | 722 |
| As between claimants of same class last furnisher of supplies sometimes preferred to the first | 918 |
| Libel by firm of three members against vessel in which two of them owned an interest cannot be maintained | 256 |
| Sale of a vessel on credit does not destroy a material man's lien | 68 |
| A sale of a vessel by a state court is subject to prior maritime liens in the purchaser's hands | 817 |
| The district court in admiralty in Pennsylvania will take jurisdiction of claims for work and materials furnished to a domestic ship, the local law giving a lien therefor | 876 |
| Parties may be paid out of surplus on petition, though they could not sustain an original action in rem | 918 |
| The proceeds of a sale may be appropriated in payment of liens on the original property other than that under which it was sold, but not of debts arising on personal contracts | 1122 |
| A creditor of libelant to whom money in court has been decreed to be paid cannot compel its appropriation to his debts | 1122 |
| Lien of a material man is assignable | 918 |
Married Women.
| See “Husband and Wife.” |
MARSHAL.
| The acts of the marshal after the appointment of a new one, and before he received notice thereof, are good | 1062 |
| A marshal selling under a vend, ex., has no power to pay arrears of taxes out of the proceeds of other property sold under the same writ | 694 |
| Fees, when not regulated by law, are to be allowed upon the principles of a quantum meruit | 975 |
| In case of dispute the matter will be referred to an auditor | 975 |
| The marshal has no right to the fees provided by law in case of settlement where the settlement is made before the claimant appears in court | 848 |
| A marshal who takes sureties not free holders on a replevin bond (in Indiana) is liable on their failure | 457, 460 |
| A declaration in an action against a marshal for neglect to make the money on a judgment must negative every presumption of duty on his part | 457 |
| An averment that the marshal took insolvent sureties, and not freeholders on a replevin bond, is sufficient to charge him | 457 |
MECHANICS' LIENS.
| On “factory and other buildings” will not include machinery or fixtures or sup ports therefor, not necessarily connected with or forming part of building | 69 |
| Promissory notes, transferred or discounted, and taken up on maturity by payee, will not be treated as payment | 69 |
MORTGAGES.
| A deed absolute may, on bill in equity, be shown to be a mortgage, by evidence of the circumstances under which it was given and subsequent transactions and admissions between the parties | 244 |
| A grantee assuming a mortgage is liable to the mortgagee both in equity and at law, and cannot be released without the consent of the mortgagee | 317 |
| In such case the mortgagee will be entitled to a deficiency decree against him on foreclosure | 461 |
| The bringing of a foreclosure suit is a sufficient acceptance of the grantee's promise | 461 |
| A power in a mortgage to sell the mortgaged property is a matter of contract, and will not be overthrown by the court | 1056 |
| A mortgage to secure a debt executed by public act according to the law of Louisiana, although it imports confession of judgment, and there is a statutory remedy on it, may be enforced by suit in equity | 186 |
MUNICIPAL CORPORATIONS.
| Counties and towns are, as to their corporate existence, completely within the control of the legislature | 30 |
| What constitutes buying up “any provision or article of food coming to market” | 962 |
1220
| A warrant for the violation of a by-law and the judgment thereon should specify the by-law and the manner of violating it | 891 | |
| Statutory authority to blow up buildings to prevent the spread of fire, when consented to by certain officers, does not render the city liable for buildings blown up without such authority | 1037 | |
| The liability of a city for buildings destroyed to stay the progress of a fire is wholly statutory, and plaintiff must bring his case strictly within the statute to sustain a recovery | 1038 | |
| A city may be liable for the wrongful acts of its officers where, if not wholly ultra vires, they were expressly authorized by the governing body, or were within the scope of their duties, and subsequently ratified | 1038 | |
| No action at law can be maintained against a town which has been obliterated | by legislative act | 30 |
| A contract entered into by a town is not destroyed and annulled by its subsequent obliteration by legislative act | 30 | |
| Municipal corporation to which the territory of another is assigned, on its being ligislated out of existence, must pay its existing debts in the ratio of territory obtained | 30 | |
| Municipal bonds, though issued in violation of a condition that they should only be issued upon a certain amount of work being done, are enforceable in the hands of innocent purchasers | 732 |
NAVIGABLE WATERS.
| The common-law rule that rivers are only navigable where the tide ebbs and flows is not applicable in this country | 1076 |
| The proprietors of New jersey had no right in the Delaware river beyond low water mark | 221 |
NEGLIGENCE.
| The failure of a pedestrian to use reasonable care and caution in crossing a swing bridge will prevent recovery for his death, even though the city was negligent. | 1196 |
NEW TRIAL.
| Not granted where construction given by jury to the evidence appears to be consistent with the justice of the ease | 559 |
| A verdict awarding excessive damages may be set aside in the discretion of the court | 760 |
| Granted where special verdict is ambiguous or uncertain | 144 |
| A verdict not founded upon either of two distinct grounds claimed, but partly upon both, will be set aside | 361 |
| A verdict will be set aside for a misdirection which might have noticeably affected it | 604 |
| The reliance of counsel upon an obiter dictum is no ground of awarding a new trial | 1031 |
| Where damages are excessive, the court may allow plaintiff to remit the excess | 760 |
NOTICE.
| Publication “once a week, for three successive weeks,”–meaning of | 121 |
OFFICE AND OFFICER.
| The presumption of law in favor of the innocence of a public officer charged with fraud may be overcome by proof of previous delinquencies of a similar nature | 968 |
| The sureties on an official bond are liable for noncompliance with subsequent as well as past laws, or orders justified by law. | 860 |
| The rule that payment is to be applied to the oldest debt if the debtor gives no directions is applicable to the liability of sureties on successive bonds | 860 |
PARTIES.
| Bill to obtain benefits of verbal promise to dying person by heirs to convey his property in a certain way must make executors or administrators parties | 38 |
| All persons whose interests will be affected should be made parties unless without the jurisdiction of the court, when such fact should be stated | 1076 |
| Where the proper parties are not made, the court will suspend decree to bring them in | 1076 |
| An objection to the competency of an administrator as a party claimant must be taken on his appearance | 918 |
| An objection that some of plaintiffs have no interest cannot be made at the hearing. | 1076 |
| That persons are unnecessarily made defendants does not oust the jurisdiction as to those who are properly before the court | 1076 |
PARTNERSHIP.
| An agreement which does not provide for sharing in the profits does not constitute a partnership | 757 | ||||
| The receipt of a stated portion of the profits of an enterprise as compensation for services will not alone constitute the recipient a partner | 349 | An agreement to contribute capital or labor to carry on a business with equal participation in the profits will constitute a partnership as to third persons, although the agreement expressly stipulates to the contrary, and although such third persons had no knowledge of the actual relation | 349 | Holding one's self out to the world as a partner will make him liable as such to one who may be inferred to have knowledge thereof, though he in fact has no interest in the concern | 176 |
| Agreement between owners of tug and barge to operate them jointly in the freighting business, profits to be shared in proportion to the stipulated values of the vessels, constitutes a partnership | 1024 | ||||
| To rebut declarations, as conducing to establish a partnership in fact, a parol contract between the parties may be proved | 176 | ||||
| The assignment of all the interests in a firm to a copartner carries the right to the exclusive use of a firm trade-mark | 549 | ||||
| Dormant partners need not give notice of the dissolution of the firm | 349 | ||||
| Admissions of a partner after dissolution are inadmissible to charge the firm. | 455 | ||||
| Action for goods sold belonging to a partnership, of which defendant was ignorant, must be brought in the name of all the partners | 231 |
PATENTS.
| The power of congress. | |
| A retrospective act giving a patent for an invention already in public use is within the power of congress | 648 |
| Congress may, by special act, grant an extension of a patent which has been once renewed | 729 |
| Nature of the grant. | |
| The exclusive grant in a patent is the construction and use of the thing patented. | 1095 |
| Patents, being granted to promote science and the liberal arts, and not as monopolies, are to be liberally construed | 648 |
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| An act giving a patent will not be construed to operate retrospectively unless such construction is unavoidable | 648 | ||
| An invention secured by patent cannot be taken by the government without compensation | 1190 | ||
| Patentability. | |||
| The application of a principle to some practical and useful purpose, and not the princple itself, is patentable | 96 | ||
| A new and patentable use suggested in the specification does not prevent the invention being anticipated by a prior machine of substantially the same construction | 945 | ||
| A new application of a principle not producing a new result is not an invention. | 671 | ||
| The true criterion of mechanical equivalence is identity of purpose, and not of form or name | 997 | ||
| The substitution of a wheel and axle for a screw held not to constitute invention | 653 | ||
| The change of lateral motion from one part of a machine to another held no invention | 653 | ||
| Experiments of others not resulting in discovery are no bar to a patent | 96 | ||
| The question of novelty is to be settled by a comparison of prior machines with the machine patented, rather than the machine in use | 598 | ||
| The question of novelty does not depend upon comparative value | 675 | ||
| Superiority over prior invention is proof tending to show novelty | 441 | ||
| A combination of old devices, involving only mechanical, and not inventive, skill, is not patentable | 610 | ||
| A combination producing a new and useful result, though of old devices, is patentable | 836, 997 | ||
| A combination may be legitimate when all the elements perform their several functions in immediate succession | 441 | ||
| “Useful invention” means an invention which may be applied to a beneficial use in society, in contradistinction to one injurious to the moral health or good order of society | 37 | ||
| In determining whether an invention is useful, it is immaterial whether its utility be general or limited | 37 | ||
| The patent raises the presumption of utility | 96 | ||
| Who may obtain patent. | |||
| Improvements introduced by workmen without patentee's knowledge cannot be appropriated by him | 259 | ||
| Act Aug. 29, 1842, § 7, applies to design patents | 883 | ||
| Prior public use or sale. | |||
| Public use prior to discovery by patentee, however limited, if other than experimental, defeats patent | 37, 944 | ||
| Neglect to apply for a patent within two years after a sale or public use is fatal. | 675 | ||
| “Public use” for more than two years which will defeat a patent, means use in public, not necessarily use by the public. | 537 | Public use more than two years before application, if in good faith for experimental purposes, will not avoid the patent | 441 |
| The two-years public use must be dated back from original application, and not from amended specification, 26 months later, where there is no evidence of abandonment | 96 | ||
| A technical withdrawal of the first application is not necessary to interrupt the continuity between it and a succeeding one. 320 Continuity of successive applications is a question of fact | 320 | ||
| A delay of less than a year in filing a new application after final rejection upon appeal held not unreasonable | 675 | ||
| A new application, made about two years after the first application, which was rejected, amended specifications being filed, and finally rejected upon appeal, held to relate back to the prior application | 675 | ||
| A patent will not be invalidated on the testimony of a single witness of the public use of an alleged prior machine some 20 years before | 590, 598 | ||
| Abandonment—Laches. | |||
| Concealment of invention for a number of years will forfeit right to patent as against later discoverer and patentee | 260 | ||
| Abandonment or dedication to the public may be made after patent granted | 96 | ||
| An abandonment cannot be predicated upon two years' delay in filing the application, due wholly to the neglect of the patentee's solicitors, of which he was ignorant | 441 | ||
| Delay of 10 years to amend an application or reverse the decision of the patent office is not excused by the fact that the rejection of the application was wrongful | 320 | ||
| Undisputed acts of abandonment are entitled to more weight than testimony of an intent not to abandon | 320 | ||
| Caveat. | |||
| Will not protect inventor who allows his invention to go into public use before application filed | 96 | ||
| Application and issue. | |||
| The applicant need not point out all possible contrivances by which the principle of his invention can be applied | 622 | ||
| Ambiguity and uncertainty, requiring conjecture to make out the true meaning of a claim, will invalidate the patent, regard less of the question of good faith, and irrespective of individual merit | 610 | ||
| The new parts in a patent for a combination with old parts must be distinctly pointed out | 607 | ||
| The patentee is not controlled by the title of the patent, but only by the patent, specifications, and drawings | 96 | ||
| A patent for ornamental designs for figured silk buttons held not to cover the process for winding the silk upon the molds | 883 | ||
| Where the right consists in certain instruments by which a thing of a particular structure is made, the structure or use of these instruments is prohibited | 1095 | ||
| The failure of a machine, which it is claimed will turn any irregular surface or form like the model, to turn a square shoulder, is too remote a defect to destroy the patent | 653 | ||
| Appeals from commissioners' decisions. | |||
| No appeal lies where the issues tried were the same, in effect, as those tried on a former interference | 1053 | ||
| The court may assume that the time for appeal was enlarged by the commissioner | 537 | ||
| An assignment of a reason of appeal must point out the precise matter of alleged error with such reasonable certainty as to satisfy an intelligent mind | 537 | ||
| That a decision rejecting an application is against evidence is too vague and in definite as a reason of appeal | 537 | ||
| The court will consider the correspondence between the commissioner and applicant, wherein facts are stated, acted upon, and not denied | 997 | ||
| Claim of utility not made by specification is of but little weight on question of novelty | 452. | ||
| Reissue: Disclaimer. | |||
| A reissue is valid where the only ingredients which entered into the invention were described in the specification and specified in the claim of the reissue | 868 |
1222
| The question whether the claim of a reissue is vague and uncertain or too broad is one of law, to be determined by the state of the art | 610 |
| The commissioner's decision awarding a reissue is conclusive in the absence of fraud or irregularity arising on the face of the papers or clear repugnance between the original and the reissue | 441,610 |
| The issue of fraud can only be raised by distinct and special allegations in the plea or answer | 610 |
| As to the sufficiency of such allegations in general | 610 |
| A reissue can be impeached for fraud only by bill in equity in the name and by the authority of the United States | 441 |
| A surrender and correction of a patent give effect to it in all cases of infringement subsequently accruing, though the patent was originally invalid, and will be considered as having been made at the time it was originally issued | 706,729 |
| Extension: Renewal. | |
| Act June 30, 1834, granting extension of patent to Blanchard, held without force be cause of variance in describing the date of the patent.' | 645 |
| The grant of extension to Blanchard by Act Feb. 6, 1839, of a patent for machine for turning irregular forms, held valid, and such act construed | 648, 653 |
| Under such extension, assignees of the old patent were given equally exclusive privilege in the extended term | 653 |
| An assignee or licensee of a patent or a machine constructed thereunder has no right or interest in the renewal of a patent, unless given by the statute or by express contract | 729 |
| A person building a patented machine between the expiration of the term and the granting of an extension held not entitled to use the machine after a second extension, though the act granting the first extension contained a proviso allowing the use of machines so constructed | 628 |
| Assignment. | |
| A paper purporting to be an assignment of an expired patent is void as an assignment, though it may be enforced as a power of attorney | 108 |
| An assignment is rendered invalid by the omission to record it within three months (Act 1876, § 11), as against subsequent bona fide purchasers for valuable consideration, but not as between the parties | 653, 1096 |
| An assignment, after three months from a prior unrecorded assignment to a third person, with notice, is valid | 1096 |
| Licenses. | |
| The right to construct a patented machine is distinct from a right to use it | 334 |
| The right to use necessarily implies the right to repair, or, when destroyed or worn out. the right to purchase another. | 334 |
| Neglect to pay price for license and its abandonment is a forfeiture, and licensee is liable as an infringer | 108 |
| The patentee has no right, either during the original term or the extended term of his patent, to a patented machine constructed by another with his consent, or to prevent its use | 502 |
| Surviving partner is entitled to license granted to the firm | 84 |
| It is no defense by way of plea in bar to a suit for license fees that plaintiff was not the first and original inventor | 446 |
| Infringement of exclusive right granted by patentee to defendant is no defense by way of special plea in bar to a suit by him for license fees | 446 |
| License to use held to be inferred from the receipt of compensation for a use acquiesced in for a long time, though the patentee at the time reserved the right to claim an additional compensation | 640 |
| The patentee is estopped to deny the validity of a transfer by a licensee where he has made settlement with and received royalties from such transferee | 726 |
| Sale of patented machine or product. | |
| The purchaser of a machine from a patentee during his original term may continue use during the term extended by act of congress | 651 |
| The sale of the product of a patented machine is not an infringement, but, if made by the manufacturer, he is liable for damages, and may be enjoined | 1096 |
| The injunction may issue by the court having jurisdiction of the person, although the machine may be used beyond its jurisdiction | 1096 |
| The court will not enjoin the sale of a similar article under the same patent, in a particular district assigned to an individual, though manufactured in a different district. | 1095 |
| Infringement—What constitutes. | |
| The mere unauthorized making of a patented machine, although it is neither used nor sold, is an infringement | 726 |
| The construction of two machines under authority to use one only is an infringement, though both were never in operation at the same time | 726 |
| The sale of an article for use in a patented combination to persons who intend so to use it is an infringement, although the manufacture and sale would not per se be an infringement | 1070 |
| A patent for a particular structure intended to accomplish a particular end does not import an exclusive right to every possible mode of accomplishing the same end | 633 |
| A question of identity depends upon whether one machine produces the same result by substantially the same principle or mode of operation as the other | 633, 638 |
| Tests for determining the identity of machines on questions of infringement | 617 |
| If the mechanical combinations of the members of the two machines be such that the action and mode of operation differ, they are not mechanical equivalents | 598 |
| Hydraulic pressure operating through a piston rod for moving the jaw in a stone crusher held a mechanical equivalent for toggle levers operated by a lever and crank rod | 601, 602 |
| A change in the mode of construction without changing the principle, involving a loss of power, but gaining a quicker motion, will not prevent the machine being an in fringement | 590 |
| It is an infringement to use a part of the invention embraced within the patent | 604 |
| It is no defense that the particular form which defendant has infringed is unnecessary to the operation of the apparatus | 584 |
| Blanchard's patent for a machine for turning and cutting irregular forms is infringed by a machine using the same combination, but which will make only wagon spokes | 617 |
| There is no infringement of a patent for a combination unless all the essential parts of the combination are substantially imitated | 96 |
| A patent granted for a mere combination of old devices to produce a new result is not infringed by a production of the same result without using all of such devices | 711 |
| The patentee can lawfully claim an arrangement which he uses, when used for the purpose for which he employs it, not withstanding he disclaims such arrangement, irrespective of the purpose for which and the manner in which it is employed | 517 |
1223
| Infringement—Remedy, generally. | |
| A patentee who has conveyed the exclusive right to the patent within the jurisdiction of the court, with the reservation of his rights in suit, is entitled to damages only to the time of the conveyance, and not to an injunction | 868 |
| Where, owing to many transfers, it is doubtful whether action at law for infringement can be maintained, equity will affordrelief | 334 |
| Where the use of a patented machine is not unlawful, the patentee will be denied relief in equity | 640 |
| ____ Who liable. | |
| The purchaser of patented articles from an infringer is not liable as an infringer | 652 |
| The recovery of profits and damages from the manufacturers of an infringing machine bars a recovery from a user for its use | 888 |
| Authority to contractor for street pavement to use a patented process will relieve the city from liability for infringement, notwithstanding a reservation to the contrary | 355 |
| The unlawful use of a patented device by city officials for city purposes is not an act of nonfeasance or misfeasance, within a statute relieving the city from liability | 706 |
| ____ Preliminary injunction. | |
| Denied where defendant, setting up a license, offers to pay into court the amount of complainant's fixed license fees to abide a final decision | 594 |
| Denied where the patentee, before making his application, had sold a large quantity of the manufactured article in packages marked as imported | 883 |
| The court should grant the preliminary writ without evasion if of opinion that plaintiff is entitled to it by law | 638 |
| A prior decision is controlling in the absence of new evidence | 583 |
| A decision between the same parties in another circuit is not controlling where the alleged infringing articles are not shown to be the same | 589 |
| Complainant will be given the benefit of rights adjudicated against a defendant in another suit in which defendant herein contributed to the defense | 441 |
| ____ Procedure. | |
| A person owning the exclusive right of use within a district may prosecute for piracies therein | 334 |
| A suit at law for the infringement of a patent for turning irregular forms, by the turning of shoe lasts, is properly brought in the name of the patentee, rather than one who has an assignment of the right to use the patent for that purpose | 624 |
| Parties to suit in equity held not competent witnesses | 640 |
| The question whether a design patent is abandoned to the use of the public by putting the manufactured article onto the market, two or three months before the application. held to be a question of fact | 883 |
| The verdict of a jury in a patent case is of the same force as a verdict in any other action at law, and a verdict on conflicting evidence will not be set aside | 652 |
| Notwithstanding prior decisions upon the validity of the patent, held, that the case should be tried anew upon additional facts proved | 598 |
| ____ Evidence. | |
| Actual tests are admissible on question of practicability where evidence is conflicting. | 104 |
| An admission as to time of discovery, made deliberately to intending purchaser, is admissible against inventor to prove laches | 260 |
| Licensee held entitled to offer in evidence letters patent of his licensor as a defense to an action against him for infringing a prior patent | *683 |
| Both parties, when claiming under patents, are entitled to the benefit of the presumption that the patent is prima facie for a new and useful invention | 633 |
| Persons alleging invalidity of patent after it has been repeatedly sustained in other circuits must show indisputable grounds | 602 |
| ____ Bond for damages, etc. | |
| Where defendant gave bond and continued to manufacture the alleged infringing article, held, that complainant, though not within the district at the time, should be enjoined from bringing suits against his vendees | 450 |
| Where complainant's right will be fully protected, defendant will only be required to give a bond and file accounts, though patent has been repeatedly sustained | 601 |
| ____ Damages. | |
| Accounting may be had, though the term of the patent expires before the final hearing | 685, 726 |
| Where the amount of the license fees varies greatly, it cannot be considered in estimating damages | 505 |
| The actual profits are those which are made by the use of the patented device, and not those made upon the machine as a whole | 1194 |
| Plaintiff held entitled only to the profits accruing from the use of his patent, the burden of proving which is upon him | 505 |
| The difference in profits between the use of complainant's patent and other methods open to the public generally is the measure of compensation | 96, 525 |
| Price of coal saved by use of improvement for utilizing waste heat held proper measure of damages | 119 |
| The rule that gains and profits are the proper measure of damage in equity suits is inapplicable where the injury sustained is greater than such amount | 1194 |
| Interest on profits will not be allowed | 1194 |
| Plaintiff's expenses and counsel fees in prosecuting an action cannot be allowed by the jury as part of his actual damages | 653; contra, 957 |
| The provision as to trebling the verdict does not apply to mere collection suits brought upon expired patents | 108 |
| ____ Injunction. | |
| It seems, will be denied where cessation of alleged infringement would be injurious to the public | 594 |
| Injunction withheld on final hearing where infringing hose couplings were necessary for the daily use of defendant city in the prevention of fires, but accounting decreed | 706 |
| ____ Violation of injunction. | |
| An attachment for contempt for violating an injunction will not be issued unless the violation is plain and clearly proven | 448 |
| The question of identity of the machines on motion for commitment for contempt for violating an injunction is one of fact | 448 |
| In determining such question, in the absence of models, the testimony of experts is controlling | 448 |
| Various particular inventions and patents. | |
| Beverages. No. 193,476, for an improvement in syrups and mineral waters, held valid | 1070 |
| Bottle machine. Reissue No. 5,903 held invalid for a want of novelty | 944 |
| Casters. Blake's patent for improvement in, held valid | 604, 607 |
| Cheese presses. Reissue No. 5,256, for improvement in, held valid | 868 |
1224
| Coupling bumpers. Bishop's invention of sliding block with V-shaped chamber, for guiding link, held not patentable | 452 |
| Firearms. Cutting away obstructing portion of hinge of breach piece, quaere, whether patentable | 259 |
| Furnaces. No. 12,678, No. 18,874, and reissue No. 440, for improvement in furnaces for burning wet fuel, etc., construed, and held valid | 517 |
| Grain separators. Patent of December 20, 1859, held valid | 886 |
| Hose couplings. Reissue No. 3,768, for improvement in, held void as for worthless invention | 707;contra 709, 711 |
| Such patent held infringed | 709 |
| Lamps. Reissue No. 7,417, for improvement in, held invalid | 540 |
| Portable steam engines. No. 21,059, for a bed plate, construed, held valid and in fringed | 675;see, also, 671 |
| Rubber-cutting machines. Reissue No. 5,903 held invalid for want of novelty | 944 |
| Seed-hulling machine. Reissue No. 1,299 held valid | 441 |
| But not infringed | 448 |
| Sewing machines. Anti-frietion surfaces for thread held not patentable | 284 |
| Soda-water apparatus. No. 40,811, for improvement, held valid | 584 |
| Soda-water apparatus. Reissue No. 2, 711, for improvement, held valid in part, and infringed by apparatus constructed under patent to Matthews, Oct. 3, 1865 | 357 |
| Stone crushers. Reissue to Blake, January 9, 1806, for improved machine, held valid and infringed | 590, 610 |
| Stone crushers. Blake's patent for an improved machine held not infringed by Hamilton's machine | 598, 602 |
| But held infringed by machine constructed under Smith's patent | 601 |
| Thistle digger. Boughton's invention held not anticipated by Hilton's invention | 997 |
| Turning lathe. Blanchard's patent for a machine for turning irregular forms construed, and held to be infringed | 622, 638 |
| Wood-bending machine. Blanchard's patent of December 18, 1849, reissued November 15, 1859; and Morris' patent of March 11, 1856, reissued May 27, 1862,—construed, and held to be for different machines | 633 |
PAYMENT.
| A simple contract debt is not extinguished by taking new security, unless so agreed, or the security is of higher nature | 305 |
| A provision that work shall not be done for less than seven dollars per 1,000 feet is satisfied, although the work at that rate was paid for in lumber instead of cash | 726 |
| Act March 3, 1843, fixing the value of the “mark,” does not apply to its value for commercial purposes | 722 |
| The amount decreed to seamen shipped at Hamburgh for a return voyage, which was broken up at New York, is the amount of their wages in Hamburgh money reduced to United States coined dollars, without adding anything for the premium on gold | 722 |
| Credit for payment in Confederate money for damages to land held should be scaled down to the gold value at the time, in computing the liability of the one receiving it | 365 |
| Judgment for sterling money. Difference between English and Irish sterling | 842 |
| Under an act authorizing the court to settle the rate of exchange, witnesses may be examined to prove such rate | 842 |
| The presumption that negotiable security given for a preexisting debt is in payment may be controlled by proof to the contrary | 305 |
| Payment of an account held to be sufficiently shown by authority to another to settle it, followed by the rendition of an account by the creditor showing credit in full | 1159 |
| Books of a bank, not showing whether checks drawn upon it were payable to bearer or to order, nor the names of the payees, are not evidence of money paid to any particular person | 1100 |
| Payment is no ground of quashing the proceedings in a suit on the debt | 407 |
PLEADING AT LAW.
| Under the plea of nul tiel record to scifa. on a judgment entered on the penalty of an indemnity bond, the judgment only is put in issue | 263 |
| An unsworn plea denying the signature to the instrument on which the action is brought admits the signature | 180 |
| On demurrer judgment will be given against the one who committed the first fault in pleading | 735, 791 |
| The general plea of non est factum is proper where an obligation under seal is void ab initio, but a special plea is required where it is merely voidable | 968 |
| The verification of a plea should be made when it is filed; it cannot be made at the trial | 180 |
| The citizenship of parties may be stated in the present tense in an amended declaration | 446 |
| Amendment of declaration as to defendants not served will not authorize plea of statute of limitations | 102 |
| Objections to a replication for not alleging time and place and for duplicity can be taken only by special demurrer | 735 |
| A defect of jurisdiction appearing in the pleadings may be taken advantage of by motion in arrest of judgment or writ of error | 494 |
PLEADING IN ADMIRALTY.
| The libel should show jurisdiction | 870 |
| A libel for possession of a vessel should unequivocally state the extent of libelant's interest, and that he was owner at the time of filing the libel | 1177 |
| An amendment will be allowed where a defect in such particular arises from accidental omissions | 1177 |
| A supplementary libel alleging new matter and an answer may be filed after appeal, in the discretion of the court | 932 |
| An admission in an answer to a libel for seaman's wages that the seaman shipped for the voyage, and performed the services, is sufficient to entitle him to recover without evidence, though defenses are set up | 130 |
| Libelant in a suit for seaman's wages is entitled to use an admission of the answer as to the date of his service without being bound by the allegation of the answer as to the time when it began | 290 |
PLEADING IN EQUITY.
| A party may frame his bill in the alternative, if the title to relief will be the same in either alternative, although the case be presented upon allegations resting on wholly distinct and independent grounds | 1138 |
| A demurrer to evidence is not a good plea to a bill in equity | 534 |
| The verification of the bill may be taken before a notary | 615 |
| It is good cause of exception to an answer that, to the denial that defendant has no knowledge of the facts charged, it is not added “that he had no information or belief” of them | 1132 |
| The allegations and proof must set forth and support the same cause of action. Relief cannot be granted for matters not charged | 1138 |
1225
| Complainant is not entitled to relief under a bill setting up a case of fraud, by establishing the facts independent of fraud, although they might create a case under a distinct head of equity | 1138 |
| A bill in equity averring a deed to have “been a mortgage need not aver that it be came so by a defeasance, in order to let in. proof of a defeasance | 252 |
POST OFFICE.
| Payments by the post-office department to the treasury may be carried in quarterly”by large” covering warrants.“ | 860 |
| The sureties on the official bond of a deputy postmaster are liable for his neglect as an agent of the postmaster general | 860 |
POWERS.
| A power of attorney is revoked by the death of the principal, except so far as the attorney has an interest coupled with the power | 878 |
| While the intention to execute a power of appointment must be clear, it need not appear in express terms | 559 |
| A devise of “all the residue of my estate, of every name and kind,” in a residuary clause, held sufficient as the execution of power of appointment | 559 |
PRACTICE AT LAW.
| A voluntary discontinuance by plaintiff will not prevent another suit | 407 |
| Plea of limitation not permitted after rule day upon affidavit showing it to be a fair defense under the circumstances of the case | 9 |
| Papers are not made evidence by a notice calling on the opposite party for them, and he may waive reading them | 699 |
| A formal order must be entered upon the decision of the court. The decision will not be regarded as an order | 808 |
| Defendant not ruled to argue a demurrer at the term joined in by him | 1076 |
PRACTICE IN ADMIRALTY.
| There can be no suit in rem unless there is a lien on the thing sought to be charged | 876 |
| A claim for wages and one for damages for an assault committed on the same voyage may be joined in a libel in personam | 897 |
| Objection to jurisdiction founded on personal privilege of declining the forum must be made before general appearance and answering to the merits | 41 |
| To discharge a foreign attachment, where defendant is not found, he must furnish a bond to satisfy the full decree | 109 |
| A cause of possession, civil and maritime, must be conducted as a proceeeding in personam | 621 |
| A suit in admiralty will be conducted, tried, and decided according to the usage and practice of that court, though jurisdiction is dependent upon a local law | 876 |
| Evidence taken must be in writing | 932 |
| Objections to rulings of commissioner on admission of evidence, on reference to as certain damages, may be brought up on exceptions after report made, or on certificate pending reference | 11 |
| In a suit in personam, defendants not being within the district, and not appearing, the decree will go only against the property attached | 1100 |
| Under a stipulation for value, making the rules of court a part thereof, where the decree is in excess of the amount, interest is recoverable | 128 |
| Sureties in stipulations or appeal bonds are not required to appear before the court for examination concerning their property after final decree | 664 |
| A final decree for payment of money in a suit in rem is enforced, as prescribed by rule 21, by execution | 664 |
| The court has no power to enforce the decree by sequestration of the sureties' property, nor by contempt proceedings | 664 |
PRACTICE IN BANKRUPTCY.
| See, also, “Bankruptcy.” | |
| A claim may be amended by adding the amount if done in good faith | 570 |
| A formal plea in bankruptcy will be treated as a motion | 867 |
| A creditor of a corporation upon whose petition it has been adjudged a bankrupt should be allowed to intervene to prevent bankruptcy proceedings subsequently commenced in another state | 946,951 |
PRACTICE IN EQUITY.
| Where newly-discovered testimony would not change the result, a rehearing will not be granted | 252 |
| A rehearing should be allowed in equity only for reasons sufficient to justify a new trial at law | 252 |
| On application for leave to file a new bill upon the discovery of new facts, the counter affidavits must be examined and considered by the court | 680 |
| A delay of 18 months after the discovery of new facts held fatal to the application. | 680 |
| Where the question of priority of invention was put in issue, evidence of other alleged anticipations is merely cumulative. | 680 |
| Practice as to issuance of commission of rebellion. | 996 |
PRINCIPAL AND AGENT.
| Authority to sell real estate must be clear and distinct | 914 |
| The answer “I will sell” on terms specified, to a letter from a real estate agent asking for authority to sell, does not confer authority | 914 |
| Agent not having authority to sell real estate cannot bind principal by receipt of earnest money | 914 |
| Failure to answer letters from an agent as to the consummation of a sale does not constitute ratification | 914 |
| Acts of agent in accepting notes and mortgages in payment are ratified by creditors' refusal to return them and bringing suit thereon | 177 |
| The duties of receiver of a bank and agent held not inconsistent | 178 |
| The Civil War did not revoke an agency established in a seceding state before the war by a citizen of a loyal state | 976 |
| An agent in Virginia who collected a claim for a citizen of Kentucky in Confederate money, and invested it in Confederate bonds, by order of the state court, held liable for the value of the Confederate money as of the date when received | 976 |
| An agent is not personally liable on trans actions with his principal made through him unless so expressly agreed | 1130 |
| The remedy for an illegal act of an agent in refusing to deliver goods sent by the principal to him for others is against the principal | 1130 |
| Declarations of an agent made after the relation has ended are not binding upon the principal | 699 |
1226
| The motives or inducements of a contract with an agent may be proved by his letters or declarations admitting facts | 699 |
PRIZE.
| It is the duty of captors to bring in the prize crew, or at least the master and principal officers, with the prize, for adjudication | 962 |
| Neutral property in an enemy's ship is for feited by the treaty with France (article 14) | 810 |
| Portion of cargo clearly owned by neutral not confiscated because of his claim of ownership to the whole, unless fraudulentlmade. | 299 |
| Mortgaged property put on board a belligerent vessel by the mortgagor, rightfully in possesison, is subject to capture | 810 |
| Either spoliation of papers or falsified destination creates a legal presumption of hostile ownership | 270 |
| Where there has been destruction of papers and falsified destination, further proof refused | 270 |
| Previous notorious enemy ownership and illicit trade held sufficient to condemn vessel where bona fide purchase and voyage not shown | 130 |
| A capture held collusive, and further proof denied to the captors | 962 |
| In the case of collusive capture, the vessel was condemned to the United States. | 962 |
| Members of the crew of a privateer on a cruise broken up by distress are not entitled to share in prizes made in a secondcruise | 625 |
| The courts of other nations may inquire into the question of jurisdiction of a foreign court of prize acting in rem | 1184 |
| Vessel and cargo forfeited for attempt to run a blockade | 131,695 |
PROHIBITION, WRIT OF.
| The circuit court has power to issue the writ of prohibition only when necessary for the exercise of its jurisdiction | 407 |
| A circuit court having jurisdiction of a petition for review in bankruptcy will not prohibit suits by the petitioner in the state court in respect to the property involved | 407 |
PUBLIC LANDS.
| French grantees of Louisiana lands held not entitled to indemnity from the United States for land diverted from them by a grant under the succeeding Spanish government | 1001 |
| In the case of overlapping patents, held, that the patentees under the elder grant, though it was the last finally located and patented, had the better right | 466 |
| A selection of other land by claimant, and a disclaimer made after a location against his protest, held would not estop him from setting up title derived under his patent sub sequently granted, as against those locating on the same land before the final location of the grant | 466 |
| The commissioner of the general landoffice has jurisdiction to revise or set aside a survey of a Mexican grant made under Act March 3,1851 | 466 |
| The district court had jurisdiction under Act June 14, 1860, to revise the location of the Boga grant | 466 |
| Proceedings by the district court to confirm surveys of Mexican grants are judicial, and its judgments conclusive | 466 |
| Such proceedings are in the nature of proceedings in rem, and all parties interested must intervene or be concluded | 466 |
| The proceedings of the board of land commissioners for confirmation of Mexican grants are judicial in their character, and their decree is conclusive between the par ties and their privies | 1110 |
| The Mexican grant to Ramon Mesa held sufficiently proven, there being no opposing testimony | 1125 |
| Government may waive all regulations and irregularities, except as against vested rights of others | 272 |
| The government may proceed both civilly and criminally for cutting timber | 767 |
| In prosecutions for cutting timber, the official plats and books in the land office are admissible to show title | 767 |
| Parol evidence is inadmissible to show that the locus in quo was swamp land | 763 |
RAILROAD COMPANIES.
| A constitutional provision that charters may be altered or repealed at any time after their passage is to be read into all subsequent charters | 846 |
| A consolidation with a company chartered by another state will not affect the operation of such principle | 846 |
| The constitutional power to alter a charter warrants an alteration reducing trafficrates | 846 |
| A railroad corporation, when not restricted by its charter, may acquire lands ad libitum | 527 |
| Construction of the charter of the Camden. & Amboy Railroad Company in reference to the taking of land for a right of way. | 821 |
| Railroad aid bonds issued by the city of Jeffersonville, Ind., held invalid | 483 |
| The salaries of officers may be paid out of the construction fund as a part of the expenses of construction | 527 |
| Act Wis. March 11, 1874, regulating rail road traffic, held not repealed by Acts March 12, 1874 | 846 |
| The court in which a bill to foreclose a mortgage has been filed and a trustee appointed has jurisdiction to determine the conflicting rights arising out of its orders in the premises | 379 |
| A trustee appointed by a federal court in foreclosure proceedings has no right to deal with the court of another jurisdiction, and his acts in dealing with such court are void, and no justification to persons acting thereunder | 379 |
REAL PROPERTY.
| Question of title where property was sold on attachment and the judgment in the action was afterwards reversed | 362 |
| Proceedings against nonresidents in relation to land within the state given by special statute (Ohio), can only affect the land specifically named in the bill, and the decree cannot affect the property of defendants generally | 959 |
RECEIVERS.
| Appointment of receiver is discretionary with court | 49 |
| Receiver will be appointed at suit of creditors of corporation where its assignee's conduct is improper and prejudicial to their rights | 116 |
| A receiver appointed on a voluntary dis solution of a corporation (in Michigan) stands in the relation of the assignee of an insolvent debtor. | 1132 |
| The validity of a receiver's act in selling or exchanging property will not be questioned in a collateral suit in another court. | 1172 |
1227
RELEASE AND DISCHARGE.
| A release under seal of one of copartners is a sufficient release as to the rights of both | 153 |
REMOVAL OF CAUSES.
| Right to removal. | |
| Receivers of national banks have no right as such to have cases against them removed | 429 |
| Nonresident attachment creditors sub stituted under state law, for sheriff in replevin, may remove cause | 61 |
| One of several defendants cannot remove the suit unless the controversy is separable as to him. (Act July 27, 1866.) | 487 |
| All defendants who are not merely nominal parties must be citizens of another state or other states, and must unite in the petition to remove the cause. (Act March 2, 1867.) | 487 |
| A foreign corporation against which jurisdiction is obtained by attachment of its property may remove the case, although no suit could have been commenced in the federal court by original process against it. | 715 |
| The intention of the removal act of 1866 is to protect revenue officers and agents against suits in the state courts | 158 |
| Time of removal. | |
| After reversal in a state supreme court on appeal, with instructions to dismiss the suit, the party has no right of removal. | 805 |
| Proceedings to obtain. | |
| Action against commissioner to recover money illegally exacted as fees in a criminal proceeding cannot be removed by certiorari, under Act July 13, 1866, § 67 | 158 |
| The affidavit for removal must be taken and certified as required by the state law for affidavits in its courts | 1046 |
| An affidavit purporting to be taken and certified in conformity with Laws N. Y. 1869, c. 133. must have attached the certificate required by section 2 | 1046 |
| Effect of removal: Subsequent proceedings. | |
| On the removal of a cause, an injunctiongranted by the state court falls | 1056 |
| Plaintiff may proceed after removal with a reference made to take the deposition of a witness to be used in the suit | 386 |
| The pleadings in a case removed must conform to the federal rules and practice. 943 A complaint which does not so conform is demurrable | 943 |
| Where an action was commenced by summons and complaint, further pleading on the part of plaintiff after removal is not necessary | 386 |
REPLEVIN.
| A re-replevin will be quashed | 425 |
RIPARIAN RIGHTS.
| The right of a proprietor, bounded by a navigable river, extends to high-watermark; if the river be unnavigable, to then middle of the stream | 1076 |
| The right to apply for a ferry license belongs to the riparian proprietor, and cannot be taken without compensation | 1076 |
| The owner of land bounded by a navigable river may convey the soil, excepting the right of ferry | 1076 |
| The riparian right is protected as any other right | 1076 |
SALE.
| A sale of a thing not in existence is void. | 296 |
| A sale of flour branded “Gallego,” described as “Haxall,” held not void | 296 |
| A sale on condition that the title shall not pass until the purchase money be paid and the goods delivered is valid even as against subsequent bona fide purchasers. | 390 |
| As against subsequent bona fide purchasers, the seller has the burden of showing the sale to be conditional | 394 |
| The seller is estopped by his silent allowance of claim of title by another to assert that the sale was conditional | 394 |
| The possession of the fixtures and outfit of a tobacco manufactory does not create any presumption as to title | 390 |
| A sale cannot be avoided on the ground that the buyer knew himself to be insolvent, and had no reasonable expectation of being able to pay | 361 |
| The purchaser is not bound to answer the seller's inquiries respecting the state of the market | 771 |
| The condition “provided it is not sold” held to apply to the present status of the article | 771 |
| Description in sale note of flour as “Hax all” amounts to warranty | 296 |
| The right of stoppage in transit does not affect the right of property in the purchaser | 753 |
| Goods cannot be stopped by the seller after reaching a forwarding merchant in whose hands they are to await instructions of the buyer as to further transit | 361 |
| Goods are deliverable in a reasonable time if no time for delivery is fixed, and the contract is broken by refusal to deliver on demand when no objection is made to the time | 771 |
| The rule of damages for breach of the contract is the market price at the time that the goods were deliverable, though defendant's refusal was made with a view to profit | 771 |
| Where no price is fixed, the jury may give any rate appearing by the evidence | 771 |
SALVAGE.
| Right to salvage compensation. | |
| The rescue of a steamer grounded in the Ohio river, and in imminent peril of loss, is a salvage service | 555 |
| Compensation not awarded as for salvage service for towing into port foreign vessel which only needed a pilot, irrespective of agreement made | 804 |
| Pilots conducting into port vessels in distress or in apprehension thereof are entitled to salvage compensation therefor | 759 |
| Salvors entitled to compensation for services rendered within the ebb and flow of the tide, without regard to location | 932 |
| Giving the benefit of skill and experience and other incidental acts of relief may constitute a salvage service, though there is no actual labor or effort | 778 |
| Rescuing a stranded vessel from impending peril is a salvage service, though not indispensable nor attended with danger. | 778 |
| A vessel owned by a corporation engaged in the wrecking business may earn salvage. | 439 |
| A passenger who assisted in saving the property is entitled to a portion of the salvage | 838 |
| One purchasing vessel while wrecked cannot be considered a salvor | 191 |
| The freighter, being on board and consenting to deviation to save property, is entitled to salvage; otherwise not. | 838 |
| Contract to perform services. | |
| A contract to perform salvage service for a certain sum will bar a recovery of a greater amount, irrespective of the value of the labor performed | 1002 |
1228
| An agreement by underwriters engaging a steamer to relieve a vessel in distress for liberal compensation if successful is for salvage | 1072 |
| Employment of wrecking tackle, under an agreement to arbitrate the value of services rendered, is a salvage service, and not a hiring of the articleson a quantum meruit. | 778 |
| Owner of tug chartered by wrecking company to perform salvage service, but with out stating the services intended, is entitled to salvage compensation | 437 |
| Forfeiture or reduction of salvage. Salvage is forfeited by embezzlement, but only as to the shares of those taking part therein, and this irrespective of the location of the property at the time | 932 |
| The refusal of a tug to render towage services to a disabled ship on request held to reduce the grade of salvage allowance. | 818 |
| The fact that employes of a wrecking vessel, by their contract of employment, were not entitled to share in salvage compensation, will not reduce the amount of the award | 1072 |
| Amount. | |
| The only rule for determining the amount is that which is dictated by a sound discretion, under the particular circumstances of the case | 838 |
| Salvage should be so liberal as to afford a sufficient inducement to similar exertions to preserve the life and property of others. | 838 |
| Amount awarded is to be adjusted in conformity rather with the claims of the owner of property put at risk than with those of salvors for personal courage and heroism | 439 |
| The value saved is of little importance in awarding salvage when the danger is not immediate and other assistance would probably have been rendered | 1072 |
| The mere possibility that a deviation for the purpose of rendering a salvage service might have forfeited the insurance will not be considered in fixing the amount | 555 |
| A low rate (in this case 5 per cent.) awarded for mere towage service to disabled vessel in no immediate danger | 818 |
| Property is derelict when abandoned by owner without intention of returning and resuming possession | 41 |
| Vessel left by master and crew in sinking condition, who were picked up while yet in sight of the wreck, considered derelict. | 932 |
| Moiety allowed for bringing into port abandoned vessel, found in sinking condition | 88 |
| One-third allowed where a brig deserted by her crew was navigated to port with great difficulty by relief crew from another vessel | 835, 838 |
| Forty-two per cent, allowed for saving, in bad weather, at considerable risk, brig aground on Alligator reef, worth, with car go. about $18,500 | 234 |
| Twelve per cent, awarded on $118,202, the appraised value of cotton saved | 334 |
| 5,500 awarded to two steamers for towing vessel worth, with cargo, $160,000 | 1072 |
| $350 allowed for four days' laborious service in saving vessel worth $2,000 | 41 |
| Remedies for recovery. | |
| A libel filed before the salvor has completed his undertaking is premature | 1098 |
| The tender of adequate compensation for salvage service, without deposit in court before answer, is no bar to an action for such service | 778 |
| The merits of a libel in personam for salvage services are not affected by the fact that respondent has replevied the salved property from the salvor | 1002 |
| Owner's exclusive right of possession is not lost by temporarily leaving goods for the purpose of obtaining aid | 41 |
| The finder, who takes possession with intention of saving derelict goods, gains a right of possession maintainable against the true owner, and a lien for salvage. | 41 |
| All the parties should be named in the libel and brought before the court | 932 |
| Underwriters not having accepted an abandonment are not proper parties | 932 |
| The libel should state the subject-matter in articles, and the answer should meet each material allegation, with an admission and denial or a defense. No evidence is admissible except it be appropriate to an allegation | 932 |
| Court may order all charges against property to be produced before it for determination | 234 |
| Vessel ordered sold where master could raise no money, and repairs would exceed value after repairs | 234 |
| A written instrument of abandonment, signed by the officers of the vessel, is admissible to prove its perilous situation | 555 |
| Apportionment. | |
| Seaman put on board derelict by salvor vessel allowed a greater proportion of salvage | 88 |
| Owners of vessel usually entitled to one third of salvage award | 932 |
| Restoration of property. | |
| The vessel must be restored after the payment of salvage to those in possession when she was relieved | 885 |
| Costs. | |
| Spanish consul has no right to fees for attending sale where interests of Spanish subjects not involved | 234 |
SCIRE FACIAS.
| Judgment entered on penalty of bond of indemnity may be enforced by sei. fa | 263 |
| In Pennsylvania the death of either of the parties after a fi. fa. issued does not prevent the vend. ex. from issuing immediately upon the return of the fi. fa. A sei. fa. is not necessary | 693 |
SEAMEN.
| The contract of shipment. | |
| The hiring is presumed to be for the voyage out and return, in an absence of proof to the contrary | 330 |
| A contract to render services both as master and pilot upon inland waters is not void as against public policy or rules of navigation, and compensation may be recovered as for services in both capacities. | 484 |
| Seamen are entitled to be cured or cared for at expense of ship where injury is received or disease contracted while in its service | 183 |
| This rule applies to seamen employed on lakes and navigable rivers | 183 |
| To forfeit the claim, the disability or sickness of the seaman must be owing to vicious or unjustifiable conduct, not mere negligence | 183 |
| The obligation of the vessel terminates. in ordinary cases, when the shipping contract is dissolved | 183 |
| Remnants of a ship's stores are not perquisites of the steward | 503 |
| Conduct of master or mate in respect to seamen. | |
| A libel for assault and battery must be made out by clear, credible, and consistent proof | 258 |
| Libel for assault in inflicting punishment dismissed where master acted justifiably. | 232 |
1229
| The weapon used for punishing is entitled to consideration and weight | 258 |
| Wages—Eight to. | |
| A sailor who shipped at an intermediate port, where the voyage was subsequently broken up, and who rendered services in port only, held entitled to a lien | 722 |
| Seamen of captured vessel entitled to wages up to time of condemnation, and, in case of restoration, entitled to wages for the voyage | 900 |
| Owners decreed to pay the usual monthly wages, upon proof of the voyage and of the mariner's doing duty on board vessel captured | 1022 |
| A sailor made a second mate is entitled to wages, as such, from the time of his appointment, on the voyage being broken up. | 722 |
| A master may discharge or degrade a steward for embezzlement or habitual in temperance | 503 |
| A sale of a vessel on a decree for advances in an intermediate port is a prevention from continuing the voyage by “higher power,” within the Hamburgh law entitling seamen to a free passage home, or extrapay | 722 |
| Net earnings received by master appropriated to wages of himself and crew prorata | 191 |
| ____ Remedies for recovery. | |
| Seamen have a lien on freight for wages. | 1036 |
| Seamen have a lien for wages on the portion of the wreck saved by their exertions. | 1036,1122 |
| Seamen may have a claim against the wreck both for their wages and in the nature of salvage when saved by their exertions | 1036 |
| A mariner has a lien for wages on a sail vessel engaged in transportation on the tide waters of the Hudson river within the territory of the state | 817 |
| Contract by master for wages of himself and son held severable, and son to have a lien for his wages | 191 |
| A seaman hired by master with knowledge that the vessel is run on shares, and belief that it is not liable for his wages, has no lien | 336 |
| The taking by a mate of an agreement from the master to share the profits in place of interest on money loaned will not prevent a lien for wages | 722 |
| Negotiable note given for wages will not extinguish lien unless accompanied by additional security as compensation for renouncing lien | 305 |
| A tacit lien is lost or will be deemed waived by unreasonable delay in enforcing it | 815 |
| A lien may be enforced against the vessel in the hands of a bona fide purchaser if the seaman pursues his claim at the first opportunity after his debt has accrued. | 817 |
| A lien of a seaman for wages on a vessel on the Hudson river held not enforceable after a year from the sale of a vessel to a bona fide purchaser without notice | 815 |
| A seaman serving on a small vessel navigating the interior waters of the state should seek his remedy for wages in the local courts of the state if the owner is known to him and responsible | 815 |
| But, where the owner has refused payment, the burden is upon him to show that the seaman had an adequate remedy in the local courts | 817 |
| Cooks and stewards may sue as mariners. | 503 |
| Libel not entertained by foreign seamenfor wages against foreign vessel, where voyage not ended, in absence of special circumstances, against protest of consul | 13 |
| An assignment by libelant, for bona fide consideration, of his claim for wages, is a good defense | 331 |
| ____ Deductions: Extinguishment, etc. | |
| A forfeiture of wages by misconduct must be shown by clear proof | 258 |
| Seamen bound to remain with captured vessel until an adjudication | 900 |
| A temporary absence, without objection of master, while vessel is loading or unloading, is not a desertion | 897 |
| Three weeks' time consumed in discharging and taking in cargo at intermediate port does not show abandonment, justifying desertion | 330 |
| To justify desertion on the ground of unseaworthiness or unwholesome provisions, the proof must be clear | 330 |
| Claim of desertion not allowed in defense where no entry was made on log book, and wages were promised | 308. |
| Legal cause for desertion set up in defense may be shown without alleging it in the libel | 330 |
| All of seamen held liable to contribution for embezzlements, although there was no reason to impute to them any participation in the act | 1135. |
SEIZURE.
| The court has jurisdiction in revenue causes, although the property seized may never have come into possession of its officers | 811 |
SET-OFF AND COUNTERCLAIM.
| A bank holding an indorsed note may off set it against the maker's general deposit account | 574 |
SHERIFFS AND CONSTABLES.
| Entitled to poundage at time of making levy | 500 |
| A constable suspended from office before rule to show cause | 1075 |
SHIPPING.
| Public regulation: Title to vessel. | |
| The provisions concerning registry are constitutional (Act July 29, 1850) | 629 |
| The permanent register must issue from, and be recorded in, the office of the collector of the home port as defined by law. | 629 |
| Such office is the proper place for the register of a conveyance or hypothecation of a vessel | 629 |
| A purchaser without notice acquires a good title as against a prior unregistered mortgage | 801 |
| A joint interest in a vessel is a tenancy in common, carrying with it the privileges and limitations of that interest at common law. | 1177 |
| One owner is bound by a bona fide sale by a co-owner, though not evidenced by a bill of sale, where he has previously authorized it, or has accepted part of the purchase money | 1177 |
| A part owner, whose interest does not exceed a moiety, cannot demand the entire possession or sale of the vessel in invitum against his co-owner | 1177 |
| The sale of an entire vessel by one part owner in common does not authorize his co-owner to treat the sale as a tortious conversion | 1177 |
| Intemperance of the master is a sufficient ground to require the majority owners to give the dissenting owners a stipulation for the safe return of vessel from a proposed foreign voyage | 1199 |
1230
| Employment of vessel. | |
| The handling of goods shipped is a part of the stowage, for negligence in which the vessel is liable | 536 |
| A master who follows the advice of a duly-constituted survey in unloading cargo to repair a leak and in reloading cannot be held negligent. | 748 |
| The master. | |
| No formalities are necessary to the appointment of a master. Sufficiency of evidence to show appointment 918 The master has a lien on the freight for his wages and necessary disbursements for the use of the ship | 1036 |
| A usage for masters of whalers to wait for their lays until the owners sell the oil is unreasonable and void | 1010 |
| The burden of proving such an agreement, made for valuable consideration, is on the owners | 1010 |
| The master is not to suffer a diminution of his lay for oil sold on credit and never paid for, though due diligence was exercised by the owner | 1010 |
| The master's liability to the owners is not governed by the same rules which fix his liability to the shippers. He is liable only tor reasonable care and diligence | 484 |
| The stowing of cargo in steamboats on the western rivers is under the special charge of the mate, and the master is not liable to the owners for negligence therein. | 484 |
| Liens. | |
| See “Maritime Liens.” |
SLAVERY.
| An inhabitant of Washington county cannot purchase a slave in Alexandria county, and bring him into Washington county for sale | 120 |
| A person is not liable for taking up, as a 6060 runaway, a colored man, born a slave, where his freedom is not notorious | 107 |
| No presumption as to freedom of one born a slave arises from his being permitted to go at large without restraint | 107 |
| The loan of a Virginia slave to a son-in-law in Washington, D. C, held, not to give the right of freedom | 1075 |
| A mortgage of a £lave*for his full value within three years after bringing him into the District of Columbia will not entitle him to his freedom | 328 |
| Deed of manumission, acknowledged and recorded according to law, relates back to time of execution | 318 |
| No implied emancipation arises from a legacy of $25 to slaves ordered by the will to be sold | 107 |
| A will not admitted to probate is not admissible in favor of petitioners for freedom | 103 |
| Nor is it admissible as an instrument of manumission, under Act Md. c. 67, § 29 | 103 |
| The general issue on a petition for freedom is that which puts in issue the simple question whether free or not | 155 |
| Imported slave does not gain freedom by noncompliance of master with statute (Act Md. 1783. c. 23) | 155 |
| An affidavit is not necessary to continue negro petitions at the first term | 154 |
| Upon a petition for freedom, defendant not required to give security for wages of petitioner during the litigation | 154 |
| Recording of deed of trust of slaves. (ActVa. Dec. 1792) | 842 |
SPECIFIC PERFORMANCE.
| An agreement must be certain, fair, and just in all its parts, and made with full knowledge of all the facts, to be enforced in equity | 1058 |
| Specific performance will be decreed as against one who has received the consideration for a conveyance | 462 |
| The distinction between ordering a contract to be rescinded, and decreeing a specific performance, commented upon | 1058 |
STATES.
| A state legislature cannot by any law impair the obligation of a contract | 221 |
| The constitution of New Jersey confers general powers of legislation. | 221 |
| The rights of the crown devolved on the states by the Revolution, and were confirmed by the treaty of peace to them in their sovereign capacity. | 221 |
STATUTES.
| A mistake in descriptive words, if of the essence of the act, and permitting its refer ence to other than the subject intended, is fatal | 645 |
| A mistake apparent upon the face of the act, if it may be corrected by other language therein, is not fatal | 645 |
| Equivalent provisions cannot be substituted by the court for positive statutory provisions | 851 |
| A court will not substitute other words and dates to maintain an act making erroneous references to the things aliunde. | 645 |
| A statute will not be construed as retroactive unless the intention appears on its face, and not then where it will impairvested rights or violate a contract | 385 |
| Penal acts should be interpreted according to the manifest intent of the legislature | 811 |
TAXATION.
| A state cannot tax the funds in the hands of an assignee in bankruptcy | 881 |
| Special assessments may be imposed on districts for purposes of building levees. etc., the benefit being special | 910 |
| The tenant, until assignment of dower, is bound to pay the taxes | 719 |
| Tax sale of part of lot held void for failure to state its number in the advertisement of sale | 1137 |
| A purchaser at a sale for taxes acquires only the right of the person in whose name the property was assessed | 719 |
| The receipt of a dog tax after suit brought is a waiver of the penalty | 961 |
TELEGRAPH COMPANIES.
| Are entitled to a reasonable time for the delay on account of other business at the repeating office | 74 |
| Liable only for nominal damages where the despatch does not on its face indicate that the sender is liable to sustain loss if not promptly forwarded, and the company is not so informed. | 74 |
| Not guilty of negligence where message left at small station during reasonable absence of operator is forwarded on his return | 74 |
TENDER.
| A tender is dispensed with by a previous refusal to accept it | 699 |
| Tender made before suit brought, and not repeated in court, does not bar costs | 1002 |
TORTS.
| The rule which restricts damages to such as may reasonably be supposed to have been contemplated by the parties has no application to cases of tort | 1024 |
1231
| Either partner is liable in tort for damages caused by the negligence of the servants and agents of the partnership while conducting its business | 1024 |
TOWAGE.
| A tug is not liable as a common carrier upon a contract of towage | 967 |
| The promise of a tug, which had towed a schooner from imminent danger of fire, and, with the assent of her master, left her at an apparently safe berth, to return in case of danger, is without consideration, and the tug is not liable for a breach there of. | 967 |
| A contract to tow a vessel out to sea is maritime, though the service does not extend beyond the district | 318 |
| A steamboat, towing canal boats between New Brunswick and New York, held, negligent in venturing beyond the mouth of the Raritan river in a high wind | 662 |
TRADE-MARKS AND TRADE NAMES.
| Words, to be up held as a trademark, must either be merely arbitrary or indicate origin or ownership | 549 |
| One who designs and uses a trademark during nonuser of a previous equivalent trademark may acquire an exclusive right therein, and have enjoined the prior trade mark when, subsequently used to deceive the public | 549 |
| Infringement may consist in an imitation, though not amounting to forgery, yet so close as to deceive an unwary purchaser. | 546 |
| The right of exclusively using the word “Durham” in labels on smoking tobacco belongs to manufacturers in the town of Durham, N. 0 | 549 |
| The right of exclusively using the word “Durham” in connection with the picture of a Durham bull, on smoking tobacco, held to belong to W. T. Blackwell & Co | 549 |
| A trademark consisting of the words “Genuine Durham Smoking Tobacco,” with the side figure of a bull as a symbol, is infringed by the use of the words “The Durham Smoking Tobacco,” in connection with the head of a bull | 546 |
| The owner of the trade-mark “Best Spanish Flavored Durham” cannot enjoin the use of “Genuine Durham Smoking Tobacco” where he used the word “Durham” as a mere unmeaning incident | 546 |
| The right to use a trade-mark held for feited by nonuser for eight years | 549 |
| On an application for a preliminary in junction to enjoin the use of a trade-mark, the court cannot pass upon the merits of the defense | 546 |
TRESPASS.
| All who instigate, promote, or co-operate in the commission of a trespass, or aid, abet, or encourage its commission, are guilty. | 286 |
| But the mere presence of persons will not make them trespassers | 286 |
| Where the defendants are sued jointly, the jury must find a single verdict, and estimate the damages according to the most culpable of the joint trespassers | 286 |
| Circumstances stated which will authorize the jury to give exemplary damages. | 286 |
TRIAL.
| No civil cause is to be tried, except by consent, unless it has stood one term at issue. | 1103 |
| Admission by opposite party to prevent continuance that absent witness would testify as stated in affidavit will not estop him to meet such testimony at the trial | 299 |
| Defendant, by reading debit side of account filed by plaintiff makes the whole account evidence | 102 |
| Where the evidence for a party having the burden of proof is not such as would warrant a verdict in his favor, the judge need not submit the case to the jury | 1038 |
| Abstract, irrelevant, vague, or general instructions need not be given | 968 |
| An instruction stating a fact contrary to a previous correct instruction held to be misleading | 604 |
| The judge may express his opinion to the jury on a matter of fact in a clear case regarding the infringement of a patent, although the question is for their decision. | 819 |
TROVER AND CONVERSION.
| For the conversion of a whale in the Okhotsk sea, the measure of damages is the value of the oil and bone at the home port, less the expense of cutting and boiling, freight and insurance, with interest | 1002 |
TRUST.
| Verbal promise to dying person by heirs to convey his property in a certain way, though fraudulent, does not raise a trust adhering to the land | 38 |
| A bequest of a fund to be “applied to the support of missionaries in India,” under the direction of a certain board of missions, is void for uncertainty | 780 |
| A trust cannot be executed by one of two joint trustees either in the lifetime of the other or after his death, unless there is a provision as to survival in the deed of trust. | 878 |
| Third persons cannot object to the unauthorized investment of trust funds | 559 |
| All presumptions are against a trustee who does not keep accurate and distinct accounts | 1003 |
| A trustee who previous to the Civil War appropriated the trust estate to his own use is liable for interest during the war. | 1003 |
USURY.
| Charging different rates of discount for different localities, if not intended as a cloak for usury, held not usurious | 1156 |
| The question whether such transaction is bona fide is one for the jury | 1156 |
| Act Ill. Feb. 12, 1857, held inapplicable to a contract where no rate of interest was fixed by agreement | 1155 |
| A mortgagee will not be required to account that he may be charged with usury. | 1056 |
WAR.
| Confiscation under Act Mass April 3,1779, divests only the estate of the absentee, and not the estate of a remainder-man. | 905 |
| Orders of the war department of August 8, 1862, relative to the arrest of disloyal persons, etc., construed | 159 |
WAREHOUSEMEN.
| A warehouse receipt to the order of a third person may be impeached if no advance has been made or responsibility in curred by him on account thereof | 12 |
WASTE.
| Equity will enjoin a tenant in common from stripping the land of its timber pending a bill in equity | 1158 |
1232
| A vendee or mortgagee in possession, with the great bulk of the purchase money due and unpaid, will not be permitted to cut and take away the timber to the prejudice of the security | 1158 |
WILLS.
| Testator's intention, when clearly expressed, will control technical words and set phrases | 559 |
| Rev. St. Mass. 1835, c. 62, § 21. providing for the case of a descendant omitted from the provisions of a will, is inapplicable to wills made in execution of a power of appointment | 559 |
| A devise of “all the residue of my estate, of every name and kind,” held sufficient to pass real estate | 559 |
| Devise to executor for use of wife for life, remainder to persons named, gives vested interest to remainder-man, which will pass to his assignee | 57 |
WITNESS.
| The rules as to the incompetency of witnesses for interest do not apply in salvage cases except as to facts occurring in port after the property is brought in | 932 |
| Consignee who has delivered goods to the owner without the payment of freight is competent in a suit by the master to re cover freight | 902 |
| The rule that a party to an instrument shall not be permitted to discredit it by his testimony is applicable only to mercantile negotiable paper | 1154 |
| Where, in a case of collision between vehicles, the question of negligence is not settled, plaintiff's driver is incompetent with out a release | 153 |
| A witness will not be compelled to disclose names of persons whom opposite party may desire to call to disprove his adversary's case | 1194 |
| Matters relating to a conveyance to an attorney by his client, and a reconveyance to the client's wife, are not within the attorney's privilege | 132 |
WORDS AND PHRASES.
| “Coming to market” | 902 |
| “provision or article of food” | 962 |
WRITS AND NOTICE OE SUITS.
| The privilege of a person while attending court as a party or witness extends only to exemptions from arrest | 704 |
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