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[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
| ABATEMENT AND REVIVAL. | ||
| Page | ||
| Whether the pendency of a suit in the state court, between the same parties, and upon the same subject-matter, may be pleaded in abatement in a federal court in the same state, discussed | 290 | |
| A plea in abatement of a cause in the federal court, that another suit is pending in a state court, is not good where the parties to the two suits are not the same | 290,308 | |
| Discontinuance for want of appearance or proceeding for two terms after the suggestion of death (Act Md. 1785, c. 80) held, cured by subsequent appearance, trial, and verdict | 62 | |
| ACTION. | ||
| In the case of a corporation aggregate, no waiver of an objection to jurisdiction can be produced, by the fact that the corporation appears and pleads by attorney | 967 | |
| Actions pending in a federal court of like nature, or relative to the same question, may be consolidated to avoid unnecessary costs, or to prevent delay | 735 | |
| A bill of review may be conjoined with a bill for relief against a fraudulent decree | 1178 | |
| A suit is not terminated by the rendition of judgment, nor until satisfaction thereof. | 1163 | |
| ACTION ON THE CASE. | ||
| The reversioner cannot maintain an action upon the case against a stranger, who, by persuasion or threats, induces the tenant to attorn to a third person, it not being maliciously done. | 364 | |
| ADMIRALTY. | ||
| Jurisdiction—In general. | ||
| Jurisdiction in admiralty is founded in original cause and place of transaction. | 71 | |
| ———Persons and property. | ||
| The district court in admiralty has jurisdiction of an action to recover property wrongfully seized by customs officers, and to award damages, or to compel the seizor to proceed to adjudication | 746 | |
| Maritime courts have jurisdiction over suits either in rem or in personam between foreigners | 555 | |
| But jurisdiction will be declined unless necessary to prevent failure of justice | 555 | |
| Our courts will take cognizance of claims of foreign seamen, where voyage of foreign vessel is broken up, and will administer that justice to which they would be entitled at home 692 | ||
| ———Waters and places. | ||
| Admiralty has jurisdiction of a suit for damages caused by collision between vessels at a pier of the city of New York | 1124 | |
| Admiralty can entertain jurisdiction over actions for assault in personam only | 905 | |
| Admiralty jurisdiction extends over tidal water (Savannah river), although within the body of a county. | 654 | |
| Admiralty has jurisdiction of a libel for an injury to a tow from negligent navigation of the tug, in the performance of a contract of towage between Albany and New York | 238 | |
| ———Affreightments; charter parties, etc. | ||
| Where the principal contract is maritime, admiralty jurisdiction is not defeated by the fact that some incidental services were performed on land. | 236 | |
| ———Repairs and supplies to vessel. | ||
| Admiralty has jurisdiction of a claim by the owner of goods sold by the master in a foreign port to obtain means of repairing damages to the vessel done on the high seas. | 612 | |
| Procedure. | ||
| Courts of admiralty, so far as their powers extend, act as courts of equity | 407 | |
| Admiralty causes are to be determined upon equitable principles, and according to the rules of natural justice | 359 | |
| ADVERSE POSSESSION. | ||
| A deed of land held adversely to the grantor, under color of title, given when he is out of possession, is void, even though the adverse holding be founded on a deed to which such grantor's name was forged. | 660 | |
| Plea of prescription is unavailing where there had been a mixed possession of the property in controversy, and a continual contest over it | 460 | |
| AFFIDAVIT. | ||
| Affidavits not entitled in the cause are not admissible | 596 | |
| AFFREIGHTMENT. | ||
| See, also, “Admiralty;” “Carriers;” “Charter Parties;” “Shipping.” | ||
| The owners and officers who treat a receipt, asserted to have been given by the mate, as genuine and authentic, cannot deny its execution, and validity | 371 | |
| All parts of a receipt introduced as evidence of a contract of affreightment must be considered in its interpretation | 897 | |
| An agreement repugnant to the terms of a charter party, of which a shipper has no notice, cannot affect his interests injuriously | 323 | |
| The vessel is liable for injuries to cotton caused by bad stowage and sea water, owing to inattention to the pumps | 323 | |
| Consignees, who have made advances and are recognized by the master, can maintain a suit for damages to the goods, although no bills of lading were executed. | 323 | |
| 1208 | ||
| An independent suit for damages will prevent the owner from setting up such damages by way of abatement in a suit for freight | 323 | |
| The lien of a vessel on the cargo for freight is lost by an unconditional delivery. | 143 | |
| ALIENS. | ||
| The clerk of the court may receive the preliminary application and oath of an alien to be naturalized. Act May 26, 1824 | 924 | |
| AMNESTY. | ||
| The amnesty proclamation of July 4, 1868, did not have the effect to restore property condemned in confiscation proceedings | 2 | |
| APPEAL AND ERROR. | ||
| A writ of error does not lie on an allowance against an executor or administrator | 1186 | |
| Where a new jurisdiction, unknown to the common law, is created, a writ of error will not, and a certiorari will, lie to it | 1186 | |
| Confiscation causes are not admiralty, but common-law, cases, and are to be reviewed lay writs of error | 435 | |
| Both appeals and writs of error operate as a supersedeas without express order, if taken within the proper time and with an offer of the requisite security. | 891 | |
| Further action of a justice of the supreme court of the United States is superseded by the application for and allowance of a writ of error | 891 | |
| A party not appealing from the decision of the district court cannot be heard in opposition thereto. | 880 | |
| Material evidence, the production of which in the court below is not excused, is subject to suspicion in the circuit court. | 888 | |
| An exception cannot be taken to a verdict for the first time on appeal | 1184 | |
| The decision of the court on a motion for a continuance will not be disturbed save in a flagrant case | 1184 | |
| The appointment of an elisor, to summon a jury, will be presumed to be correct, and to have been done for reasons satisfactory to the court. | 1184 | |
| The incompetency of a witness as to the loss of goods shipped is immaterial, where the loss is otherwise sufficiently proved. | 371 | |
| The condition of an appeal bond is broken unless the judgment be reversed in toto | 918 | |
| On writ of error from the supreme court, a justice refused to order an increase in the bond given, though, by reason of the supersedeas, the fees and emoluments coming to plaintiff from defendant would greatly exceed the amount of the bond given | 891 | |
| APPEARANCE. | ||
| Informality in the service of notice of motion for an injunction is cured by defendant's appearance | 11 | |
| ARMY AND NAVY. | ||
| Acts of congress relating to the enlistment of marines, listed | 326 | |
| Minors may be enlisted in the marine corps, as musicians, with the assent of their fathers; and may be bound as apprentices to the drum-major, in behalf of the government | 325 | |
| A minor, 17 years of age, who has enlisted in the army without his parents' consent, is entitled to discharge on habeas corpus | 731 | |
| Quaere, whether a person enlisting as a minor is not entitled to his discharge at the age of 21, regardless of the term of his enlistment | 325 | |
| A navy agent disbursing navy and privateer pensions is not allowed extra pay or emolument therefor | 441 | |
| ARREST. | ||
| A warrant of commitment must state probable cause, supported by oath or affirmation | 723 | |
| ASSIGNMENT. | ||
| The execution of an assignment by a corporation and by S., president, held to be a good execution by S. for his individual interest | 1168 | |
| The release by a devisee and heir of his equitable interest in a bond taken by an executor from his coexecutor, conditioned to pay a certain sum for the benefit of the heirs, is admissible, in evidence on sci. fa. to revive a judgment on such bond, to show payment in part | 1164 | |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | ||
| An assignment for the benefit of creditors is good against a subsequent attachment, as to creditors, who, though not parties, assented thereto before the attachment | 412 | |
| ASSUMPSIT. | ||
| Assumpsit will lie on the indorsement of a writing obligatory, the undertaking of the defendant not being under seal | 1173 | |
| One who has fully performed a special agreement may recover upon a general count | 200 | |
| A promissory note is good evidence, under the money counts, in a suit by an indorsee as well as by the payee. | 414 | |
| A credit of six months in a note expired before suit will not defeat a recovery on the general counts. | 414 | |
| Where there is a written contract, no recovery can be had for extra work or materials unless authorized or directed by the other party. | 1129 | |
| ATTACHMENT. | ||
| Antedating a note substituted in place of an unexpired credit held a fraud upon grantees, and the note no ground of attachment against the land conveyed | 117 | |
| An attachment, issued upon a return of non est, before the appearance day, will be quashed. | 1131 | |
| Money awarded under a rule of court cannot be attached | 112 | |
| Questions as to priority of attachment and unrecorded conveyances. | 117 | |
| ATTORNEY AND CLIENT. | ||
| The circuit court of the District of Columbia may enquire in a summary manner into alleged malpractices, and suspend or expel an attorney | 791 | |
| Attorneys, in the exercise of their proper functions as such, are not liable for their acts when performed in good faith to protect clients' interest | 1158 | |
| Attorney held entitled to a lien upon notes of the client in his hands for counsel and solicitor's fees in suit not relating thereto | 339 | |
| 1209 | ||
| AVERAGE. | ||
| Damage to cargo by water used in extinguishing fire does not constitute a case for general average | 559 | |
| In case of loss and expense by necessary deviation, both vessel and cargo must contribute in general average. | 1155 | |
| BAIL. | ||
| Marshal may justify appearance-bail at second term after exception taken at the rules | 61 | |
| The court will not receive, upon motion to exonerate bail, evidence of fraud in contracting the debt | 788 | |
| The discharge of the principal under the insolvent law discharges the bail | 788, 954 | |
| A note given by the bail, on being taken on execution, where the principal was discharged in insolvency before the bail was fixed, will be ordered to be canceled | 886 | |
| BAILMENT. | ||
| The delivery of the manufactured cloth to the person furnishing the yarn passes title, though the manufacturer furnished the filling, and was to have a share in the product for his labor | 604 | |
| BANKRUPTCY. | ||
| Operation and effect of bankrupt laws, and of proceedings thereunder. | ||
| The provisions of the bankrupt act which apply to persons other than merchants and traders are not unconstitutional. | 1060 | |
| The jurisdiction acquired by a state court in proceedings for partition of an estate in which the bankrupt is interested will not be interfered with by the bankruptcy court | 1035 | |
| The distribution of the assets of a bankrupt cannot be interfered with by process of a state court | 112 | |
| Mortgagees, after an adjudication in bankruptcy, should enforce their claims in the bankruptcy court | 145 | |
| The bankruptcy court may permit mortgagees to proceed in the state courts | 145 | |
| A levy on mortgaged property in the hands of the bankrupt, under a decree in foreclosure, after assignee appointed in voluntary proceedings, held a contempt of court | 949 | |
| Jurisdiction of courts. | ||
| The debtor must reside within the jurisdiction of the United States when the petition is filed | 863 | |
| On petition against two partners, one of whom is a citizen of another country, the other may be adjudged a bankrupt | 863 | |
| The district court of the district in which the domicile and only place of business of the firm is located has jurisdiction of a petition in involuntary bankruptcy | 1128 | |
| Provision of general order No. 16 held inapplicable in the case of proceedings in different jurisdictions, and the court first acquiring jurisdiction by the filing of petition held to have the right to proceed to final determination. | 336 | |
| Register—Powers and duties. | ||
| A register is not bound to countersign a check unless the fee is first tendered to him. | 44 | |
| In the event of a controversy, the question raised before the register must be certified to the judge for his opinion. | 23 | |
| Questions not properly arising in the course of proceedings before the register cannot be certified to the judge. | 37 | |
| Commencement of proceedings—Voluntary bankruptcy. | ||
| The bankrupt's property is brought under the protection and within the exclusive jurisdiction of the court by the filing of the petition. | 849 | |
| The existence of a fiduciary debt does not preclude the parties from taking the benefit of the bankrupt act, as to all other debts | 333 | |
| ———Involuntary bankruptcy. | ||
| Railroad corporations are comprehended within the words “moneyed, business, or commercial corpora io s'. | 1060 | |
| Creditors whose debts do not exceed $250 are not counted in computing the number who shall join in the petition, but in computing the amount all claims are included | 205 | |
| An indorsed promissory note is not a secured claim (Rev. St. § 5075), and should be counted in ascertaining provable debts | 205 | |
| A creditor seizing under attachment within four months prior to commencement of proceedings has not a secured claim | 205 | |
| The court may inquire into the value of securities held by creditors, to determine whether the debts due petitioners are of the amount required, and that a secured creditor has a provable debt | 1060 | |
| In determining whether the petitioners represent one-third of all the debts provable, the court may examine a petition for an injunction filed with the petition in bankruptcy. | 1060 | |
| Fixing time for proof that required number of creditors have joined | 658 | |
| Petitioning creditors allowed 10 days further time, in which to obtain the consent of others to join in the petition. | 1060 | |
| Where a substantial averment is lacking to give jurisdiction, the proceedings cannot be considered as commenced within the exception of the amendatory act of 1874 | 690 | |
| The authority under which the agent of petitioners acts need not be set forth | 1060 | |
| The signing and verification for all the signers may be done by one agent | 1060 | |
| Letters of attorney to represent creditors may be acknowledged before a notary public, notwithstanding General Order No.34 | 919 | |
| Service is made upon a corporation by delivering a copy to its principal officers at its principal place of business | 1060 | |
| ———Acts of bankruptcy. | ||
| A general assignment for benefit of all creditors under the state laws, though free from fraud, is an act of bankruptcy | 54, 855 | |
| Fraud in fact is not essential to constitute suspension of payment of commercial paper an act of bankruptcy | 855 | |
| A default in payment of commercial paper continued more than seven months before proceedings commenced is no ground for a petition | 78 | |
| An examination in supplementary proceedings under a state law is “legal process,” within section 39 | 197 | |
| A transfer to a brother, with knowledge of insolvency, though to pay a just debt, held an act of bankruptcy. | 198 | |
| ———Intervention of other creditors. | ||
| A failure to proceed with proceedings in invitum confers right upon other creditors to intervene and prosecute the proceedings, notwithstanding pendency of petition for leave to discontinue. | 527,1044 | |
| An attachment creditor in the state court may intervene. | 863 | |
| ———Discontinuance | ||
| The proceedings held to be at an end where on the adjourned day the petitioning creditor did not “appear and proceed,” and no other creditor appeared to be substituted | 1127 | |
| 1210 | ||
| The petitioning creditor may discontinue proceedings, and have his petition dismissed before adjudication, without giving notice to other creditors | 1127 | |
| The other creditors must file a new petition, or appear on the adjourned day and petition to be substituted under section 42, Act 1867 | 1127 | |
| Proceedings in invitum can be discontinued only by an order of court on special application | 527 | |
| The want of an adjournment to a day certain, after issue joined as to acts of bankruptcy, does not terminate the proceedings. | 527 | |
| Commencement of proceedings—Interlocutory orders. | ||
| Injunction granted, pending petition restraining debtors from collecting and disposing of their assets, but not extended to persons not served with notice of application. | 1045 | |
| Injunction granted to restrain bankrupt and other parties from disposing of the bankrupt's property until the further order of the court. | 1141 | |
| Schedule. | ||
| Debtor not compelled to file a full list of creditors, when sworn statements of the petitioning creditors show that the requisite amount and number have not petitioned | 1060 | |
| An interest in the net profits of a business as additional compensation for services need not be scheduled | 332 | |
| Adjudication. | ||
| The creditor will be compelled to make out his case as in any other issue | 197 | |
| An omission to file proof of an act of bankruptcy is substantial, and cannot be remedied | 336 | |
| Outside creditors have no right to resist the adjudication, or to ask that it be annulled | 879 | |
| An application to set aside an adjudication, on the ground of a prior agreement of compromise with the petitioning creditor, will be denied, where it is doubtful whether such agreement was not made for benefit of all the creditors. | 879 | |
| Notice must be given the bankrupt of an application to annul the adjudication | 879 | |
| Assignee—Appointment and removal. | ||
| An act of an assignee appointed under a general order is binding, so far as his competency is concerned, where, as to such act, he is treated by the court as assignee | 499 | |
| The appointment of assignees under general orders, and the validity of their acts, discussed | 499 | |
| ———Powers and duties. | ||
| The assignee of a corporation does not represent its creditors in respect to a claim against an officer under a statute making him personally liable for the corporate debt. | 163 | |
| The assignee, without authority of court, cannot employ an attorney to conduct a suit, for a contingent compensation. | 143 | |
| Notice to creditors. | ||
| Failure to give proper notice to creditors may prevent bankrupt's discharge | 885 | |
| Property of bankrupt—What constitutes. | ||
| The right of bankrupt tenants to the removal of machinery from the leased building passes to the bankruptcy court. | 43 | |
| ———Wife's claim. | ||
| Pending change of form of investment of wife's separate estate, the husband became bankrupt, with the title of the newly-acquired property in his name. Held, that Page the bankruptcy court would decree a settlement upon the wife of such property | 1147 | |
| The wife may submit voluntarily to the adjudication by the bankruptcy court of her specific claim to a settlement out of the bankrupt's estate, and the assignee and creditors who had opportunity to present evidence and arguments before the register, and to file exceptions, must be held to have had their day in court. | 1147 | |
| The court will allow the wife a reasonable support, in preference to the husband's creditors, out of rents and profits of realty conveyed by her husband to her through a third person, without consideration, where they are her only means of support | 21 | |
| ———Possession and custody. | ||
| The marshal, under a warrant issued under section 40, Act March, 1867, may take possession of the bankrupt's property, wherever found. If indemnified, he has no option | 115 | |
| ———Exemptions. | ||
| Exemption of a homestead not allowed out of land mortgaged to secure the payment of borrowed money, prior to the time of claiming such homestead | 334 | |
| ———Liens. | ||
| A lien creditor cannot be required to surrender until his liability or debt is discharged. | 979 | |
| Landlord has no lien or preference in Pennsylvania unless there is a seizure for rent. | 894 | |
| The fact that an attorney, in drawing the bankrupt's inventory, includes certain notes in his possession, does not estop him from claiming a lien thereon for legal services | 339 | |
| A lien creditor, after sale of the property in bankruptcy, subject to the lien, may have relief in equity in the district court to enforce the lien against the purchaser | 573 | |
| Proceedings in bankruptcy do not keep alive a lien created by a state statute, the continuance of which is made dependent upon the commencement of a suit within a prescribed period | 482 | |
| The assignee held entitled to reasonable expenses in securing property severed from a freehold, covered by the lien of a mortgage | 467 | |
| A lien of a state on realty for taxes has priority over all other claims. | 17 | |
| ———Sale. | ||
| The register may designate the newspapers in which notice of a sale by the assignee shall be published | 731 | |
| Disputed interests of the bankrupt cannot be sold except by order of court, after personal notice to adverse claimants | 499 | |
| The court only has the power to order the sale, and to fix the period of notice | 499 | |
| The sale must always be public, and after public notice | 499 | |
| A mere indorsement of the report of sale “Approved,” signed by the judge, held not an order of confirmation. | 499 | |
| An order for the sale of disputed interests of the bankrupt, made by the register, being void, a sale thereunder cannot be affirmed or validated. | 499 | |
| A sale under a void order may be declared void by the bankruptcy court on petition as against subsequent purchasers. | 499 | |
| The bankruptcy court will not interfere to vindicate the title of a purchaser under an assignee's sale | 124 | |
| Proof of debts. | ||
| A note, indorsed by the bankrupt, given for work done upon a patent in which the bankrupt was to have an interest, held a valid claim | 466 | |
| Bankrupt surrendering leased premises held liable for the rent until they were relet by the landlord. | 466 | |
| 1211 | ||
| Where a member of a bankrupt firm is also a member of another firm, his partner in the latter firm may prove his debt | 560 | |
| Creditors holding individual obligations of members of firm, given for consideration moving to the firm, are entitled to a credit out of the individual estates | 584 | |
| The claim of a partnership against one of its bankrupt members, who acted as treasurer under the articles of copartnership, may be proved against his separate estate. | 365 | |
| A debt, on which a judgment has been entered against the bankrupt after the commencement of the proceedings, may be proved | 328 | |
| An indorser paying an indorsee of a note pending bankruptcy proceedings against the maker becomes surrogated to the indorsee's rights | 205 | |
| Mortgagee, after finding against him in a case of constructive fraud, who, before judgment, surrenders the property, may prove his debt | 814 | |
| A foreign creditor must give up the proceeds of property collected by execution abroad' before proving the balance of his claims in bankruptcy | 609 | |
| The amount proved should not include interest beyond the day of adjudication | 609 | |
| A creditor may be required to prove his debt, reciting the security and setting forth the consideration, and the assignee may contest the claim for any usurious surplus | 209 | |
| A deposition by the debtor that he believes the account against him to be correct held admissible | 1086 | |
| Proof of a judgment subsequently set aside by the court in which it was entered will be expunged | 466 | |
| An existing lien upon specific property may be preserved by proving the claim in bankruptcy, and having the lien allowed | 573 | |
| A lien creditor must disclose the particular character of his lien. | 111 | |
| Proof of a judgment debt waives the lien | 124 | |
| A creditor proving his whole debt as unsecured, without disclosing the security, waives his lien. | 17 | |
| A creditor, ignorant of his legal rights, will not be held, in the absence of proof of fraud, to intend what his innocent acts imply, particularly if acting in a fiduciary capacity | 17 | |
| Payment of debts: Priority: Dividends. | ||
| A secured creditor waives his security by joining in a creditors' petition, without reference thereto | 205 | |
| Where there are both joint and separate debts, proved on a separate petition, the separate creditors must first be paid in full | 951 | |
| A claim for a balance of laborer's wages in the hands of one who advanced a part thereof, taking an assignment as security, held entitled to a preference | 327 | |
| An agreement to pay in crops for rent of land and property purchased of the landlord will not give him a lien as against general creditors of the tenant | 198 | |
| Creditors of a corporation have no lien on a distributive share in the assets of one who, under a state statute, is made personally liable for the corporate debts | 163 | |
| Equitable debts are provable on the same footing as legal debts | 560 | |
| Examination of bankrupt, etc. | ||
| General powers of the register in the matter of the examination of the bankrupt, etc | 23 | |
| A register has power to fill up a blank order for the examination of the bankrupt, issue the summons, and appoint the day and place | 23 | |
| Bankrupt cannot be cross-examined on matters opened by the examination, but may, on the advice of counsel, explain and correct his statement | 1 | |
| The bankrupt's examination, taken before a master in chancery, may be admitted in evidence, so far as it elucidates his affairs | 1 | |
| Costs-: Fees: Disbursements. | ||
| A register has a lien on the fund in court which has been awarded to a party. | 44 | |
| Rent should be paid for the time premises are occupied by the assignee or trustee after adjudication, as part of the administration of the estate | 327, 894 | |
| Bankrupt court may in a summary manner adjust the fees of an attorney employed by the assignee. | 143 | |
| Assignee, who failed to apply to enjoin mortgage foreclosure proceedings, until time of sale, held chargeable personally with costs on dismissal of his petition for leave to sell | 144 | |
| Discharge—Proceedings to obtain. | ||
| The application for a discharge is too late when made after the assignee has been discharged as such. | 136 | |
| An involuntary bankrupt is not entitled to a discharge unless his assets equal 50 per cent, of the proved debts, or he files the consent of a majority of creditors in number and value | 684 | |
| A consent to a discharge, acted upon and filed, cannot be withdrawn, though the right be claimed on the day fixed for the hearing | 59 | |
| The trial of all questions relating to the discharge will be postponed until the hearing of the petition. | 152 | |
| Manner of procuring examination of bankrupt before granting the discharge, and its conduct generally | 25 | |
| ———Opposition: Acts barring. | ||
| A person will not be heard in opposition until he has proved his claim as a creditor | 152, 729 | |
| Time and manner of filing specifications of objections | 929 | |
| Allegations in opposition to discharge are not sufficient when they simply follow the words of the statute. They must be as exact as the specifications in an indictment | 918 | |
| No intendment will be made in favor of the pleader. The construction is more strict than in common-law proceedings. | 918 | |
| When the grounds of opposition are insufficient in law to prevent the discharge, the bankrupt may demur to the specification thereof. | 729 | |
| An allegation that the bankrupt in May, 1865, removed a part of his property from the district, with intent, etc., is too vague and general | 729 | |
| Removal. of property from the district, with intent to defraud creditors, either before or since the passage of the act, is good ground of opposition by one who could have been defrauded by it | 729 | |
| Erroneous allegations in bankrupt's petition are not a sufficient objection to his discharge, unless sworn to with knowledge of its falsity | 729 | |
| Payments by a merchant to creditors, to procure extensions, with the belief that he could keep afloat, held not in fraud of the act (§29) | 59 | |
| Payments in full of certain debts, a short time before becoming bankrupt, appearing solely from the bankrupt's examination, will not prevent a discharge, where there is no evidence to show that they are fraudulent. | 725 | |
| 1212 | ||
| The bankrupt's mere denial of intention of filing a petition, at the time of making a general assignment, held not sufficient to repel such presumption arising from the fact of a petition being filed four days later. | 201 | |
| The accidental omission of entries in a trader's book is not conclusive of his not having kept proper books of account | 725 | |
| Check held admissible, together with the stump from which it was detached, to show how the check book was kept | 200 | |
| Discharge—Scope and effect: Vacating. | ||
| A fiduciary creditor is not affected by the discharge, where he did not elect to come in and prove his debt. | 333 | |
| The time in which to proceed to annul a discharge for fraud runs from the date of the discharge, and not from the discovery of the fraud. Rev. St. § 5120 | 338 | |
| A payment by a surety of the bankrupt, without his knowledge, to an opposing creditor, held would not vitiate the discharge | 113 | |
| Motion to vacate discharge as inadvertently granted will be denied after time expired for review by circuit court, and bankrupt has procured loans on the faith thereof | 540 | |
| Any act which, if duly proved, would have prevented a discharge, will be ground for setting it aside, under section 34 | 113 | |
| Prohibited or fraudulent transfers. | ||
| The fact that valid considerations entered into a conveyance will not prevent its being fraudulent, if one of the motives was to hinder and defeat creditors | 829 | |
| Notice of facts sufficient to put mortgagees on inquiry will charge them with the knowledge which an investigation would have developed | 788 | |
| A creditor receiving payment, with “cause to believe” his debtor insolvent, is presumed to know that such debtor thereby intended a fraud upon the act | 228 | |
| The burden is on the purchaser to show that he took proper steps to find out the seller's pecuniary condition | 272 | |
| A mortgage given by an insolvent in payment of a pre-existing debt, and to secure a loan, to be used in giving an unlawful preference, all the parties having knowledge, is void | 575 | |
| The existence of the creditor's claim as a liability, and not as a debt, does not prevent a transfer being fraudulent as to him. | 788 | |
| The mortgagee of a fraudulent transferee, in possession without notice, will be protected to the extent of his mortgage | 272 | |
| Act June 22, 1874, amending section 35 of the act of 1867, is not retroactive. | 228 | |
| Quaere, whether such amendment substituting “knowing,” for “reasonable cause to believe,” has changed the legal effect of section 35 | 228 | |
| The distinction pointed between preferences obtained by inaction of the debtor, and by positive act | 183 | |
| Preference obtained by inaction of the debtor in permitting a judgment and levy of execution, where the debtor contributed nothing to the success or completion of the creditor's act, held not fraudulent. | 183 | |
| A transfer to a creditor of book accounts, within two months of commencement of proceedings, held not presumptively fraudulent. | 205 | |
| A sale of the furniture, fixtures, and lease of a business office, to one with knowledge of insolvency, held fraudulent | 272 | |
| A conveyance of the borrower's whole assets, to secure a temporary loan at exorbitant interest, held fraudulent. | 272 | |
| An assignment for the benefit of such creditors only as should sign a compromise agreement is void as against the assignee | 317 | |
| A trust deed of lands in another state, of which the bankrupt remained in possession, will not be set aside unless facts are shown rendering it fraudulent. | 317 | |
| The purchase by a partner of his bankrupt copartner's interest in the business held fraudulent | 820 | |
| A transfer of partnership effects by one partner to his copartner, who within a few days filed his petition in bankruptcy, held void as a fraud on partnership creditors | 951 | |
| A firm, for months unable to meet its liabilities as they matured, which gives a warrant of attorney to a creditor, must be held to have intended a preference | 1192 | |
| A warrant of attorney procured under threat of legal process and arrest by a creditor suspecting the insolvency of the debtor held a preference | 1192 | |
| A mortgage given to secure a loan of actual value, in good faith, within the periods specified in section 35 of the act of 1867, and after the amendment of June 22, 1874, § 11, is not invalid, unless the mortgagee knew that it was intended as a preference, and such knowledge will not be presumed | 1205 | |
| ———Suit to set aside. | ||
| The assignee may sue to set aside fraudulent conveyances made by the debtor before the bankrupt act was passed, without valuable consideration, or to a person with knowledge of the fraudulent intent. | 990 | |
| On the trial of an action to recover property, or its value, transferred contrary to section 35, it is necessary to allege and prove a demand and refusal | 228 | |
| A decree annulling a voluntary assignment for creditors should contain a direction for a conveyance by the voluntary assignee, to the assignee in bankruptcy, and the accounting should be to him | 749 | |
| A mere general allowance in the decree of the reasonable charges and expenses of the voluntary assignee will not include expenses of a proposed account in the state | court | 749 |
| Review. | ||
| A party who seeks to review an act of a register must do so in a respectful manner | 44 | |
| Arrangement with creditors. | ||
| A creditor who has not proved his debt, though a party to the proceedings, cannot take part in composition proceedings. | 520 | |
| Payment of larger sum to one creditor or his agent, as a condition of accepting a compromise, is void. | 640 | |
| A promise to pay the creditor's agent a certain sum to urge a compromise is void | 646 | |
| A creditor, who has been compelled to repay the amount received as a condition of consenting to a composition, is entitled to prove his claim, and receive dividends | 213 | |
| New debts contracted on continuation of business, under resolution of composition, held not entitled to preference over old debts | 138 | |
| BANKS AND BANKING. | ||
| A national bank incorporated under Act June 3, 1867, can be sued only in the courts designated in section 57 | 967 | |
| A state court has no jurisdiction of an action against a national bank located in another state. Act June 3, 1867, § 57 | 967 | |
| A receiver of a national bank held not estopped from questioning jurisdiction by being substituted as defendant in place of the bank in a suit in a state court of another state | 967 | |
| Priority of claim of United States against dividends of deceased stockholder of Bank of Washington, as against debts due the bank | 61 | |
| 1213 | ||
| The Bank of Potomac has a lien upon its stock in the hands of a stockholder whose notes are lying over, unpaid. | 724 | |
| BILLS, NOTES, AND CHECKS. | ||
| A note made by an agent in Boston of a citizen and resident of California, to a citizen and resident of Massachusetts, payable in Boston, is a Massachusetts contract | 940 | |
| The law of Indiana which requires a suit against the maker, before recourse can be had against the indorser, does not govern an action in such state against the assignor of a negotiable note made and assigned in Ohio, and payable there, the assignment being a new contract | 845 | |
| The fact that checks are payable at a certain day, and not on demand, will not make them bills of exchange | 342 | |
| The distinguishing characteristics of checks and bills of exchange discussed. | 342 | |
| An indorsement by one who draws a foreign bill in his own favor, “Pay the amount to order for my use,” prevents its negotiability, and no damages can be recovered for its nonacceptance | 400 | |
| A special indorsement does not restrict the rights of the indorsee as against prior indorsers or the drawer. | 402 | |
| All indorsers or assignors of any instrument in writing, assignable by law for the payment of money (in Arkansas), become equally liable with the maker, obligor, or payee, on receiving due notice of the nonpayment or protest of such instrument | 1173 | |
| One who receives from the drawer a non-negotiable bill in payment of a debt may recover against all persons responsible on it, though it is not accepted. | 400 | |
| Demand (in District of Columbia) held not necessary until the day after the last day of grace. | 62 | |
| The want of due presentation of a check and of notice of nonpayment exonerates the drawer in so far only as actual damages resulted. | 342 | |
| A demand of payment at the placed named is not necessary as against the maker | 425 | |
| Inquiry made by the teller of the bookkeeper of a bank as to whether a deposit has been made to pay a note left for collection is a sufficient demand | 452 | |
| The demand is good though the teller acted as clerk of the protesting notary | 452 | |
| Demand of payment of a note given by citizens of one state to citizens of another, in which it was dated, but not payable at any particular place, must be made at the usual place of business of the makers. | 843 | |
| Where a note may be discharged in property at a certain time, no demand is necessary | 1160 | |
| A check is not entitled to days of grace, though payable at a certain day, and not on demand. | 342 | |
| A drawer of a check is only entitled to notice of nonpayment where he draws in the reasonable expectation of having funds to meet its payment | 342 | |
| An indorser, by taking partial indemnity, after the note becomes due, does not thereby waive legal notice | 843 | |
| A notice left with a person authorized to receive notices is not good when given after the indorser's death | 61 | |
| The payee of a note for the payment of money by a certain day, which may be discharged in property, has no right to demand property, nor can the obligor discharge it in property after the day of payment has passed. | 1160 | |
| The holder of a check is not bound to receive part payment thereof, even though the bank be willing to pay in part | 342 | |
| The rights of a holder of a protested bill as to one party cannot be affected by his failure to sue another party. | 402 | |
| The bona fide holder of half of a bank note may recover its amount on accounting for its mutilation, or proving loss of the other half. | 647 | |
| Proof of an admission of the authenticity of certain notes cannot be made by a witness who testifies that he believes the notes in suit and those admitted are the same | 425 | |
| BILLS OF LADING. | ||
| Injury to the cargo of a vessel on her maiden voyage, caused by leak from an open knot hole and loosetree nail in her bottom, where she encountered no unusual gales or stress of weather, is not caused by perils of sea | 583 | |
| A bill of lading reciting that the vessel is bound to a certain wharf in C, and undertaking to deliver at the aforesaid port of C, binds the vessel to deliver at such wharf, and lay days begin to run only from the arrival at such wharf | 1027 | |
| The statement “shipped in apparent good order and condition five cases of merchandise, value and contents unknown,” has reference only to exterrnal condition | 1058 | |
| One who advances money upon a bill of lading issued to one of the joint charterers, and covering his property, may recover the value of the same from the ship, notwithstanding a similar bill of lading agreed between the parties to have priority was theretofore issued to the other charterer | 955 | |
| A bill of lading considered as a receipt may be controlled or contradicted by parol evidence | 994 | |
| A condition as to “privilege of reshipping” does not limit the carrier's responsibility | 194 | |
| Custom at San Francisco, to pay whole freight upon a receipt of the ship's daily discharge, held to be binding upon consignees | *175 | |
| The several owners of a cargo, to whom separate bills are given, may libel for damages, though a general bill of lading be given, and the consignment be to one party in bulk | 583 | |
| BONDS. | ||
| The breach of the conditions of a penal bond should be assigned with certainty and particularity, so as to show the injury | 764,1184: | |
| Breaches may be assigned either in the declaration or replication, when performance is pleaded or suggested on the record | 764 | |
| A judgment on a penal bond with conditions, if not rendered for the penalty, to be discharged by the payment of the damages assessed, will be reversed. | 1177 | |
| BOTTOMRY: RESPONDENTIA. | ||
| The master of a chartered vessel appointed by the charterers has authority to hypothecate her | 50 | |
| A bond given in a foreign port by the charterers' agent in the charterers' name is good. | 50 | |
| Both the necessity for repairs or supplies, and of resorting to bottomry to obtain the money, must exist, to justify a master in raising it on bottomry. | 741 | |
| The lender must show the necessity for the expenditures for which the money was advanced | 110 | |
| All maritime ports, other than those of the state where the vessel belongs, are foreign to the vessel, within the rule permitting hypothecation. | 741 | |
| 1214 | ||
| 1214 | ||
| The lien will not be affected by the mere departure of the vessel from the return port, with or without the knowledge of the holder of the bond. | 741 | |
| A mortgage on the vessel taken solely to secure money loaned by an assignee of a bottomry bond will not affect its lien | 741 | |
| The court will give judgment for the whole or part of a bond as the proofs may show to be equitable and right | 110 | |
| A bottomry creditor can entitle himself to a novation in place of seamen, only by the unconditional payment of their wages | 961 | |
| A suit in the name of an assignor of the bond may be maintained, where the assignee appeared and filed a supplemental libel, which was duly answered. | 741 | |
| BOUNDARIES. | ||
| Course and distance yield to natural or artificial monuments | 394 | |
| The court is not restricted to the patent, but may refer to the original entry, survey, and plat. | 394 | |
| CARRIERS. | ||
| See, also, “Affreightment;” “Bills of Lading;” “Railroad Companies.” | ||
| A delivery to a vessel's lighter, where a receipt is given, binds the vessel | 1187 | |
| Giving goods to the mate of a vessel for transportation, and taking his signed receipt therefor, is a good delivery to the vessel | 722 | |
| The mere acceptance and transportation of goods, though there is no bill of lading or other written agreement, will subject the vessel to the common-law liability of carrier. | 323 | |
| The vessel is not liable for the loss of personal baggage gratuitously carried, unaccompanied by the owner, in the absence of proof of actual negligence or misconduct. | *371 | |
| A presumption of want of proper care or diligence does not arise from tie fact of nondelivery. | *371 | |
| A carrier's undertaking to deliver goods within a specified time is excused only by act of God or the public enemy. | 194 | |
| A carrier is obliged to deliver the proper-tv placed in his charge within a reasonable time, the determination of which depends upon the special circumstance | 194 | |
| The subsidence of water in the Ohio river, preventing a boat from passing up the falls, will not excuse failure to deliver within a reasonable time. | 194 | |
| But proof of a usage, long established, uniform, and well known, to wait for a rise in the water, will excuse failure to deliver within a reasonable time. | 194 | |
| The ship is liable for the loss of consigned goods, placed in a public store without notice to the consignee, a well-known resident of the port | 729 | |
| Negligence cannot be inferred from the fact that a vessel is on fire. If the vessel were properly protected from fire, negligent must be proved. | 559 | |
| The carrier is liable if he negligently expose property to capture by a public enemy, in consequence of which it is captured and destroyed | 1038 | |
| The property carried being confederate notes, their value at the close of the war when demand was made is the proper measure of damages, and interest should be allowed from that time. | 1038 | |
| Consignees can recover of the carrier for loss or injury to goods shipped, estimated as at the place of delivery, to the extent of advances made. | 834 | |
| To charge the carrier with an alleged deficiency, the testimony of the parties who actually loaded the vessel is the best evidence | 994 | |
| The evidence showing that the cargo as received was all delivered at the port of destination, the official weight at that place is conclusive of the extent of the carrier's responsibility, notwithstanding the terms of the bill of lading | 994 | |
| CHARTER PARTIES. | ||
| Owner not liable for repairs to vessel unless warranted to be kept staunch during the voyage | 1155 | |
| Owner not liable for barratry of master and crew beyond sum mentioned in charter party | 1155 | |
| Wrecking company chartering vessel for wrecking enterprise is bound only to ordinary diligence as a bailee for hire | 453 | |
| Under a charter party out and return with ports undefined, providing a monthly compensation, charterers are liable, where vessel is lost before its return, for the monthly rate, to time of loss. | 69 | |
| A charter party is violated by refusal of consignees to accept consignment, where they were to pay half of charter money at destination. | 10 | |
| CHATTEL MORTGAGES. | ||
| A chattel mortgage by a resident of the city of Chicago may be acknowledged before any justice of the peace for that city | 763 | |
| Possession taken by the mortgagees before the rights of any other party attach cures any irregularity in the acknowledgment of the mortgage. | 763 | |
| A chattel mortgage permitting the mortgagor to retain possession, and act as apparent owner, is not void upon its face by the common law, or the law of Massachusetts. | 67 | |
| The question of fraud in such mortgage is one of fact for the jury | 67 | |
| A mortgage of future additions to a stock in trade is valid, and operates upon the goods as fast as they are added | 67 | |
| A mortgage covering property not necessary to secure the debt which the mortgagor is to use as his own, and for his own benefit, is fraudulent and void as to creditors. | 840 | |
| COLLISION. | ||
| Nature of liability—Contributive fault. | ||
| All vessels are required to use reasonable diligence to avoid collisions | 932 | |
| The fact that a vessel is on the wrong side of the channel does not relieve another from the duty to reduce her speed to avoid a collision | 319 | |
| Inevitable accident is that which cannot be prevented by ordinary caution and maritime skill | 9 | |
| Steam ferryboat held justified in attempting to run between New York and Brooklyn, in broken and running ice, and collision with schooner in slip, held case of inevitable accident | 241 | |
| The case will be held to be one of inscrutable fault where, upon the evidence, the cause of the collision cannot be determined | 52 | |
| Failure to increase fastenings after necessity was apparent will prevent defense of vis major to vessel causing damage by breaking away in wind storm | 1124 | |
| 1215 | ||
| Rules of navigation. | ||
| It is the established rule of the Chicago river that a steamer must take the starboard side of the channel. | 319 | |
| A canalboat in the Chicago river is not subject to rule of navigation requiring a boat to be carried astern with a line ready to be thrown ashore in emergency | 524 | |
| Overtaking tow in Schuylkill river, held in fault in violating the rule of navigation requiring a vessel astern to look out for a vessel ahead | 487 | |
| Steam vessel meeting sail vessel. | ||
| A sloop is alone in fault whose unnecessary change of course caused collision with a steamer which used all possible efforts to avoid it | 1123 | |
| Steamer hove to, with steam up and sail set, must take precaution to avoid collision with sail vessel drifting while getting under way. | 923 | |
| A sail vessel is in fault where adherence to the rule that she shall keep her course necessarily results in a collision, which a change would probably have averted | 273 | |
| A steamer is presumptively liable for a collision with a sail vessel which has observed the prescribed rules of navigation | 9 | |
| Sail vessel held not in fault in running out her course, off Blackwell's Island, though overtaking steamer signaled to tack short. | 95 | |
| Vessels moored, etc. | ||
| Vessels moored at piers must be of sufficient strength to bear ordinary pressure from vessels landing or moored alongside | 1116 | |
| Tug held in fault in attempting to land steamer at pier alongside schooner just getting ready to go to sea | 1116 | |
| Schooner in such case held not in fault in not having fenders out to save injury from collision | 1116 | |
| A steamer without power of her own, and under the exclusive control of a tug, is not liable for collision with schooner at pier | 1116 | |
| The fact that a vessel causing damages by breaking her moorings was moored by the licensed pilot who brought her into port is no defense | 1124 | |
| A vessel is liable for collision, caused by the action of the tide, with a vessel lying at a dock at which she is attempting to land | 377 | |
| Steamer held not in fault for collision on foggy night, with sail vessel, whose anchor light was obscured by her sails | 9 | |
| A vessel anchored in a river in a rapid current cannot recover for injuries in a collision with a drifting sail vessel, which would have been avoided had she kept a watch. | 932 | |
| Both tug and schooner held in fault for injuries caused by the tug attempting to haul the schooner from entanglement with mooring chain of powder boat, near which she negligently anchored. | 735 | |
| Bells must be rung at shorter intervals than two minutes by vessels at anchor in crowded harbor in dense fog | 487 | |
| River and harbor navigation. | ||
| It is a neglect of proper precaution to put a steamboat under full headway just as she is entering a narrow part of the channel in the night | 654 | |
| A steamer is liable whose speed prevents avoiding a collision with a sail vessel suddenly revealed to view on rounding a bend in the river. | 1117 | |
| Barque towed astern in narrow river should have her anchor ready to let go, to check her headway in emergency | 524 | |
| Speed: Fogs. | ||
| Steamer will not be held in fault for excessive speed in fog, where it was not an element in the collision | 9 | |
| The speed of a steamer in fair-weather in open sea, being the usual rate, held not an element in tne collision, where she stopped so soon as the necessity was apparent. | 57 | |
| A speed of 16 miles an hour in a fog held excessive, and not necessary to prevent steamer from being deflected from her course | 157, 161 | |
| Steamer held to be negligent in shaping her course and in running at too great speed in fog | 96 | |
| Lights: Signals, etc. | ||
| It is neglect of proper precaution for a steamboat not to have a signal light at night | 654 | |
| The proper signal must be given an approaching vessel by one wishing to go to the opposite side of the channel | 319 | |
| Particular instances of collision. | ||
| Between tug in East river, suddenly changing her course to avoid ferry boat, and Sound steamer in her usual course | 1041 | |
| Between ship and brig, closehauled on crossing courses at the mouth of New York harbor, where one changed tack shortly before collision | 165 | |
| Between steamer and sail vessel off New Jersey coast in fair weather, where the latter failed to hold her. course. | 57 | |
| Between steamer hove to and ship towed to sea, drifting in tide after hawser cast off. | 923 | |
| Between schooner at anchor without lights or lookout on foggy night, and steamer at speed of eight miles an hour, with compass out of order, and insufficient lookout. Damages divided | 1122 | |
| Between steamer running 16 miles an hour in fog and barque whose fog horn was properly blown | 157, 161 | |
| Between steamer running at excessive speed in fog and bark lying at anchor near Newport breakwater, which failed to give adequate signal. Held both in fault | 159 | |
| Procedure. | ||
| The court has no jurisdiction of a cross libel in rem in a collision case, without a seizure of the vessel within the district | 155 | |
| Though the cargo belonged to third parties, the owner of the injured vessel as bailee, is entitled to recover for its loss | 866 | |
| There is no rigid rule which prevents libellant, alleging one fault, recovering on proof of a different fault. | 1118 | |
| Libellant may rely upon improper speed in fog, shown by defendant's evidence, although he alleged only improper steering | 1118 | |
| Libelant must show fault causing the collision on the part of the other vessel | 52 | |
| Where a stationary object is injured, the moving vessel is prima facie at fault. | 96 | |
| Proof of the situation of the injured vessel alone may be such as to throw the burden upon the other to show due care, caution, and skill. | 96 | |
| The burden is upon the owners to show that the pilot was alone in fault, where injury is committed by negligence in the management of a vessel while in charge of a licensed pilot. | 1141 | |
| A schooner and ferryboat collided, in consequence of which the ferryboat injured a third vessel. On a libel by the schooner, both were held in fault. Meld, that a cross libel for damages paid by the ferryboat to the third vessel should be dismissed | 487 | |
| Rule of damages. | ||
| Full value at time of loss, allowed where the expenses of raising and repairing the vessel, undertaken by another, amounted to more than she was worth after she was repaired | 161 | |
| Libellants cannot recover for a total loss where vessel, sold without examination and without notice to defendants, could have been raised and repaired with little outlay. | 1118 | |
| 1216 | ||
| In assessing partial loss to sunken vessel, an allowance may be made for the salvage which would have been paid if the owners had procured her to be brought in and repaired | 1118 | |
| Demurrage allowed at the rate of eight cents a ton of the vessel's carrying capacity for every day's delay | 1118 | |
| Libellant is not obliged to attempt to save cargo, where the conditions are such as to preclude reasonable expectations of success | 866 | |
| Interest should be allowed on the actual damages sustained by libellant | 865 | |
| Division of damages. | ||
| Where both tug and tow and colliding steamer were at fault for a collision, the loss was divided among the three | 319 | |
| CONSTITUTIONAL LAW. | ||
| The repeal of a law passed to supply the place of an invalid law, under which municipal work was done, will not defeat the enforcement, by mandamus, of a judgment previously obtained | 284 | |
| Legislation authorizing change in manner of procuring and securing loan by railroad held not to impair obligation of contracts of prior mortgagees, whose lien was made inferior by express reservation | 1188 | |
| Act Mo. March 19, 1870, to establish normal schools, held not to violate the principle of equal taxation, nor to be prohibited as special legislation. | 120 | |
| The fact that free schools and a state university are expressly mentioned in the state constitution, and normal schools are not, held not to amount to a prohibition against their establishment. | 120 | |
| A vessel engaged in navigation wholly between towns in the same state, though used as a connecting line for transportation into other states, is not engaged in interstate commerce | 139 | |
| Section 9, art. 1, of the federal constitution, does not apply to state governments. | 904 | |
| CONTEMPT. | ||
| A wanton attack upon the character of a register in bankruptcy in a paper filed before the judge is a contempt. | 44 | |
| An attachment for contempt does not authorize the marshal to imprison the party, after the return day, without a commitment | 724 | |
| CONTINUANCE. | ||
| Cause continued to permit party to procure reversal of decree in another court, procured without notice to him | 1073 | |
| CONTRACTS. | ||
| Effect must be given to a contract according to the law of the country which gave it validity, which law, so far as it affects the construction, mode of discharge, or obligation, is essentially incorporated into the contract | 1130 | |
| A law of a foreign country, which protects the party to a contract from execution, will be enforced in the courts of the United States. | 1130 | |
| A contractor with the state cannot insist that his contract is invalid for failure to make the deposit required by law. | 853 | |
| Vessels registered as American, and cargoes entered as such, were jointly owned rage by an alien and a citizen. Held, that the transaction was in violation of the laws of impost and tonnage, and an action would not lie between the parties to recover a balance of accounts. | 1086 | |
| A scroll made with a pen, inclosing the letters “L. S.,” will be held to be a seal, if so intended, though not expressly stated in the instrument. | 867 | |
| Contract for sale of undivided half of land, and to pay for same out of proceeds of sales in parcels, construed | 563 | |
| COPYRIGHT. | ||
| A compilation of information respecting railroads, express, telegraph, and post offices, etc., such as “Bullinger's Guide,” is a proper subject of a copyright | 649 | |
| The author cannot claim an exclusive right in a combination in his guidebook of old methods, previously separately published | 649 | |
| Bullinger's Guidebook held not infringed by Mackey's Guide | 649 | |
| The fact that the plan, arrangement, and combination of a copyrighted work originated in the brain of its author may be proved by some other person than such author. | 649 | |
| CORPORATIONS. | ||
| Power to borrow is implied in the creation of all business corporations | 12 | |
| Subscriptions to stock pledged upon a circulated paper, conditional upon a specified amount being pledged, are binding contracts so soon as the condition is performed | 79 | |
| The nonperformance of a condition upon which a subscription was to be binding is no defense, where the withdrawal of the subscription prevented such performance | 79 | |
| A withdrawal of subscriptions to enable the subscribers to establish a rival company will not relieve them from liability. | 79 | |
| The delivery of stock to an officer of the company, with a request to transfer it, is not sufficient to pass the legal title, where by its terms it is transferable only on the company's books | 350 | |
| An election of officers by minority stockholders, effected by the exclusion of other shareholders by a court having jurisdiction, is legal | 420 | |
| An irrevocable power of attorney or proxy to vote upon stock held not contrary to public policy | 420 | |
| A court of law cannot inquire into the right of a stockholder to a distributive share in the assets remaining after adjustment of the corporate affairs | 350 | |
| A cashier, holding the proceeds of corporate property sold by him, is deemed the agent of the managing board, and not of the stockholders | 350 | |
| One becoming a stockholder after bill filed by him against the corporation cannot claim relief as a stockholder | 1089 | |
| COSTS. | ||
| Costs in equity are in the sound discretion of the court; but in the ordinary course of practice, when a bill is dismissed, they are not awarded to plaintiff | 271 | |
| A libel joined a claim of $6.75 for wages j-with one of $75 for salvage service. The salvage claim was disallowed, and a decree entered for wages due, “with costs.” Held, that plenary costs were taxable | 1028 | |
| Costs were refused a seaman who sued to recover wages, where the difference between the tender and claim was only $2, although the money was not paid into court under Rule 17 | 318 | |
| 1217 | ||
| No costs are allowed in the circuit court where a case is dismissed on account of want of jurisdiction over the person, in the absence of a statute allowing costs in all cases to the prevailing party | 775 | |
| Plaintiffs in a cause removed to the federal court held not entitled to costs, where the recovery was less than $500, but should not pay costs. Act March 3, 1875, § 6; Rev. St. § 968 | 298 | |
| Defendant is not entitled to costs where a bill is dismissed upon the merits because plaintiff failed to show sufficient title, where a demurrer might have been put in | 271 | |
| Money paid by the marshal for insurance of arrested vessel cannot be taxed as costs. | 745 | |
| A party can tax for attendance of only three witnesses to one fact. Exceptions | 885 | |
| The discretionary power of the court over the award of costs cannot be exercised on an appeal from taxation | 1028 | |
| The payment of costs, given on leave to amend, is not a condition precedent | 929 | |
| A rule security for fees is not of itself a sufficient ground for a rule security for costs | 204 | |
| A bond as security for costs is good without naming the obligee | 562 | |
| COUNTERFEITING. | ||
| A law of the United States, prohibiting the circulation of counterfeit coin, is constitutional | 1201 | |
| An indictment for circulating counterfeit coin need not charge the offense to have been committed in territory within the jurisdiction of the United States | 1201 | |
| COURTS. | ||
| Comparative authority of federal and state courts: Process. | ||
| The court first acquiring possession of the subject of action or jurisdiction over the matter by process against the person has exclusive jurisdiction | 858 | |
| Jurisdiction having vested in the circuit court, it cannot be divested, by any subsequent proceeding, in a state court | 1162 | |
| Comparative jurisdictions of state and federal courts of suit to foreclose railroad mortgage bonds | 308 | |
| The circuit court cannot discharge from criminal process, issued under authority of the state, an attache of a foreign legation, though privileged from civil and criminal process, nor can it quash the proceedings | 964 | |
| A district court has not power to enjoin the prosecution of an action in a state court, even in aid of proceedings in bankruptcy . | 786,1153 | |
| A federal court in equity may enjoin, at the suit of a nonresident, the levy upon his land of a state court execution against another | 50 | |
| A summary application by motion is the proper proceeding, where a state court seeks to control the execution of process out of a federal court | 284 | |
| A state court judgment cannot be assailed in the bankrupt court, but the assignee and creditors must resort to the state court | 786 | |
| Federal courts—Jurisdiction in general. | ||
| The jurisdiction of the courts of the United States, is limited; and, the inferior courts can exercise it, only in cases in which it is conferred by an act of congress | 964 | |
| The court has jurisdiction of all proceedings consequent upon the judgment to obtain satisfaction, for the suit is not terminated until satisfaction | 1163 | |
| The federal court has jurisdiction of all questions arising in the course of the levy and collection of a tax directed by it to be made by a municipality to enforce its judgment | 284 | |
| Grounds of jurisdiction. | ||
| Petition to confirm a grant lying mostly in another state dismissed, for want of jurisdiction | 1074 | |
| The title of one owning shares in a body of land, the legal title to which, originally in three trustees, was conveyed to him, under a six years'Jease, with covenant to sue to recover the same, is sufficient to give the circuit court jurisdiction | 440 | |
| In a case of asserted fraud or constructive trusts created by operation of law, jurisdiction does not depend upon the location of lands affected by the decree | 116 | |
| A federal court may by injunction protect the right of the patentee or his assignee from infringement, irrespective of the citizenship of the parties | 302 | |
| The fact that the subject-matter of a contract is a patent right does not give the federal courts jurisdiction of a bill for specific performance | 302,813 | |
| A receiver appointed by a federal court cannot maintain a suit in a federal court of a state other than that of his appointment | 124 | |
| In respect to jurisdiction of the federal courts, a person can be a citizen of but one state, and that is determined by his domicile. | 902 | |
| The motive of the act of moving from one state to another in order to prosecute suits in the federal court, if the removal be real, cannot be inquired into | 117 | |
| A judgment entered on a bond with warrant of attorney was set aside, both parties being citizens of the state | 954 | |
| Where a necessary party defendant, not brought in, is a citizen of the same state with plaintiff, the court cannot take jurisdiction on the ground of diversity of citizenship | 124 | |
| The equitable jurisdiction of the federal court, in suit between citizens of different states, is not affected by the fact that a state law gives relief at law | 50 | |
| A federal court has jurisdiction where the declaration for money had and received describes the parties as citizens of different states, and plaintiff proves his case by a note to a third person, who is a citizen of the state with him | 414 | |
| A tenant in common of land, who is a citizen of another state, may sue in the circuit court for his portion, irrespective of the citizenship of his cotenants | 440 | |
| A deed which is not intended to give, and which does not give, jurisdiction to the court, cannot be said to be given in fraud of the law, merely because it changes the nature of the suit | 353 | |
| The holder of a note, payable to a certain person “or bearer,” may sue thereon in the federal court, if a citizen of another state, regardless of the citizenship of the payee named | 624 | |
| The indorsement of a writing obligatory is regarded as a new contract, and the indorsee, being a citizen of another state, may sue his immediate indorser in the federal court irrespective of the citizenship of the maker | 1173 | |
| But as against remote indorsers, except in the case of a foreign bill of exchange, plaintiff must show that the intermediate indorsers could have sustained an action in the federal court | 1173 | |
| The provision in relation to suits by assignees (Act 1789, § 11) is inapplicable to a conveyance of land between citizens of different states | 117 | |
| The citizenship of plaintiff and his assignor must be stated as of the date of commencement of the suit, not at the time of the assignment | 7 | |
| 1218 | ||
| See, also, “Domicile.” | ||
| Federal courts—Circuit courts. | ||
| The circuit court has jurisdiction of an action by an assignee in bankruptcy to recover property, or the value thereof, transferred contrary to section 35 of the bankrupt act of 1867 (§2) | 228 | |
| A bill filed in one state by a complainant residing in another will be dismissed, where respondent shows that he has his domicile in still another state | 773 | |
| District courts. | ||
| The district court has no jurisdiction in rem for seamen's wages for services exclusively within the state | 297 | |
| Division of Spanish claim not allowed in the district court | 654 | |
| District court in admiralty is not in all cases bound by the city ordinances regulating navigation | 524 | |
| Administration of state laws and decisions. | ||
| State laws as to rights furnish rules of decision for the federal courts; otherwise as to remedies | 1161 | |
| A construction by the legislative and executive departments of a state of its constitutional provisions in respect to taxation will be followed by the federal courts, unless manifestly erroneous | 284 | |
| Where objections have not previously been raised as to the legality of a tax, the federal court will not delay judgment to await a decision by the state court | 284 | |
| A state statute prohibiting the sale on execution of an equity of redemption does not become a rule of practice of the federal court until adopted | 1175 | |
| State laws do not constitute a rule of decision to United States courts sitting as courts of equity | 858 | |
| Circuit court has jurisdiction to declare void a fraudulent assignment, notwithstanding special provisions of state statute directing procedure in such cases | 858 | |
| Proceedings supplementary to execution, substituted by state law for proceedings by creditor's bill, cannot be resorted to in a federal court | 941 | |
| State court decisions on questions of general jurisprudence are not binding upon the federal court | 15 | |
| State court decisions are not controlling on a question as to the general power of brokers in dealing with their principal property | 4 | |
| Procedure. | ||
| Common-law practice of state court not followed in federal court, except as it existed at the passage of the act of 1789, and as adopted by rule since | 82 | |
| “Practice” defined, and the practice act construed | 916 | |
| CREDITOBS' BILL. | ||
| The vigilant creditor acquires, by pursuing his claim, a preferable equity, which attaches and becomes a specific lien by the filing of his bill | 858 | |
| CRIMINAL LAW. | ||
| The author and publisher of a libel in the District of Columbia may be there indicted and punished for an offense against the United States | 587 | |
| A district judge will not issue a warrant for the removal of an offender indicted in another district, where the indictment is fatally defective in averments essential to constitute an offense in such district | 587 | |
| CUSTOM AND USAGE. | ||
| Proof of usage is inadmissible where the law is settled to the contrary | 402 | |
| CUSTOMS DUTIES. | ||
| Customs laws. | ||
| The repeal of a paragraph in a revising act held not to revive or leave in operation a similar paragraph of the original act | 910 | |
| Rates of duty. | ||
| Calcutta, in the British East Indies, is to be regarded as a country beyond the Cape of Good Hope. Act July 14, 1862, § 14 | 1157 | |
| “Calf-hair goods,” manufactured of cotton and hair, the warp being cotton, and the woof being cattle hair, is not dutiable as a manufacture of hair, but as a manufacture of cotton. Rev. St. §§ 2499, 2504 | 921 | |
| “Terne tin” in strips formed of short plates locked together, and coated, held dutiable as “terne tin,” and not as articles or manufactures of tin. Act July 14, 1862 | 468 | |
| Invoice: Appraisal. | ||
| The actual amount arriving, and not the amount shipped, is liable for duty, in the absence of proof that the loss in transit improved the quality of the goods. Acts 1846, § 8; 1842, § 16 | 475 | |
| The dutiable value in case of loss by leakage is ascertained by deducting from the dutiable value of the invoice amount the amount of deficiency shown by the returns of the official weigher and gauger | 475 | |
| A pro rata abatement is also made upon the amount of incidental charges at port of shipment, and upon the value of the hogsheads, etc | 475 | |
| The appraisement is void, where the appraisers do not, in substance and effect, open and examine at least one package in every ten | 726 | |
| A failure in such respect is available under a protest that “the goods were not fairly and faithfully examined” | 726 | |
| Defects in the collector's proceedings in the assessment are not available to plaintiff unless he has relied on them in his protest | 726 | |
| Defects in the proceedings of government appraisers are immaterial, where the importer claims an appeal to merchant appraisers | 726 | |
| Payment: Protest: Appeal. | ||
| Protest is not required to be made before the payment of the estimated duties | 475 | |
| The protest is legally made when the duties are finally determined and the amount assessed by the collector | 475 | |
| A protest is not required to be made with technical precision | 726 | |
| A protest to “extend to all our importations of since the operation of the present tariff” held to apply to all subsequent importations of like character, but not to duties previously paid | 475 | |
| Violation of law: Forfeiture. | ||
| Where goods were not entered on manifest, and master failed to produce evidence of his purchases, held cause for condemnation. 1 Stat.665 | 888 | |
| Collection officers. | ||
| Officer wrongfully seizing goods, if without probable cause, is liable for all losses and injuries; but if with probable cause, only for those caused by ordinary neglect | 746 | |
| The collector is not liable for goods lost while on deposit in a customhouse warehouse, in the absence of personal negligence. Negligence cannot be inferred from the mere loss | 153 | |
| 1219 | ||
| The collector is not personally responsible for the negligence of his subordinates | 153 | |
| Daily intoxication of the bookkeeper is not sufficient to charge the collector with a loss not shown to have been caused thereby | 153 | |
| DEBT, ACTION OF. | ||
| Debt lies in all cases, where a sum certain is due to the party, although it arise from a collateral undertaking | 624 | |
| Debt will lie against a stockholder to recover the amount of a dishonored bank note, where the charter makes the stockholders personally liable in such case | 624 | |
| DEED | ||
| A conveyance of lands, of which the grantor is out of possession at the time of the execution of the deed, may be valid in Pennsylvania | 440 | |
| The delivery of a deed by the grantor to the recorder is not conclusive as a delivery. | 614 | |
| The delivery to a third person, in order to keep it secret, of a deed made to the grantor's son for services and affection, a lease for life being taken back from him, held good, and not invalidated by the grantor's subsequently taking back the deed for safe-keeping | 356 | |
| The fact that no possession was had under a deed for half a century, and no claim made or taxes paid, will rebut presumption of delivery, as against bona fide purchaser in possession | 568 | |
| A deed of trust in the nature of a mortgage is technically a deed for the purposes of execution, acknowledgment, and recording | 12 | |
| The word “heirs,” as used in a granting clause, construed | 428 | |
| Under the territorial government, the copy of a deed recorded is prima facie evidence of its execution | 568 | |
| DEPOSITION. | ||
| Depositions may be taken under the act of congress after the expiration of a rule to take them | 562 | |
| Defendant is not guilty of laches in not procuring commission until 10 months after plea, where it was procured immediately after replication filed | 538 | |
| Defendants not served with process should be notified of the taking of depositions, if they lived within 100 miles of the place of caption | 425 | |
| Form of notice of taking deposition | 885 | |
| Witness, when reducing his testimony to writing, need not be in presence of magistrate | 885 | |
| All formal objections to taking depositions must be indorsed on them before the trial | 275 | |
| It is no objection to a deposition that the magistrate omitted to certify that he cautioned the witness | 425 | |
| Accidental omission of word from caption, or incorrect caption, is not necessarily fatal. | 562,885 | |
| The deposition of a witness, who resides 300 miles away, taken de bene esse, cannot be read, unless the witness was served with a subpoena, and it appears that, from some sufficient reason, he cannot attend | 373 | |
| Practice of law court, on trial of feigned issue out of equity, as to depositions previously taken on the equity side | 1011 | |
| Depositions taken de bene esse, and without notice to the opposite party, in suits at common law, are not admissible in the trial of feigned issues out of equity | 1011 | |
| DESCENT AND DISTRIBUTION. | ||
| The heirs of a deceased beneficiary whose estate has been fully settled, and debts satisfied, may maintain suit in respect to a trust in real estate, notwithstanding it has in equity been converted into personalty | 667 | |
| Real estate of the creditor, in the hands of his devisee or heir, will not be subjected to satisfy the representatives of the personal estate of the same creditor | 516 | |
| DOMICILE. | ||
| See, also, “Courts.” | ||
| A person cannot be a resident of two states at the same time | 60 | |
| A person having two places of residence may elect which shall be his domicile | 773 | |
| The residence of the wife is in subordination to that of the husband | 773 | |
| A former domicile is presumed to continue until a new one is clearly shown. | 773 | |
| A person may be regarded as having his domicile in a state in which he owns and cultivates land on which he resides with part of his family, with the intention of moving the rest of his family, though he has not acquired the right to vote there | 773 | |
| Removal into another state, with intention of making it a place of permanent residence, will effect a change of domicile, notwithstanding the person continues his estates in the state from which he removed, and is elected a member of the legislature thereof | 904 | |
| Mere residence is evidence of domicile, but may be shown to be for temporary purposes. The intention is to be collected from the acts, and not the declarations, of the person | 902 | |
| The declarations of a party as to his intentions in changing his residence are competent evidence for him in connection with his acts | 773 | |
| DURESS | ||
| A note given under the threat of interference to defeat a proposed compromise is void in the hands of the payee | 646 | |
| EASEMENTS. | ||
| A covenant to keep open and free of incumbrances a right of way limited to particular purposes will prevent any kind of obstruction | 449 | |
| EJECTMENT; | ||
| See, also, “Real Property.” | ||
| Where a rule on the tenant in possession can be taken, and the effect of a judgment under such a rule | 1167 | |
| An equitable defense is inadmissible in the United States circuit court | 916 | |
| The purchase of a disputed title to real estate (in Maine) affords no defense to the tenant in an action to eject him because of maintenance or champerty | 770 | |
| It is not necessary to produce a conveyance from the warrantee of lands in the Pennsylvania new purchase. The production of the patent is sufficient | 373 | |
| When plaintiff's term expires before the trial, he may proceed for damages, for the trespass, and for mesne profits | 373 | |
| In an action for mesne profits, the confession of entry by defendant in ejectment is sufficient to enable plaintiff to recover aliter, when the judgment was by default | 373 | |
| 1220 | ||
| Bona fide holder under invalid title, but with belief of good title (in Texas), is entitled to be paid for permanent and valuable improvements | 1158 | |
| But one acquiring title pending suit to recover the property cannot recover for improvements made after the commencement of the suit | 1158 | |
| Act Me. June 27, 1820, relating to compensation for improvements, construed | 127 | |
| Plaintiff need not commence suit within the year, after judgment against him, where defendant commences a suit for the same property within the year against plaintiff's grantees | 460 | |
| A plea in such action in the nature of a reconvention, claiming title to the property in dispute, and demanding damages for trespass is equivalent to a new action | 460 | |
| ELECTION OF REMEDIES. | ||
| The right to proceed in rem does not exclude the remedy in personam | 71 | |
| EMINENT DOMAIN. | ||
| The title of owners of land in the state of Tamaulipas could be divested by a decree of its congress without compensation. | 460 | |
| When the public purpose for which expropriation is exercised is accomplished, or has ceased to exist, the residue of the property belongs to the original owner | 460 | |
| But this reverter must be subject to any bona fide rights that may have lawfully accrued in the meantime | 460 | |
| EQUITY. | ||
| Neither congress nor the courts can do away with the distinction between law and equity, nor the forms used, nor the causes and reasons which distinguish one from the other | 916 | |
| Courts of equity possess a general concurrent jurisdiction with courts of law in cases of fraud cognizable in the latter | 990 | |
| Equity has jurisdiction to relieve against a meditated fraud, which throws a cloud over the title of a party | 116 | |
| Equity will direct the cancellation of a contract for fraud or mistake, but it cannot alter the contract | 302 | |
| Equity may enforce the contract after it has been reformed, or grant the relief to which complainant shows himself entitled | 472 | |
| Equity cannot afford relief against the defective execution of a power created by law | 127 | |
| Relief will not be granted where it requires an adjudication of the rights of a state, which cannot be made a party | 15 | |
| To deprive equity of jurisdiction on the ground of remedy at law, the latter must be as efficient to the ends of justice, and its complete and prompt administration, as the remedy in equity | 420 | |
| Equity has jurisdiction in a case of irreparable injury to plaintiff, where no such injury can be produced to defendants | 420 | |
| A suit will lie by the legal owner, out of possession, to annul a deed to which his name is forged | 660 | |
| Neither the trustee of an express trust, guilty of malversion, nor a confederate procuring the property of the beneficiaries by fraud, can claim a bar by lapse of time | 667 | |
| ESTOPPEL. | ||
| The recitals in a deed estop only parties or privies claiming under or against it, and in a controversy founded upon its covenants | 806 | |
| The purchase of a license to use a patented machine does not estop the licensee, in an action for infringement, from showing any defense available to a stranger | 806 | |
| Defendant held estopped from contesting the validity of complainant's patent by an agreement to discontinue manufacture, made after default in a prior suit | 292 | |
| EVIDENCE. | ||
| Judicial notice. | ||
| Taken of laws of state whose territory once included the lands in controversy | 460 | |
| The federal courts are bound to take notice of the officers of the respective courts of the United States | 608 | |
| Best and secondary. | ||
| Diligent search to find a subscribing witness is not sufficient to dispense with his testimony, if it appears that he was in the country | 196 | |
| Documentary. | ||
| A consul's certificate is not evidence of acts not official, or within his personal knowledge | 399 | |
| Such certificate is evidence to remit a penalty due to the United States | 399 | |
| An execution held not admisible in evidence without the judgment on which it was issued | 1184 | |
| Books of the parties to a transaction held not evidence for either of them, unless supported by other evidence | 1086 | |
| A letter from plaintiff's assignor, introduced in evidence by defendant, is evidence for plaintiff on those points which are in his favor | 1168 | |
| Parol, etc., affecting writings. | ||
| Parol evidence held admissible to explain receipt for freight of property lost in transit | 897 | |
| Parol evidence is not admissible to prove the licensing of a pilot, where the statute requires a record to be made by the secretary of the board of pilot commissioners | 1055 | |
| One guarantying the purchase price of the sale of'timber lands cannot show a parol warranty as a consideration, where such consideration is expressed to be a permit to enter and cut the timber | 541 | |
| Parol evidence is admissible to show that subscriptions to corporate stock pledged on a circulated paper were conditional upon a certain amount being pledged | 79 | |
| Declarations: Admissions | ||
| Declarations of defendant, put in evidence- by complainant, may be used by either party | 356 | |
| The admission of one defendant does not go to charge his codefendant | 562 | |
| At former trial and in another suit. | ||
| Testimony of a witness taken in a former suit, for the same cause of action between the same parties, discontinued, held not admissible | 76 | |
| Competency: Relevancy: Materiality. | ||
| Bank checks drawn by plaintiff payable to defendant or bearer, and paid by the bank, are not, of themselves, evidence of money paid to defendant | 691 | |
| Instruments executed at same time with power of attorney to sell, relating to the same subject-matter, held admissible to elucidate meaning of latter | 692 | |
| Comparison of handwriting is evidence to prove the publication of a libel | 231 | |
| Official certificate as to the custom of the office as to the time of affixing a seal held not evidence to show such time | 373 | |
| 1221 | ||
| Weight and sufficiency. | ||
| The certificate of a public officer, of acts done in the execution of his duty, will not be impeached by the evidence of a single witness | 373 | |
| EXECUTION. | ||
| A motion for new trial, or in arrest of judgment, is a waiver of a stay agreed upon by the parties | 63 | |
| A levy on personal property, shown by the return to be sufficient to pay the debt, discharges defendant | 1177 | |
| Property levied upon is at the risk of-the officer if he fails to take a delivery bond, and he is responsible for its forthcoming | 1177 | |
| In an action against the officer for loss of goods levied upon, their value may be shown by parol, where the return is silent on that subject | 1177 | |
| Redemption is complete on acceptance by sheriff of draft for amount, though it is not collected until after expiration of time | 607 | |
| Against the person. | ||
| Construction of Massachusetts and federal statutes relating to imprisonment for debt | 1163 | |
| Selection of justice of peace by officer, at request of debtor, must be considered the act of the debtor | 569 | |
| Where the justices have jurisdiction, their certificate is conclusive as to regularity of preliminary proceedings | 569 | |
| After surrender to the custody of the jailer, the debtor cannot complete the disclosure theretofore begun, and further proceedings by the justices are without jurisdiction | 766 | |
| EXECUTORS AND ADMINISTRATORS. | ||
| An administrator, having stated that he has property in his hands, may be called upon in equity to account for it to creditors anywhere | 509 | |
| A sale by an administrator, without giving the proper bond, is void | 127 | |
| Administrator's sale of realty cannot be avoided for irregularity by a stranger to decedent's title | 770 | |
| An administrator de bonis non cannot support an action in his own name for goods of his intestate sold by the previous administrator | 1034 | |
| A federal court in one state cannot regard letters testamentary or of administration granted in another state, and such letters give no authority to sue | 459 | |
| No action can be maintained against an executor or administrator, on a debt due from the estate, unless he has been duly qualified by a probate tribunal in the state or county where the suit is brought | 1036 | |
| Administrators are bound to plead before the expiration of a year from the date of the letters of administration | 565 | |
| Plea to sci. fa. against an administrator, suggesting waste, that defendant had fully administered the personalty, and had tendered lands more than sufficient to satisfy the execution, held demurrable | 32 | |
| A decree against an executor for legacies is no bar to an action on the executor's bond | 506 | |
| EXTRADITION. | ||
| “Crime,” in Const. U. S. art. 4, § 2, relating to extradition, means any offense indictable by the laws of the state demanding the surrender, and is not confined to common-law crimes | 732 | |
| Statements by the arresting officer, conveying the impression that the criminal proceedings could be averted by settling the prisoner's indebtedness, held not sufficient to show intent to abuse process | 732 | |
| The courts of a state through which a prisoner is being carried to the place of the crime, after regular extradition proceedings in another state, have no power to release him on habeas corpus | 732 | |
| Regularity of procedure on extradition for statutory crime | 732 | |
| FACTORS AND BROKERS. | ||
| Property intrusted to a broker for sale, and pledged by him to secure a personal loan, may be recovered by the owner from the lender | 4 | |
| Advances by a factor are considered as made on the joint credit of the fund deposited with him and the principal | 832 | |
| A factor authorized generally to sell on credit is liable for the loss on a sale to one who is insolvent or doubtful, if, by reasonable diligence, he might have known such fact | 832 | |
| FALSE IMPRISONMENT. | ||
| A person, to sustain an action against an officer for an arrest for violation of a by-law of a municipal corporation, must show his exemption from the provisions thereof | 426 | |
| FRAUDS, STATUTE OF. | ||
| A sold note signed in duplicate by the brokers only held not sufficient as a memorandum in writing to charge the purchasers | 914 | |
| FRAUDULENT CONVEYANCES. | ||
| A conveyance, which purports to be bona fide, and for a valuable consideration, will be taken to be so, until the contrary is shown | 117 | |
| The transfer of property without consideration by a debtor on the eve of contracting new debts, though without actual fraud, is void as to creditors | 1074 | |
| Conveyance to a son-in-law by one who shortly afterwards took benefit of bankrupt act, and scheduled the property, no claim thereunder having been made for 50 years, held fraudulent | 614 | |
| A mortgage given in part to defraud creditors is void altogether | 829,840 | |
| A creditor who first sues in the circuit court to set aside a fraudulent assignment has a prior equity to the payment of his entire debt, notwithstanding provisions of state laws in such cases for equal distribution | 858 | |
| Deed absolute executed the same day, with an agreement to hold the property in trust for the grantor, held void as to creditors and prior purchasers | 688 | |
| A conveyance made to enable a party to maintain suit in a federal court cannot be questioned by one not claiming under either party | 117 | |
| GRANT. | ||
| Sufficiency and validity of survey and settlement of lands in the Pennsylvania New Purchase | 353 | |
| The date of the warrant, and not that of the payment of the purchase money, is the period from which the two years, allowed for the settlement, are to run | 373 | |
| Everything necessary to designate the land covered by the warrant, so as to prove 1222 it to be withdrawn from the general mass of property, and appropriated to the use of an individual, must be proved | 353 | |
| Every line of a survey need not be run and marked on the land. It is sufficient if the lines are run and marked on the ground so far as to enable the surveyor to lay down each particular tract by protraction | 353 | |
| A patent for land, is presumptive evidence that the proper steps have been regularly pursued | 373 | |
| GUARANTY. | ||
| The seller of goods cannot recover upon a letter of guaranty under a count for money had and received, though the defendant obtained by credit from the purchaser the value of the goods purchased thereunder | 787 | |
| Plaintiff must show notice of acceptance of the letter of guaranty within a reasonable time, and of the value of the articles furnished thereunder | 787 | |
| A guarantor whose obligation has become absolute, and who pays the debt, cannot sue the original debtor in the name of the creditor, although he took an assignment from him; otherwise, where the debt is assigned in consideration of the payment | 366 | |
| GUARDIAN AND WARD. | ||
| A guardian appointed in one county (in Maryland) held competent to give a valid receipt for the purchase money of land in another county | 231 | |
| HABEAS CORPUS. | ||
| A person surrendered by his bail, and prayed in custody, but not charged in execution, may be discharged upon habeas corpus | 724 | |
| The writ will not be granted after an unconditional pardon to one not restrained of his liberty, although he refuse to accept the pardon | 1075 | |
| The federal courts may issue the writ in behalf of anyone restrained of liberty in violation of the constitution or treaties or laws of the United States | 98 | |
| A person imprisoned on conviction in the state court of an offense exclusively cognizable in the federal courts will be discharged on a writ issued from a federal court | 98 | |
| The court, in such case, may recommit him to await the action of the federal grand jury | 98 | |
| A person indicted in a state court for an act done in pursuance of and warranted by federal authority will be discharged on habeas corpus by a federal court or judge | 619 | |
| A circuit judge has no jurisdiction to review, on habeas corpus, the judgment of the circuit court, on a conviction under a repealed statute | 1075 | |
| HUSBAND AND WIFE. | ||
| To fully protect the wife's rights, the deed to her must indicate the intent to convey for her sole and separate use. Act Ill. 1861 | 21 | |
| Property conveyed by the husband to the wife through a third person is not acquired by her from a “person other than her husband” (Act Ill. Feb. 21, 1861), and the rents and profits still belong to him | 21 | |
| An action cannot be maintained against the husband for the debt of the wife, after her death, upon an express promise made in her lifetime without consideration | 1073 | |
| INDEMNITY. | ||
| The holder of collateral security is not liable for a loss occurring without his fault, nor for neglecting to enforce the security when the debtor was, by the understanding of the parties, to do this | 384 | |
| In stating an account between mortgagor and mortgagee, the latter should be charged with the full value of collateral security confiscated in his name as enemy property | 384 | |
| INFANCY. | ||
| Minor seamen over the age of 14 may sue in their own names for wages or salvage | 384 | |
| A guardian ad litem in such a case will not be admitted to sue in forma pauperis | 384 | |
| The court may appoint a standing officer, and discharge him from all liability for costs, where the infant is unable to produce a responsible person as guardian ad litem | 384 | |
| INFORMERS. | ||
| It is only the giving of information which led to the seizure which entitles a person to a part of the penalty as an informer | 82 | |
| INJUNCTION. | ||
| Relief will be granted where a tenant, pending ejectment, has acquired a title paramount, not available either as a defense, or after recovery, to sustain an action to regain possession | 127 | |
| A preliminary injunction will not be granted to restrain a railroad company from continuing, as ultra vires, a business competing with complainant | 1089 | |
| A preliminary injunction will not be granted on bill by stockholder against corporation, where there is no question of forfeiture of charter, but only erroneous administration of corporate faculties | 1089 | |
| The fact that some defendants had not been served will not prevent issuance of injunction against those served | 420 | |
| Notice to a corporation at its office of application for injunction is notice to the directors, but not to stockholders who are not directors | 420 | |
| A defendant whose affidavit is used to oppose the application is estopped from setting up want of sufficient notice | 420 | |
| An affidavit made by defendant to oppose a motion for an injunction, which denies a material allegation of the bill, must be construed as an admission of all other allegations not controverted | 420 | |
| The court, at an adjourned session, will not hear a motion to dissolve an injunction upon notice given after the first session of the term | 725 | |
| If the answer be filed in term time, the court will hear a motion to dissolve the injunction at any time upon reasonable notice | 1042 | |
| INSANITY. | ||
| The court will appoint a committee in the District of Columbia to take care of the property of a person found lunatic in Maryland | 749 | |
| The mode of ascertaining the lunacy is by a writ in nature of a writ de lunatico inquirendo | 749 | |
| INSOLVENCY. | ||
| A state court acquiring possession and control of the insolvent debtor's property has power to dispose of it, and give a good title | 858 | |
| Upon proof of fraud, the court will refuse to permit the debtor to take the insolvent oath under the law of Virginia | 1128 | |
| 1223 | ||
| Discharge under state insolvent law held bar to debt of master of vessel for supplies sold on credit, there being no evidence of fraudulent design in omitting debt from schedule | 977 | |
| A discharge under the insolvent law of the District of Columbia does not operate against a nonresident creditor not appearing | 225 | |
| A nonresident creditor, bringing a suit within the District, is still entitled to the benefit given nonresident creditors. Act May 6,1822 | 225 | |
| A debtor who is out on bail is not in “confinement” at the instance of the creditor, within the meaning of Act May 6,1822 | 225 | |
| A discharge under a state insolvent law is no bar to an action on a foreign contract | 940, 1161 | |
| Evidence that a discharge was fraudulently obtained cannot be admitted on a collateral motion | 1161 | |
| INSURANCE. | ||
| One in possession of the property of another, to whom he advanced a portion of the purchase money, and who holds a power of attorney authorizing him to sell, has an insurable interest | 472 | |
| The receipt of the premium by the duly-constituted agent on delivery of the policy binds the company, though the policy is not countersigned by him | 3126 | |
| An insurance broker, who has placed the risk, and to whom the company delivers the policy for delivery to the assured, binds the company by accepting payment of the premium, though he never turns it over. | 1001 | |
| A mutual mistake in the policy will be corrected, even after loss, where it can be shown from the application or by oral testimony | 472 | |
| The mistakes of the local agent of the company in preparing the application are prima facie chargeable to the company. | 472 | |
| The policy is binding where the property is properly represented, although the insurer is mistaken as to the extent of its liability to fire | 1126 | |
| The different kinds of warranties, affirmative and promissory, express and implied, discussed | 984 | |
| Where answers are responsive to direct questions asked by the insurer, they are to be regarded as warranties; where not so responsive, but volunteered, they should be construed to be mere representations | 590 | |
| Untrue warranties avoid a policy, regardless of their materiality; otherwise as to mere representations | 590 | |
| Stipulations in a policy on a mill that the forcing pump should be kept in good working order, and water-casks and buckets kept in each room, are not warranties, and a substantial compliance is sufficient | 984 | |
| The policy is void where the property insured represented as an oil warehouse is in fact an oil refinery, whose risk is essentially greater | 1126 | |
| The insurer, claiming a forfeiture of a policy, for noncompliance with certain conditions, is bound by the reasons assigned at the time | 1001 | |
| Notice of loss within a reasonable time, under all circumstances, is sufficient under a policy requiring it to be given “forthwith” | 411 | |
| The question of reasonable time is for the jury | 411 | |
| A trustee of one to whom a loss is payable by the policy may refer it to arbitration, where empowered by the cestuique trust to adjust and sue for the loss | 379 | |
| A trustee cannot recover upon a policy procured by him which, by its express terms, makes the loss payable to his cestuique trust, unless he has an interest therein | 379 | |
| A mutual life insurance company held liable for the amount insured by endowment policy, without deduction for unpaid premium notes, given upon the representation that they would be paid by dividends | 298 | |
| INTEREST. | ||
| A receipt given for the principal is no bar to a recovery of interest, where the question of interest is expressly reserved at the time | 801 | |
| A judgment which gives a greater rate of interest than 6 per cent, after its rendition is reversible, though such greater rate is stipulated in the contract | 948 | |
| INTERNAL REVENUE. | ||
| A stamp is not necessary to an acknowledgment of having hired a house | 435 | |
| The taxpayer cannot be examined as to returns and payments made prior to the passage of Act June 30, 1864 | 330 | |
| The assessment cannot be re-examined after the assessor has accepted the returns, assessed the tax, made a return, and the tax has been paid | 330 | |
| An acceleration of a succession, by an amicable agreement, by which the life tenant receives absolutely a certain proportion, and the remainder-men the balance, held within sections 27 and 35 of the act of 1867, and' the property liable for the tax | 480 | |
| Time from which reduction of producing capacity of distillery takes place | 1042 | |
| The repealing clause of Act Jan. 11, 1868, did not operate to prevent conviction and punishment for an offense, under Act July 13, 1866, § 42 | 1075 | |
| Both the collector who issues the permit and the one who removes spirits from a bonded warehouse, without payment of tax, in pursuance of a conspiracy to defraud the government, are guilty of a misdemeanor. Act March 2, 1867, § 30 | 1051 | |
| JUDGMENT. | ||
| Rendition and entry. | ||
| The court will not allow parties to be injured or prejudiced by any misunderstanding between their counsel | 1156 | |
| Operation and effect. | ||
| A judgment is not subject to collateral impeachment | 1184 | |
| A judgment will not bar a matter not actually litigated and decided | 781 | |
| The force of former judgments between the same parties, whether foreign or domestic, or in different states of the Union, and whether in personam, or in rem, considered | 781 | |
| Relief against: Opening: Vacating. | ||
| A judgment of a previous term cannot be set aside on motion | 489 | |
| Usury is no ground for relief in equity, if the question of usury was decided in the action, though a defect of evidence, sufficient to sustain a bill of discovery, is alleged | 47 | |
| Of different jurisdictions. | ||
| A judgment of a United States court is admissible, when authenticated, as provided for judgments of state courts. 1 Stat 122 | 608 | |
| A foreign judgment is conclusive as to the same subject-matter, save as it is subject to impeachment for want of jurisdiction and notice to defendant | 855 | |
| Personal judgment on a money demand | ||
| 1224 | ||
| A judgment rendered against one only of several defendants, jointly liable, who was personally served, if valid where rendered, is valid everywhere | 855 | |
| Where a foreign judgment is pleaded in bar to a suit on a note, plaintiff may show that the note was withdrawn, in the trial abroad, and not passed upon by the jury, where such evidence does not contradict the recitals of the record | 781 | |
| A record which does not contain a writ, or show a service, nor an appearance of the party, nor any issue nor any act done by attorney, is not admissible, although it states that “the parties appeared by their attorneys” | 608 | |
| Actions on judgments. | ||
| A foreign judgment is not considered as a record, and a plea to such judgment of nul tiel record is bad, and may be treated as a nullity | 778 | |
| A judgment resued in a state court of another state is barred by a discharge in insolvency in the state where originally obtained | 66 | |
| A judgment at law will not be enforced in equity for a greater amount than is equitably due the creditor | 516 | |
| JURY. | ||
| A juror will not be allowed to make affirmation in lieu of oath, on the ground that he is a Methodist, where it is not contrary to the principles of that religious society to take an oath | 506 | |
| JUSTICES OF THE PEACE. | ||
| An authority which may be exercised by an individual magistrate may be exercised by many jointly | 723 | |
| A creditor cannot, without the consent of the debtor, relinquish part of his claim so as to bring it within the jurisdiction of a justice of the peace | 879 | |
| Where a justice renders no judgment, his proceedings are a nullity, and may be set aside on certiorari | 1146 | |
| LANDLORD AND TENANT. | ||
| A lease for 99 years, not acknowledged and recorded, is not good for 7 years, but is evidence of the rate of renting, in an action for use and occupation | 204 | |
| A lease is canceled by the bankruptcy of the lessee, where, by its term, it cannot be assigned without the landlord's written consent | 43 | |
| The landlord is entitled to compensation for use and occupation after the adjudication in bankruptcy. Where the rate named in the lease is reasonable, such rate will be allowed | 43 | |
| The landlord is entitled to reimbursement for injuries to his building, caused by the removal of the tenant's machinery, on cancellation of the lease | 43 | |
| Goods not upon the premises may be attached (in Virginia) to secure rent not due | 200 | |
| A landlord, by hiring out, in another state, property destrained for rent, does not lose his lien | 1084 | |
| The court will not interfere in a summary way for the restoration of the premises to the tenant after the landlord has been let into possession by a hab. fac. poss | 1085 | |
| LIBEL AND SLANDER. | ||
| An innuendo is not necessary to connect words actionable per se with extrinsic facts | 191 | |
| Special damage to one's business may be shown where the publication is libelous per se, though the words were not published concerning the business: and the names of customers lost need not be alleged | 191 | |
| A false publication concerning one that there are “suits pending against him to the effect that he has put himself in unlawful relations with the wives of other men” is libelous per se | 191 | |
| An indictment alleging that defendant composed a libel in the District of Columbia, and published it in Michigan, and that it was afterwards published in the District of Columbia, is not sufficient to charge an offense there | 587 | |
| LIENS. | ||
| See “Maritime Liens.” | ||
| Consignees making advances on the goods have a paramount lien therefor, and the consignor has no right to divert them, or stop them in transitu | 834 | |
| The lien on the property of a prison contractor under the provisions of his contract required by law held valid, and enforceable in bankruptcy | 853 | |
| A laborer hired generally to work in building or repairing a vessel has no lien under Act Me. Feb. 19, 1834, c. 624 | 1067 | |
| The rule of the maritime law giving a lien on the vessel for labor or material in building or repairing does not obtain at common law | 1067 | |
| LIMITATION OF ACTIONS. | ||
| A state statute of limitations (New Hampshire), in effect a transcript of the English statute, does not apply to an action of debt against a stockholder to recover on a dishonored bank note | 624 | |
| The state statute of limitations is inapplicable to a suit in admiralty, as a rule of decision | 404, 982 | |
| Such statute may be adverted to in considering the question of laches or the stale-ness of a claim | 982 | |
| A claim against a resident master for supplies to foreign vessel held not lost by seven years delay to enforce it, where his absence prevented service of process | 982 | |
| A suit on an executor's bond is not barred in six years from the date of a decree merely ascertaining the amount due the legatee | 506 | |
| The statute does not begin to run against defendant legatees from the date of a final decree authorizing them to file petitions to propound their claims | 506 | |
| A statute of limitation of a state in rebellion does not run during the war, as against a debt due a citizen of another state in rebellion | 384 | |
| The two-years limitation law (Act March 3, 1863, § 7), relating to acts of omission or commission during the Civil War, under authority of the president or congress, is inapplicable to assumpsit | 177 | |
| The act of defendant in compelling the indorsement and payment of a captured draft, drawn upon a citizen of a state in rebellion, held a wrong done under color of authority as a military officer, and within tie two-years limitation | 182 | |
| A sufficient acknowledgment of or promise to a third person to pay a claim will remove the bar of the statute as effectually as if made to the creditor | 982 | |
| An admission by the master of a vessel that he purchased certain supplies is not sufficient to remove the bar of the statute where he denies his personal liability | 982 | |
| The statute of limitations is not available to a respondent in admiralty unless it is pleaded | 404 | |
| 1225 | ||
| Where an action is dismissed for want of jurisdiction, a new one may be brought within one year. Gen. St Mass. c. 97, § 5. | 1036 | |
| LITERARY PROPERTY. | ||
| Defendants cannot claim hardship from an injunction after the book is printed, where they were given notice not to print | 665 | |
| MALICIOUS PROSECUTION. | ||
| Both malice and want of probable cause must be shown to support the action | 47, 761 | |
| Want of probable cause is evidence of malice | 761 | |
| A party will not be held responsible for the conduct of his counsel in acting without probable cause, if not directed by him, nor for his counsel's malice, unless he attemps unjustly to take advantage of his act | 761 | |
| A ca. sa. upon a judgment is good cause of arrest and a declaration for a malicious arrest, showing such cause, is bad on demurrer | 47 | |
| MARINE INSURANCE. | ||
| Provisions construed to make the owner a coinsurer, and to limit liability on the policy to two-fifths of loss | 48 | |
| Seaworthiness is such a state as is competent to resist the ordinary action of winds and waves in the voyage for which the vessel is insured | 643 | |
| Heavy cross seas are not the ordinary action of the sea, within the meaning of this rule, however common they may be in the voyage insured | 643 | |
| The underwriters cannot object that a certain act was concealed, when it was done in the usual course of trade | 1030 | |
| The rule requiring all matters material to the risk, known to the assured, to be disclosed, does not apply where the concealment is as to a matter covered by a warranty, express or implied | 614 | |
| Otherwise, however, as to misrepresentations as to material facts, whether in answer to questions, or voluntary | 614 | |
| A warranty of neutrality is broken by any act of commission or of omission which jeopardizes the claim to a neutral character, whether by the owner, or by his agents | 1030 | |
| A sentence of a foreign court of admiralty is not conclusive in our courts to falsify a warranty of neutrality, but is admissible as evidence | 1030 | |
| Materiality of representations as to neutrality, where premium is sufficient to cover belligerent risk | 545 | |
| If a vessel be so injured by a sea peril as not to be repairable, except at an expense exceeding its value when repaired, no abandonment is necessary | 643 | |
| The loss in such case is actually total, and the value is fixed by the valuation in the policy | 643 | |
| The letter of abandonment must state the cause of the loss, and it must appear to have been a peril insured against | 643 | |
| A policy describing a voyage as from A. to B. “or” C., and at and from thence to D., does not authorize touching at both B. and C | 614 | |
| A departure from the voyage named will not be a deviation, if shown to be a usage of the trade | 614 | |
| The burden is on the assured to prove that defects, found to exist in the hull of a vessel during the voyage, were produced by a peril of the sea | 643 | |
| MARITIME LIENS. | ||
| An action in rem cannot be maintained against a vessel for the breach of a contract in refusing to accept materials or supplies to be furnished | 960 | |
| One who furnishes supplies, repairs, or advances to a vessel in a foreign port, may elect to hold the owner, master, or vessel | 242 | |
| Material-men have a lien on the vessel for supplies furnished a foreign vessel, but not for supplies for a domestic vessel | 1067 | |
| For the purposes of a lien, every vessel is considered foreign, when in a port of a state to which she does not belong | 1067 | |
| The debt to create a lien under Laws N. Y. 1855, c. 10, must be created at the port where the vessel lies | 353 | |
| Such debt cannot be created by agreement or stipulation, but must be for services or supplies for the benefit of the vessel | 353 | |
| A maritime lien for seamen's wages, or repairs and supplies, adheres to the ship and all its parts, wherever found | 468 | |
| In disposing of the proceeds of the sale of the parts of a wrecked vessel saved by the owners, the court will order payment, First, to the seamen; and, second, to material-men | 468 | |
| As between persons having a lien upon a steamboat and persons having a lien for work in converting her into a barge, the former will be required to resort first to those portions of the old vessel on which they alone have a lien | 604 | |
| A libel for supplies furnished to a foreign vessel must allege that the owner had no funds or credit with which to procure the supplies | 351 | |
| MARSHALS. | ||
| The marshal has no right, without consent of parties, to insure, at their expense, vessel in his custody, pending disposal of case in circuit court | 745 | |
| The marshal is entitled to separate fees for service of copies of petition and order to show cause, though made at same time | 762 | |
| Fees for summoning and impanelling coroner's inquest in Alexandria county | 64 | |
| Two per cent, commissions for disbursing moneys (Rev. St. § 829) are not limited to expenses of court | 762 | |
| No allowance for the custody of property by way of commissions on its value | 762 | |
| MINISTERS. | ||
| It is the duty of the state court to quash proceedings therein in violation of the privilege of a foreign minister | 964 | |
| MORTGAGES. | ||
| A mortgage lien after condition broken will cover timber removed from the premises by the mortgagee, and the crops on entry by him | 467 | |
| Notice of foreclosure and certificate of publication must be recorded in the registry where the mortgage is recorded, though division of the county has placed the lands in another county | 770 | |
| The equity of redemption is not subject to sale on execution | 1175 | |
| Defendant will have the right to redeem from the foreclosure sale at any time within the statutory period, regardless of the provisions of the decree, and errors therein in such respect are merely matters of form | 753 | |
| MUNICIPAL CORPORATIONS. | ||
| Mandamus will issue (in Missouri) to compel levy of special tax to pay a judgment obtained against municipality | 189 | |
| 1226 | ||
| A limitation in the charter upon the general power of taxation will not defeat the remedy by mandamus to enforce payment of a judgment | 189, 284 | |
| It is the duty of a city, where mandamus has issued to compel the levy of a tax to pay a judgment, not only to make the levy, but to collect the tax, and pay it to the judgment creditor | 412 | |
| The city of Boston held not to have authority to contract to pay expenses of having previously enlisted men credited upon the city's quota | 826 | |
| The town of Southfield, Richmond county, N. Y., had no power to issue bonds under Act May 11. 1869, after passage of Act May 5, 1870 | 621 | |
| NEUTRALITY LAWS. | ||
| An augmentation of force in our ports is a breach of neutrality, and of the law of nations, and of the United States; and will occasion a restitution of the prize if brought owithin our jurisdiction | 171 | |
| NEW TRIAL. | ||
| The court in its discretion will grant a new trial because of the omission to charge on important questions of law | 1029 | |
| A new trial will be ordered where the verdict is clearly against the evidence | 988 | |
| Newly-discovered evidence to discredit a a witness, where others testified to the same point, is no ground for a new trial | 231 | |
| The proof must clearly show sufficiency of newly-discovered evidence to lead to different result | 596 | |
| The court will not give an extended argument in disposing of a motion for a new trial, where the evidence is conflicting, and the verdict satisfactory | 38 | |
| Bill of exceptions received as a substitute for a case on a motion for a new trial. | 82 | |
| OATH. | ||
| Notaries public have no power under the Revised Statutes to administer oaths in the United States circuit courts | 596 | |
| PARDON. | ||
| Property seized in confiscation proceedings, or its proceeds before order of distribution made, will be restored to the owner, upon petition setting out a pardon for the offenses charged | 435 | |
| PARTIES. | ||
| All persons who have an interest in the object to be attained by a suit in equity must be joined. Only those whose interests are in harmony should be joined as plaintiffs | 660 | |
| A corporation held a necessary party to a suit by its receiver to compel satisfaction of a decree against persons holding possession of its property as security | 124 | |
| A person may be enjoined from doing an act as proxy for a shareholder, although his principal is not joined as a party | 420 | |
| A person applying to be made a party plaintiff will be made a party defendant, if he can equally have the benefit of the suit, where making him a party plaintiff would oust the jurisdiction of the court. Equity rules 47, 48, applied | 420 | |
| The rights of different parties in trust property may be enforced in one suit, when they claim under a common source of title, and assert a joint wrong, involving the trust property | 667 | |
| Persons not parties to the original bill shown to be necessary on the cross bill brought for relief as well as defense are properly made parties | 19 | |
| A misjoinder, apparent on the face of a bill, should be taken advantage of by demurrer or answer, or it will be deemed waived | 660 | |
| The objections of multifariousness and misjoinder of parties come too late when raised by answer instead of demurrer, and not called to the court's attention until the hearing | 667 | |
| Nonjoinder or misjoinder is not ground of dismissal in equity, where the difficulty can be remedied, or where the relief sought can be given without impairing or jeopardizing the interest of any one | 660 | |
| In a case where railroad bondholders are numerous, a suit brought by or against some in behalf of all will be binding on all. The parties who are not named may intervene | 1178 | |
| Complainants allowed to dispense with parties on account of their numerousness cannot take advantage of the neglect of defendants, to the prejudice of those not named | 1178 | |
| PARTITION. | ||
| A partition between a tenant in tail of an undivided half of land, and a tenant in fee of the other half, is binding only during the life of the former | 930 | |
| PARTNERSHIP. | ||
| One representing himself as a partner, or permitting others to do so, is responsible as such, although he may have no interest in the firm | 561, 562 | |
| The intended misapplication of the proceeds of a note drawn by a partner in the firm name, apparently in the course of the partnership business, will not affect the rights of a bona fide holder | 882 | |
| A bona fide transfer of partnership effects by one member of the partnership to another vests the title in the transferee as his separate estate | 951 | |
| A partnership settlement will not be disturbed at the suit of an executor of a partner, in the absence of error clearly shown, or fraud | 521 | |
| PATENTS. | ||
| Patentability. | ||
| See, also, infra, subtitle “Infringement—What Constitutes.” | ||
| A patent is not anticipated by prior patents, whose specifications contain nothing to aid a mechanic to construct the patented article | 1005 | |
| To establish a diversity between a patented device and another, long known to the trade, it is not sufficient to rely upon a description of the result obtained | 826 | |
| The result produced is not patentable | 801 | |
| To defeat a patent, the construction by another must have preceded the actual invention of the patentee; not merely the issuance of the patent | 202 | |
| New contrivances applied to old purposes are patentable, but not old contrivances applied to new uses, unless there is a change, consisting of a new and useful combination, a material alteration or modification, or an addition of a new device, in which case the new device must be distinguished in the claim | 38, 377 | |
| The new combination may be of old elements | 550 | |
| 1227 | ||
| A new combination, to be valid, must be different from the old one, not only in its mechanical contrivance and construction, but in its practical operation and effect in producing the useful result | 550 | |
| A prior machine for discharging seed in horizontal planes will not anticipate a machine for sowing seed in vertical planes, if it required invention to make modifications in the former to adapt it to the latter form | 1011 | |
| Difference in size and proportion of devices or machines, so long as the construction, principles, and mode of operation are the same, is entirely immaterial | 1011 | |
| Machine for rolling puddler's balls held not anticipated by machine for making bullets and milling buttons and coins | 711 | |
| A combination of a sheath with a fixed knife in the same cylinder, and one of a springing knife with a sheath in the same or opposite cylinder, held not equivalents | 659 | |
| Cam movements, producing simultaneous operations in long use, cover the principle of raising an oven shelf by means of closing the oven door | 94 | |
| Who may obtain patent. | ||
| Models made and used for experimental purposes, and not available otherwise, will not affect the right of a subsequent inventor | 1011 | |
| Machines previously constructed, but never made public, and used only as private experiments, and then broken up, will not affect the right of a subsequent inventor, who had no knowledge thereof | 1011 | |
| As between an inventor, unsuccessfully experimenting with the invention, and one who, with knowledge thereof, perfects the process and operation, the former is the prior inventor | 846 | |
| Prior invention defeats the application for a patent, and may be shown on interference, though the prior inventor failed to avail himself of his invention in a patent subsequently procured by him | 751 | |
| Prior description or foreign invention. | ||
| Prior construction or a description in a public work will invalidate a patent | 275 | |
| The invention in a foreign country, or description in a public work, to defeat a patent, must be in principle the same | 247 | |
| The words “patented abroad” (Act 1836, §§ 7, 15) do not apply to the French private patents | 294 | |
| An English patent does not exist (Kev. St. §§ 4886, 4920, 4923) until the enrollment or sealing of the complete specification | 294 | |
| Prior public use or sale. | ||
| The presumption is in favor of the patent, where it is doubtful whether there was public use for more than two years prior to the application | 437 | |
| Application and issue. | ||
| A claim cannot be made in the alternative | 437, 825 | |
| The specifications for an improvement must distinguish the new from the old | 275, 429 | |
| The thing invented must be so described as to be distinguished and known | 275 | |
| The specifications must be so clear, but need be only so clear, as to enable a person acquainted with the structure of such a machine to build one | 247, 1071 | |
| The specifications need not give a particular description of the machine improved | 247 | |
| It need not be stated whether certain parts of the machine should be made of wood or metal | 247 | |
| The inventor may show the successful operation of his invention by another, though the improvement described in the specification will not produce the result | 846 | |
| Complainant's patent is valid for such of the several improvements claimed as are not shown to have been first invented by another | 1011 | |
| A claim for a particular means and mode of operation described extends to all equivalents | 701 | |
| A patent for a new and useful process, describing it and the apparatus by which it can be carried out, covers all apparatus which will accomplish the same purpose in substantially the same way | 89 | |
| The import of the summary of a specification is to be determined by reference to the specification as a whole | 510 | |
| The claim must be construed as favorably to the patentee as the language of the claim, the state of the art, and the extent and character of his actual invention will allow | 701 | |
| The absence of the word “combination,” or of a statement of its elements in a particular claim, while combinations are claimed in apt and appropriate language in other claims, is strong evidence that, in the former, the patentee did not intend to claim a combination | 701 | |
| Sufficiency of specification. Act 1836, c. 357, § 2 | 846 | |
| The question of fraud arising on interference must be tried by a jury | 751 | |
| A patent for a machine for rolling puddler's balls held to be for a process | *711 | |
| Appeals from commissioner's decisions. | ||
| The decision of the commissioner as to patentability is not conclusive | 845 | |
| The jurisdiction of the court is confined to the reasons of appeal | 751 | |
| Reissue: Disclaimer. | ||
| The commissioner's decision is not conclusive as to his own jurisdiction | 997 | |
| On application for a reissue the commissioner cannot hear evidence to determine the invention and enlarge the original claim | 997 | |
| A reissue can only be for the invention originally made and intended to be described or claimed and included in the original patent | 429 | |
| The patentee may redescribe what was defectively set out, suggested, or indicated in the drawings or specifications which properly belonged to the invention | 997 | |
| If it appear on the face of the two patents by comparison that the reissue is for a different invention from the original, the reissue is void | 997 | |
| A patentee can claim whatever clearly appears to have been a part of his original invention as then shown or described, either by his drawings, specifications, or models | 1071 | |
| Where new claims in reissue are so interwoven with the elements specified in the original that they cannot be separated the patent is entirely void | 997 | |
| All rights under the original patent cease upon its surrender, except as they are secured by a reissue | 392 | |
| In making a disclaimer of a part of an invention claimed, through the mistake of the person making it, he must state his interest in the patent | 275 | |
| A reissue is not conclusive upon the question whether it is for the same invention as the original | 89, 997 | |
| A patent is not rendered void as to certain valid claims because of unreasonable neglect or delay to enter a disclaimer as to invalid claims | 712 | |
| Patentee held entitled to recover as to certain claims, without costs, although he failed before suit brought to file disclaimers as to another | 712 | |
| The patentee must, within a reasonable time, disclaim all parts not properly claimed | 275 | |
| 1228 | ||
| Whether a disclaimer has been made within a reasonable time is a mixed question of law and fact | 275 | |
| The defense of unreasonable delay to file a disclaimer cannot be made unless set up in the answer | 701 | |
| Seven years' delay to obtain a reissue held fatal | 1131 | |
| A reissue does not inure to the benefit of a prior assignee. He takes by ratification, not by inurement | 695 | |
| Extension: Renewal. | ||
| The administrator of a deceased patentee may apply for and obtain a renewal in his own name | 247, 275 | |
| The proceedings of a board granting the renewal of a patent need not be stated at length | 275 | |
| The functions of the board are in their nature judicial | 275 | |
| The judgment of the board granting a renewal to an administrator is not conclusive as to his right, as such, to a renewal | 247 | |
| Proof of fraud in obtaining extension—when sufficient to defeat the patent | 275 | |
| Assignment. | ||
| An administrator of a patentee may assign a patent renewed in his own name | 275 | |
| An assignment of a patent to an assignee in trust gives him the legal title | 1168 | |
| A sale of the right to use and sell “Singer's patent sewing machines, as mentioned in the patent granted to S., Aug. 12, 1851,” held an assignment of all the rights which the vendor had in the Singer machine under any patent | 695 | |
| A patentee who grants territorially exclusive monopolies may himself be treated as a trespasser if he interferes | 806 | |
| A recording after the three months is sufficient to pass title except as to intermediate bona fide purchasers without notice | 261 | |
| The assignees' interest expires with the original patent, unless the assignment expressly gives the right in the extended or renewed patent. Act 1836 | 247, 253 | |
| Licenses. | ||
| The patentee may license the use of his machine for a royalty or annuity | 806 | |
| A sale of the machines licensed, and the purchase of another, is not a matter within the license | 305 | |
| A license until conditions performed is inoperative | 302 | |
| A license to a person to run “either of his two machines, provided he does not run more than one of them at a time,” held not limited to the machines then in use | 305 | |
| A license merely of use, being property, may be conveyed | 305 | |
| The failure of a licensee to pay license fees weekly, as provided in the license, held not an abandonment | 302 | |
| Failure to make returns and pay certain royalties, under contract granting an exclusive right, held not to justify revocation at will, though sufficient to justify court of equity in rescinding it | 695 | |
| A contract granting the right of manufacturing and selling a patented article held a license, and need not be recorded | 261 | |
| No apportionment or division of a license or privilege can be made, if it be contrary to the true intent of the parties thereto | 261 | |
| A license to a person, with privilege to employ a certain number of persons, and no more, in the manufacture of a patented article, cannot be assigned in part | 261 | |
| Quaere, if a license is not such a personal privilege that the entirety cannot be assigned, notwithstanding it was given to one and his assigns | 261 | |
| A licensee may sue in his own name to enjoin infringement of his rights under the license | 11 | |
| A sale of a machine by a person who has a license merely of use does not give an implied right to use it | 305 | |
| A contract between a patentee and one granted an exclusive right that no suit for infringement should be instituted without the consent of both parties, does not prevent the latter making a bona fide settlement with an infringer, binding upon the former | 695 | |
| Infringement—What constitutes. See, also, infra, subtitle “Patentability.” |
||
| A machine which is not the same in principle is not an infringement | 275 | |
| If two machines do the same work, by substantially the same means, in substantially the same way, and accomplish substantially the same result, they are the same | 275, 1011 | |
| A difference in form, or proportions only, makes no difference in the principles of the machines | 247 | |
| Changing the position of a machine does not alter its principle | 275 | |
| The nominal elimination of a part whose office is performed by something else, under a different name, will not prevent the machine from being an infringement | 294 | |
| The use of an equivalent is not an infringement if such equivalent is expressly disclaimed | 938 | |
| An equivalent device is such as a mechanic of ordinary skill could substitute without the exercise of the inventive faculties | 701 | |
| There is no infringement where the two contrivances do not perform the same function, by the same means, and one cannot be used in place of the other | 427 | |
| An improvement of a patented machine by the use of a substantially different device, or a substantially different combination of parts, though capable of performing the same functions, is not an infringement | 701 | |
| It is no infringement of a patent for a combination to use any one or all of the parts in an essentially different combination | 935 | |
| To establish an infringement of a combined machine, all the parts which form the combination must be imitated | 255, 275 | |
| A device for making extract from tan bark by the use of exhaust steam held not infringed by a device for using steam direct from a boiler | 92 | |
| The use of a patented machine under a license, whose conditions are not performed, is an infringement, and its use will be enjoined | 302 | |
| The use by a foreign vessel, in its structure or equipment, of an improvement for which a patent has been obtained in the United States, while temporarily within its jurisdiction for purposes of commerce, is not an infringement | 369 | |
| The making and selling of the separate materials for a patented combination is not an infringement | 938 | |
| The sale of dials, to be used with an infringing time detector, for which defendant has accounted, is not an infringement | 597 | |
| A sale of the infringing article to one employed by the patentee to make the purchase for the purpose of securing evidence of infringement will not support an action for damages | 934 | |
| Mechanism for marking dial paper by forcing points upward from below held equivalent to device for marking it by pressing points downward on surface | 593, 598 | |
| ———Who liable. | ||
| Use of an invention as an officer of the government, in the performance of his duties, for its benefit, will not prevent the user being liable as an infringer | 1168 | |
| 1229 | ||
| Injunction will lie against agent selling infringement for manufacturer | 546 | |
| One who manufactures the patented thing without right or license, though employed by another, is an infringer | 521 | |
| Only nominal damages should be given in such case, where the manufacturer acted without knowledge of the patent | 521 | |
| ———Preliminary injunction. | ||
| Not granted where defendant, at the time of filing the bill, had parted with all interest in the infringing machine | 11 | |
| Neither the question of novelty nor that of infringement justifies a preliminary injunction until full hearing has been had | 825 | |
| Chancery will not decree an injunction before the right is established at law, unless it is clear | 255, 750 | |
| A patentee in exclusive possession of long duration need not previously establish his right at law | 392, 546 | |
| Verdict for plaintiff in suits against other parties is a controlling consideration, if the infringing machines are substantially similar | 821 | |
| Affidavits may be read on both sides as to facts unconnected with the title | 247 | |
| An answer to an injunction bill, though filed without a rule, will be treated as an answer, on a motion to grant or continue an injunction | 247 | |
| ———Procedure. | ||
| Trustees of a license to use a patent may sue to restrain infringement within their territory without joining the cestuis que trustent | 510 | |
| The assignee of a patent right, in part, can, in law or equity, sustain a suit for a violation of the patent, without uniting the patentee | 247 | |
| A person interested in a patent, though not within the particular district in which the suit to restrain infringement is brought, may be made a party to the bill | 546 | |
| A plea to an answer setting up a license, that defendant has abandoned the license, must state the acts showing the abandonment | 305 | |
| A replication to the answer, merely traversing the license, would not lay a foundation for evidence of abandonment | 305 | |
| The question whether the licensee has abandoned his license can only be brought up by amendment to the bill. Equity Rule 45 | 305 | |
| The objection that the answer, raising the defense for want of novelty, fails to specify time, place, etc., if not taken when the testimony is introduced, is waived, and defendant will be allowed to amend to conform to his proofs | 377 | |
| A notice of special matter may be filed or served in term time, but must be filed 30 days before trial | 487 | |
| The awarding of an issue at law on the question of infringement is in the sound discretion of the court | 294 | |
| An issue at law will be directed where the testimony is conflicting | 255 | |
| The construction of the patent is for the court | 1011 | |
| It is a question of law whether the thing invented is sufficiently described | 275 | |
| Letters patent offered in evidence in the trial of feigned issues to show want of originality in the complainants' invention must be construed by the court; and, if having no tendency to support the issue, should be rejected | 1011 | |
| Where witnesses differ on the fact of an infringement, the matter should be submitted to a jury | 247 | |
| To determine infringement the two machines must be compared, in the light of their devices, and their process and product, inquiry being directed to the essential parts | 1011 | |
| Although respondent is a competent witness in the trial of feigned issues, still he cannot be asked any question by the defense calling for testimony which contradicts his answer | 1011 | |
| Further time to take testimony given where feigned issues out of equity have been ordered before the time for taking testimony had expired | 1011 | |
| ———Evidence. | ||
| A patent is prima facie evidence that the patentee was the first inventor | 202, 275 | |
| The opinions of experts, or persons skilled in the structure of machines, is evidence | 275 | |
| If in describing the invention, technical terms be used, peculiar to mechanics, evidence may be given as to the import of such terms, and a jury must decide | 275 | |
| Original letters patent are not admissible on trial of feigned issues presenting no issue of fraud or mistake, where the bill of complaint was founded exclusively upon the reissued letters | 1011 | |
| Copies from the records of the patent office of assignments are evidence | 275 | |
| A transcript from the patent office may be corrected by another duly certified | 275 | |
| Copies of the specifications and drawings are not alone sufficient evidence to prove a patent | 294 | |
| Evidence of new experiments upon the machines in question, on the trial of feigned issues, in a patent suit, cannot be offered by the complainant in rebuttal | 1011 | |
| ———Bond for damages, etc. | ||
| Defendants will not be compelled to give bond nor to file periodic accounts until complainant's rights and the validity of the patent are established at law | 510 | |
| ———Decree, generally. | ||
| Jurisdiction being acquired, on the ground of infringement, the court may set-tie other matters between the parties in the case, which do not afford original ground of jurisdiction | 302 | |
| A decision that no infringement had been committed held necessarily binding in a subsequent suit on a reissue patent for infringement by use of the same device | 1131 | |
| A clear case of infringement by a patented article is necessary before the court will consider it as covered by a decree in another suit in which its structure had not been under consideration | 597 | |
| ———Accounting: Damages. | ||
| A decree for an accounting will be granted, though it appear that no profits resulted from the infringement, where it does not appear whether or not complainant suffered damage therefrom | 659 | |
| Damages are given for the use of the infringing article only subsequent to the issuance of the patent | 202 | |
| Only actual damages are given, and they are determined by the ordinary profit derived by the patentee from the sale of the article containing the invention infringed | 550 | |
| Damages not estimated solely by the profits which defendant actually realized, for he may have conducted his business unskillfully | 1157 | |
| The true question is, what advantage might defendant, by skill, have obtained by using the patented device, instead of the old device | 1157 | |
| The price for which territorial rights were sold is no criterion by which to determine the damages | 1157 | |
| Damages must be limited to the value of plaintiffs patented improvement, in connection with the other elements of the machine in question | 695 | |
| 1230 | ||
| Plaintiff is entitled only to nominal damages, where he fails to show the proportion contributed to the machine in question by his improvement | 695 | |
| A contract by the owner of a territorial right, giving an agent power to sell without limit, will prevent his recovery of damages on the principle of profits, regardless of his declaration of intention to make a close monopoly | 695 | |
| Nominal damages only can be recovered where plaintiff, not being entitled to damages on the principle of profits, fails to prove a license price | 695 | |
| Amount of defendant's profits, he not being a wilful infringer, held adequate compensation | 594 | |
| The power to increase actual damages should be exercised only to remunerate parties in cases of wanton and persistent infringement | 202 | |
| Infringement—Injunction. | ||
| A court of equity may in a proper case grant a permanent injunction upon a final hearing, though there has been no trial at law | 529 | |
| The fact that after suit brought defendant stopped using the infringing device, where he did not disclaim the right to it, is not a reason why a decree for an injunction should not be granted | 659 | |
| ———Violation of injunction. | ||
| It is a matter of discretion whether the court on motion for attachment for contempt in violating an injunction will require expert testimony as to the infringement | 718 | |
| Evidence is inadmissible to vary the construction given by the court to a patent on a motion for attachment for contempt for violating the injunction | 718 | |
| A bond acknowledging the validity of a patent reciting an infringement held no evidence of breach of injunction subsequently granted | 935 | |
| The decision on motion for attachment was made without prejudice to the raising of the same question of infringement on the accounting under the interlocutory decree | 718 | |
| “Various particular inventions and patents. | ||
| Augers. Reissue No. 5,624, for an improvement in machinery for manufacturing curved or gauge-lip augers, construed, and held valid | 470 | |
| Cooking stoves. Patent for raising oven shelf by closing oven door held not to cover nil methods of raising the shelf by closing the door | 94 | |
| Cooking stoves. No. 1,157, to Buck for improvement, construed, and held valid and infringed | 547, 550 | |
| Cultivators. Reissue No. 3.932, for improvement in, held valid and infringed | 1071 | |
| Dam. No. 80,492, for improved portable and adjustable stillwater dam, construed, and held not infringed | 1133 | |
| Door mat No. 19,347, for cellular India-rubber door mat, construed, and held not infringed | 427 | |
| Fire gong. Reissue No. 6,831, for combination with fire-alarm gong, of attachment automatically releasing horses from stalls, held infringed | 7 | |
| Gutters. Reissue No. 6,675, for machine for making, held not infringed | 605 | |
| Hand cars. Reissue No. 500,274, for improvement, construed to cover combinations only, and not infringed by machine omitting an essential part | 392 | |
| Hats. No. 4,472 to Wells, and reissues to Burr and others, for improvement in making and hardening bats of wool, or fur for hat bodies, construed, and held valid, but not infringed | 801, 806 | |
| Such patent held infringed | 821 | |
| Hayrakes. No. 21.712, for improvement in, construed and held valid and infringed | 437 | |
| Horseshoes. No. 17,665, for improved machine for making, construed | 701 | |
| Leather dressing. No. 82,925, for improved bronze dressing, held valid and infringed | 1003, 1005 | |
| Matches. Phillips' patent of 1836, for improvement, held valid | 510 | |
| Musical instruments. Reissue No. 484, for improvement in reed musical instrument, held void, as broader than original | 997 | |
| Paper pulp. No. 17,387 to Mellier, for improvement in manufacture, construed, and held valid and infringed | 529 | |
| Planing machine. Patent granted to Woodworth held valid | 275 | |
| Reed organs. No. 87,241, for improvement, held valid and infringed | *712, 718 | |
| Reservoir cooking stoves. Reissue No. 5,435, for improvements, construed and held infringed | 886 | |
| Seed planters. Reissues Nos. 1,036–1,040 and 1,091–1,095 held invalid for want of novelty of invention | *429 | |
| Shade rollers. No. 11,638, for improvement in spring rollers, held valid and infringed | 38 | |
| Stamps. Reissue division A, No. 4,143, for an improvement in post-office postmarking and cancelling hand stamps, held valid | *1168 | |
| Tan bark. Reissue No. 1,922, for improved process of extracting, held invalid | 89 | |
| Such patent held not infringed | 92 | |
| Watchmen's time detectors. No. 48,048, for improvement in, held valid and infringed | 593 | |
| Watchmen's time detectors. No. 40,048 and reissue No. 3,869, for improvement in, held valid and infringed | 598 | |
| White oxide of zinc. Burrow's invention, of furnace for producing, held to have been anticipated by Wetherill's | 845 | |
| PAYMENT. | ||
| A debt is discharged by the taking of a bill of exchange in payment, or in such manner as imports an intention to take the risk of the bill | 402 | |
| Evidence of an agreement to accept, in satisfaction of the debt, collaterals held by the creditor, held insufficient | 384 | |
| A person indebted in a certain sum of British sterling gave a bond for the amount in sterling generally, payable in Ireland. Held to be construed British sterling, but to carry Irish interest | 884 | |
| The presumption of payment of a mortgage debt arising after the lapse of 50 years, the original securities not being produced, and the mortgagor being in possession, is rebutted by proof that the mortgage debt has not been paid | 770 | |
| PERJURY. | ||
| Perjury committed during judicial investigation, conducted under authority of congress, is an offense against the public justice of the United States, and is exclusively cognizable in their courts | 98 | |
| A state statute, punishing false swearing in “judicial proceedings,” held applicable only to such proceedings under the state laws | 98 | |
| PILOTS. | ||
| A pilot commissioner cannot authorize another member of the board to sign his name to a license | 1055 | |
| 1231 | ||
| Act providing that pilot commissioners “may” appoint a secretary held to be mandatory | 1055 | |
| Neither in nor out hound vessels are, by the laws of Massachusetts, positively hound to employ a pilot | 1141 | |
| The master may interfere in case of gross ignorance or palpable and dangerous mistake by the licensed pilot in charge | 1141 | |
| Persons injured in a collision with a vessel in charge of a licensed pilot are entitled to have their remedy against the vessel | 1141 | |
| A pilot's license, when prima facie evidence of the facts recited therein | 1055 | |
| A claim for half pilotage, given by state law for services tendered and refused, is a lien enforceable in admiralty | 1052 | |
| PLEADING AT LAW. | ||
| The jurisdiction of the court is not'affected by the venue laid, or a wrong one, or by the entire omission to lay one | 996 | |
| The declaration on a promissory note in a suit in the federal court in New York, drawn under the Code of Procedure, held bad on general demurrer, as a claim of damages is necessary in assumpsit | 459 | |
| A plea of misnomer, in abatement, is too late after the expiration of the rule to plead | 242 | |
| After a cause has been at issue 18 months, leave will not be given to plead non est factum without affidavit denying execution of the bond in suit | 659 | |
| A plea of a foreign judgment must either contain an allegation of jurisdiction, or set out sufficient of the proceedings to show it. | 778 | |
| A replication may set up the title of the equitable plaintiff, and notice thereof to the defendant, and thus show the asserted bar to be in fraud of such rights | 379 | |
| A replication which alleges two distinct and independent facts, either of which is a complete answer to the plea, is double, and is bad on special demurrer | 778 | |
| A plea in abatement for variance, in that the writ did not state citizenship of the parties, whereas the declaration did, is frivolous, and will be stricken out on motion | 839 | |
| A special demurrer may be filed in all actions in the courts of the United States. 1 Stat 91 | 996 | |
| A demurrer that “the several pleas” are insufficient will be overruled, if there be one good plea in the record | 369 | |
| The words “state aforesaid,” in the body of the declaration, held to refer to the state or venue in the margin, and not those mentioned in the body | 996 | |
| A party accepting and pleading a pardon in a judicial proceeding admits that he is bound by the conditions mentioned therein | 435 | |
| Defendant may show, under the general issue, that the plaintiff is one of a firm which is indebted to him, in the same transaction, in a larger sum than that demanded | 561 | |
| A former judgment is not pleaded with a profert, but a profert is tendered in reply to the plea or replication of nul tiel record | 778 | |
| Oyer cannot be demanded where profert not made | 1184 | |
| Declaration amended as of course at trial by suggesting proceeding by two non ests against a joint defendant not taken | 242 | |
| An amendment to a plea, when not affecting the vital question on which the defense is based, should be allowed after commission issued | 538 | |
| At common law an amendment might be made while the proceedings were in paper | 489 | |
| Amendments in England, under their statutes, constitute no rule for the courts in this country | 489 | |
| PLEADING IN ADMIRALTY. | ||
| An allegation that a certain sum loaned by the master on a security of the first earnings of the vessel is still due and unpaid will dispense with an allegation that it has not been paid out of the earnings | 360 | |
| If the response in a general answer is not full, explicit, and distinct, exceptions for insufficiency lie to compel a sufficient answer | 1052 | |
| No exceptions will lie to an answer responsive to the libel, on the ground that it is not a defense to the suit, whether the matter is impertinent or not | 1052 | |
| Matter intended as a defensive allegation should not be blended with the response or answer to an allegation of the libel | 1052 | |
| The libelants and respondents must recover and defend on their respective allegations and averments. 1199. But see | 1118 | |
| The action of the court in respect to amendments is not reviewable on appeal | 360 | |
| PLEADING IN EQUITY. | ||
| A cross bill is properly filed to establish an equitable title to letters patent, the legal title to which is in the plaintiff in the original bill for an infringement | 19 | |
| A plea to a bill for the removal of trustees, that the acts alleged were done by them in other capacities, under the direction of a state court, held bad | 308 | |
| An answer that defendant “had no knowledge, information, and belief that the charge was not true,” is insufficient to an interrogatory “as to his knowledge, remembrance, information, and belief” | 258 | |
| Want of knowledge of allegations as to which defendant's knowledge, if any, must be direct and personal, must be directly stated. A denial upon information and belief does not raise an issue | 788 | |
| A corporation is not excepted from such rule | 788 | |
| A statement in an answer tiiat defendant has no knowledge that the fact is as stated is insufficient, either as an admission or denial | 258 | |
| Defendant must either call for proof or admit or waive all controversy as to facts stated in the bill to which he is interrogated | 258 | |
| An exception to an answer should state the charges, the interrogatory, and the terms of the answer, verbatim | 258 | |
| A demurrer to the whole bill setting up that some of the relief prayed is not cognizable in equity will be overruled, if some of the relief is properly prayed | 19 | |
| A demurrer to a bill, which contains allegations of fraud, and strong circumstances of equity, must be overruled, and defendant compelled to answer the fraud | 785 | |
| It is no ground of demurrer to a cross bill that a state court had acquired prior jurisdiction of the subject-matter on bill brought by the plaintiff in the cross bill | 19 | |
| In equity, as at law, the proof must correspond with the allegations in the pleadings. | 305 | |
| Defendant will not be permitted to amend his answer, after the opinion of the court and the testimony have indicated in what respect it may be modified so as to effect his purpose | 1082 | |
| POWERS. | ||
| A power of attorney, to indorse notes in the principal's name, confines the authority to notes of the principal, or those in which he is interested | 890 | |
| 1232 | ||
| An authority to one cannot be assigned in part to be executed by another | 262 | |
| The authority conferred by a power of attorney is suspended by the subsequent' insanity of the person who gave the power | 600 | |
| PRACTICE AT LAW. | ||
| If the defendant on the plea day demana oyer which is not given until the subsequent term, the court will give the defendant time to plead after oyer | 1084 | |
| A motion to produce a paper necessary to enable defendants to plead may be granted without a preliminary notice to produce | 220 | |
| Proof of the existence of a paper, its pertinency to the issue, and its possession, is necessary before an order will be issued requiring its production | 590 | |
| A defendant cannot have a judgment non obstante veredicto; his remedy is a motion in arrest | 379 | |
| PRACTICE IN ADMIRALTY. | ||
| It is not a valid objection that proceedings were brought in the firm name by the surviving partner, if he is the real party in interest | 955 | |
| After a decision for libelants in rem for freight and demurrage, it cannot be objected that freight has been found due libelants in a pending suit in personam | 242 | |
| Exceptions in admiralty, nature and office of, defined | 1052 | |
| The justness of a decree on libel for collision, in which a reference to a commissioner to ascertain the damage has been directed, cannot be tested on exceptions to the commissioner's report | 865 | |
| Nor can the credibility and reliability of the witnesses on the reference be investigated on such exceptions, unless the objections rest wholly on questions of law | 865 | |
| A deposition, entitled in the district court, but not received by the clerk until after the trial there, and not sent up as a part of the record of that court, cannot be read on appeal | 560 | |
| The surety in a suit in personam cannot be compelled to pay more than the sum stated, although the stipulation is conditioned to pay such sum as shall be awarded, by the final decree | 360 | |
| A stipulation to abide the decision of a suit by another party will not prevent the successful claimant recovering costs, because not given in the suit prosecuted, against an administratrix substituted as libelant | 603 | |
| PRACTICE IN EQUITY. | ||
| A verdict on an issue at law directed by a court of chancery has the same effect as a verdict on conflicting evidence in an action at law | 255 | |
| Plaintiff will not be allowed to file replication and take testimony on payment of costs, after dismissal of bill after hearing on bill and answer, where no mistake or inadvertence is suggested | 648 | |
| An objection to evidence attacking a deed of confirmation set up in the answer in defense of a bill to set aside a conveyance for fraud, on the ground that its validity' was not put in issue, is too late when first taken at the hearing | 667 | |
| An account will not be referred back before argument of exceptions because of the discovery of new evidence | 1085 | |
| Practice as to taking testimony in equity causes, under section 30 of the judiciary act, and rules 67 and 68 | 223 | |
| Practice as to taking of testimony where the state constitution provides that testimony in equity causes shall be taken in the same manner as at law | 223 | |
| Complainant held not limited in time for filing exceptions to answer, where rule to reply not left with the clerk | 66 | |
| PRINCIPAL AND AGENT. | ||
| An agent of rebel owners of vessel insured their interests, and collected the loss during the war. Held, that he was liable to account to them after peace declared | 1036 | |
| The principal is liable for the acts of a firm as agent, where it recognized the firm as agent, though only one of its members was originally appointed agent | 834 | |
| PRINCIPAL AND SURETY. | ||
| A creditor may enforce application to the payment of his debt of security given as indemnity to a surety | 15, 836 | |
| PRIZE. | ||
| A cruise begins and ends in the country to which the ship belongs, and from which she derives her commission, when it is not otherwise specially agreed | 490 | |
| A cruise begins when the ship breaks ground for the purpose of sailing | 490 | |
| When the term of a cruise once begins to run, it is not suspended by any intermediate accident or casualty happening in the course of the cruise | 490 | |
| Cruise of privateer, held not broken up in a foreign port into which the vessel went for repairs, though the term for which the crew shipped expired while in such port, and new articles were entered into | 490 | |
| Expenses of crew of prize vessel, who are not needed or used as witnesses, incurred after arrival in port, are not chargeable upon the proceeds | 164 | |
| French privateers protected in bringing prizes into American ports, though such privateers were originally American vessels. Treaty Feb. 6, 1778, art. 17 | 169 | |
| On recapture, owners held entitled to damages out of goods put on board by privateers | 171 | |
| Vessel and cargo condemned for an attempt to violate a blockade | 174 | |
| PUBLIC LANDS. | ||
| The land is not subject to a sale for taxes by the state until the legal title passes by the issuing of a patent | 221 | |
| The land is not taxable by a state during the suspension of a location, under a warrant cancelled for fraud | 221 | |
| The assignee of a land warrant, fraudulently procured from the government, has no higher legal rights than the warrantee. | 221 | |
| Proper boundaries of purchase where surveys were run at different times | 585 | |
| QUIETING TITLE. | ||
| Complainant, in a suit to determine an adverse claim to land, can only obtain relief upon the grounds alleged in his bill. Code Civ. Proc. Cal. § 738 | 867 | |
| QUI TAM AND PENAL ACTIONS. | ||
| The complaint in an action by a private person must allege plaintiffs' right to sue | 152 | |
| 1233 | ||
| The complaint, in an action for a statutory penalty, must state that the act or omission alleged was contrary to the statute | 152 | |
| RAILROAD COMPANIES. | ||
| A railroad company may engage in an express business which requires the use of horse power to collect and deliver parcels | 1089 | |
| The railroad company cannot monopolize such business, or give any preferential facilities to itself or others, either as to rates, rebates, or facilities for receiving or carrying parcels | 1089 | |
| The charges by a railroad company for such accessorial service with horse power cannot be imposed upon any of the public who decline to use it | 1089 | |
| Although there is no limit of rate charges in its charter, the company can only charge a reasonable rate, dependent upon the nature of the goods, etc | 1089 | |
| The question of the reasonableness of a freight charge is for the jury | 1089 | |
| A railroad company cannot make the same charge for a package made up of separate parcels of goods owned by different persons, but consigned to one person as the aggregate of the separate parcels | 1089 | |
| A railroad engaged in the express business cannot extend to itself a privilege as to rates on unpacked parcels not extended to a competing express company | 1089 | |
| The Burlington & Southwestern Railroad Company, an Iowa corporation, held liable to taxation in Missouri, in which its road was extended by special acts upon its road, and property therein | 757 | |
| The charter of a railroad company held to authorize its purchase of another railroad, or its sale to another company | 12 | |
| A lien for the purchase price of a railroad of persons accepting preferred stock held to be lost by delay and acquiescence in the sale | 12 | |
| Where an animal is a trespasser on the track, the court will presume ordinary care in the management and operation of the train, in the absence of evidence to the contrary | 1184 | |
| Power to sell includes power to mortgage, and the franchises necessary to use and enjoy the road, not including, however, the franchise of being a corporation | 12 | |
| A railroad lying within the chartered limits of another company, by which it is purchased, becomes subject to a mortgage by the latter upon its line of road, completed iind to be completed, but not to the prejudice of prior mortgages | 12 | |
| Change of manner of procuring loan by legislative consent held not to affect right reserved to make mortgage therefor superior to a prior mortgage | 1188 | |
| A general mortgage of a railroad does not pass after-acquired lands, unless used in connection with the actual operations of the road as a part thereof | 1046 | |
| Sufficiency of description to pass after-acquired property | 1046 | |
| Where the bondholders are numerous, it is not necessary to make all of them parties to a suit, or to make any of them parties, if their trustees under the mortgages are parties | 1178 | |
| Bondholders aggrieved by a decree in a suit to which they were not made parties may apply for relief, or institute such other proceedings as a party to the suit might institute | 1178 | |
| All the holders of railway bonds need not be made parties to a bill of foreclosure by the trustees of the mortgage securing them, or of a prior mortgage | 1178 | |
| All questions of priorities should be determined before sale | 1188 | |
| Specific property should be sold separately to give specific incumbrancers an opportunity to protect their securities | 1188 | |
| REAL PROPERTY. | ||
| See, also, “Ejectment” | ||
| In actions for mesne profits, the measure of damages is the fair rental value of the property; if that cannot be ascertained, then the fair actual value while in defendant's possession will govern | 1158 | |
| No recovery can be had for profits accruing after the commencement of the action for mesne profits | 1158 | |
| In a suit for an” account of rents and profits after a recovery at law, the court will allow a recoupment of the value of permanent improvements made by a bona fide purchaser for a valuable consideration | 127, 134 | |
| Title to lands of the town of Matamoras, Tex | 460 | |
| REMOVAL OF CAUSES. | ||
| An alien, complying with the provisions of the judiciary act of 1789, cannot be deprived of his right of removal under section 12 | 450 | |
| An action for slanderous words spoken by a United States collector of customs, while in the discharge of his official duty, and explanatory of it, is removable. Act March 2, 1833 | 926 | |
| A case cannot be removed after final judgment in the court of original jurisdiction where it is brought, though the party is entitled on appeal to a trial de novo. Act March 2, 1867 | 87 | |
| All the statutory requirements authorizing the transfer of causes must be complied with to dislodge the jurisdiction of the state court | 721 | |
| The condition in the bond that plaintiff shall file in the circuit court “copies of all process” renders the bond insufficient | 721 | |
| A removal bond (Act March 3, 1875) in which the place where the penal sum should have been inserted is left blank is insufficient | 721 | |
| The averment of citizenship or alienage of defendant need not appear on any one of the papers transmitted with the order of the state court | 450 | |
| A failure to file a copy of the record on the first day of the next session of the court will prevent a removal, though the state court, before such time, vacated its order of removal | 192 | |
| The cause will be remanded where the removing party fails to file a copy of the record on the first day of the next session of the court after petition filed | 136 | |
| A cause will not be remanded, if one proper for removal under the statute in force at the time the motion is made, though the removal was not authorized by lie statute under which the petition was filed | 768 | |
| REPLEVIN. | ||
| Property distrained under authority of the revenue laws is not repleviable | 85 | |
| Vouchers or documents filed with the treasury department to justify the settlement of a public account cannot be replevied | 63 | |
| Property taken from the possession of a person, on suspicion of its being stolen, by a constable having a warrant to arrest him for forgery, is not in custodia legis | 61 | |
| 1234 | ||
| Upon the issue of non cepit, plaintiff must prove that defendant took the property from his possession | 1084 | |
| To recover on a replevin bond, where there has been no judgment for a return of the property, plaintiff must show damages by the failure to prosecute the writ with effect | 691 | |
| REVIEW. | ||
| A bill of review will not lie for errors on the face of the record in a foreclosure suit, brought after time has expired for redemption | 753 | |
| After a surrender to the purchaser at foreclosure sale has been directed, a bill of review cannot be sustained, unless it appear that the purchaser has been let into possession | 753 | |
| SALE. | ||
| The mailing to a purchaser of a warehouse receipt for grain in a distant warehouse, though not separated from the general mass of grain therein, passes title | 231 | |
| The possession of goods by customs officers prior to entry will not defeat the right of stoppage in transitu | 784 | |
| Part payment and acceptance of a draft for the balance, and the fact that the consignees were part owners of the vessel, and the ship's husband, will not defeat the right of stoppage in transitu | 784 | |
| A parol warranty, made at the time of a written contract of sale, cannot be shown to vary or add to its terms | 541 | |
| One who purchases looking glass, advertised as superior quality, after a full examination, cannot claim to be relieved from the bargain because it is in fact of inferior quality | 1049 | |
| SALVAGE. | ||
| Right to salvage compensation. | ||
| The rescue of a ship and cargo captured by a privateer is a salvage service | 71 | |
| The master, in such case, acts in a new capacity | 71 | |
| A wrecking company which rescues a derelict vessel which had been chartered by it for a wrecking enterprise, in which it was stranded, is entitled to salvage | 453 | |
| Answering signal of distress, and placing navigator aboard the vessel at the request of the only remaining officer, ignorant of navigation, held a salvage service | 925 | |
| Services of wreckers in releasing vessel from perilous position, and bringing her into port, held to be pilotage in the nature of salvage, where the master, having facilities at hand, accepted proffered services of wreckers | 1033 | |
| On ship and cargo worth §60,000, salvors in such case awarded $1,500 | 1033 | |
| Forfeiture or reduction of salvage. | ||
| Wreckers will forfeit all compensation by fraudulently keeping vessel aground to fabricate or enhance services | 956 | |
| Freight lost by capture is not chargeable to the recaptors who claim salvage where the voyage is destroyed | 71 | |
| A bona fide compromise will bar further claim for salvage | 71 | |
| Amount. | ||
| The principles upon which the admiralty proceeds in awarding salvage laid down | 312 | |
| Salvage can only be allowed on the goods actually delivered | 71 | |
| A moiety is the largest amount decreed | 173 | |
| One-third allowed for cargo and materials valued at $58,751, saved from ship lost upon Carrysfoot reef | 82 | |
| Fifteen per cent, allowed for staying by ship in peril, and dragging her over a shoal, into safe anchorage | 312 | |
| Salvors allowed from 28 per cent, to 50 per cent, of value of cargo saved after unsuccessful efforts to float vessel | 572 | |
| Salvors of brig worth, with cargo, $26,000, awarded $500 for placing navigator aboard in answer to signal of distress | 925 | |
| Remedies for recovery. | ||
| An action will not lie at common law for salvage on the high seas | 71 | |
| Apportionment. | ||
| In apportioning salvage among the officers and crew of a steamer, the court regards their responsibilities in their different stations. Equal shares given to the master and pilot | 312 | |
| Master and owners of ship which placed navigator aboard vessel in distress held co-salvors | 925 | |
| The whole salvage will be awarded to the wrecking firm, where the wages of the crew employed were paid by it, and they make no claim to salvage | 453 | |
| Costs. | ||
| The master having been at fault, the costs should be charged to the vessel and cargo, though, from misconduct, salvage was forfeited | 956 | |
| Restoration of property. | ||
| Restitution, upon payment of salvage, will be adjudged in all cases, if the original owners can be found | 173 | |
| Property libeled for salvage service is in the possession of the court, and can only be restored by express order | 956 | |
| The court may refuse to restore the property to the master as bailee of the owners, where their interests would be jeopardized thereby | 956 | |
| SCERE FACIAS. | ||
| A sci. fa. to revive a judgment, if conformable to the judgment, cannot be amended | 377 | |
| SEAMEN. | ||
| The contract of shipment. | ||
| Hands employed in a special character are responsible for reasonable skill as such, and for faithful performance of duties | 592 | |
| The words “or elsewhere” in the shipping articles are to be held either void for uncertainty, or as subordinate to the principal voyage stated | 404 | |
| Though shipping articles describing the voyage to be from “Boston to Goree, Africa, at and from thence to such port or ports as the master might direct” be void, the master is not justified in discharging the seamen in Africa | 740 | |
| It seems that a “trading voyage” does not include a “freighting voyage.” | 404 | |
| Seamen shipped for an undefined voyage, the actual voyage intended being concealed, held entitled to extra compensation for labor in loading guano | 236 | |
| The master's agreement to pay extra compensation held binding upon the master and owners, but not upon the seamen | 236 | |
| The term “state,” as used in Act July 20, 1790, providing for a written contract where voyage is between ports of other than adjoining states, includes a territory of the United States | 514 | |
| 1235 | ||
| The agent of the master in shipping a crew cannot also act as the agent of a seaman, and sign his name to the shipping articles | 514 | |
| Contract of shipment, made by agent in violation of uncommunicated orders, held broken by subsequent compliance therewith | 1196 | |
| The disturbed condition of country to which vessel is bound, existing some time before vessel sailed, is no excuse for breaking up voyage | 1199 | |
| Stipulations in the articles, derogating from the general rights and privileges of seamen, will be held void, unless they are fully explained, and additional compensation allowed, the burden of proving which is on the owner | 407 | |
| A clause providing for a loss of wages in case of capture or detention held void | 407 | |
| Compensation allowed to owner by the shipping commissioners will be presumed to be full indemnity for his loss | 407 | |
| Payment to a sailor need not be made in the presence of the shipping commissioner. Rev. St. §§ 4504, 4549 | 318 | |
| Stipulations in foreign shipping articles, to refer all disputes to home courts, will not prevent American courts assuming jurisdiction in case of wreck of vessel, unseaworthiness, or improper treatment of seamen justifying his release | 555 | |
| Seamen wrongfully discharged abroad cannot be compelled' to ship as seamen for a return in another vessel of the same owners, or their own vessel, in which they have been illtreated | 740 | |
| The consul alone has power to remit the extra wages allowed seamen on discharge ordered by him in foreign port, where voyage is voluntarily broken up | 1196 | |
| A seaman disabled in the service of a whaling ship, and necessarily left abroad, held entitled to a full lay | 481 | |
| Such seaman is entitled to the expenses of his cure, and of his return, and is not to suffer a deduction of the three months' extra wages paid him, where he received no benefit therefrom | 481 | |
| A seaman wounded abroad in the service of the ship has a right to be cured and sent home at the expense of the ship, and his wages continue to the time of his return, not exceeding the length of the voyage | 418, 1080 | |
| A seaman relinquishes his right to be occured at the expense of the ship by abandoning its service | 1122 | |
| A second mate, wounded by accidental discharge of pistol in his hands while assisting to suppress a riot on board, held injured in service of ship | 1080 | |
| The cost of the cure of a mariner injured in the service of the vessel may be recovered by proceeding in rem, together with damages in the nature of additional wages, where the injury is caused by neglect or misconduct of officers or owners | 367 | |
| Such damages are not allowed, however, in the absence of fault of the officers | 356 | |
| The vessel is liable for an injury caused by the failure of her owners to use ordinary care in the employment of competent and skillful officers and mariners | 367 | |
| The remedy given against the officers of a vessel (Act Feb. 28, 1871, § 43) does not preclude an action against the vessel | 367 | |
| A consul at a foreign port has no power to discharge a seaman for disability arising from wounds contracted in the service of the ship, even with his consent | 1080 | |
| The master sent the clothes of a seaman, who was left in hospital at a foreign port, to the consul's office. The evidence did not show that the seaman received them. Held, that he could recover their value | 1080 | |
| Page Seamen compelled to supply themselves with board have a lien against the vessel for the expenses thereof | 352 | |
| Conduct of master or mate in respect to seamen. | ||
| The master is responsible for the neglect of an injured seaman during the voyage, and after reaching port | 418 | |
| A seaman on a voyage from Calcutta to Boston, 25 days before passing St. Helena, fell from aloft, and broke his legs. Held, that the master should have put into St. Helena for his relief | 418 | |
| The provisions of the ancient sea laws on the authority of the master to punish seamen | 905 | |
| The court will not adjust very exactly the balance between the gravity of the offense and the quantum of punishment | 905 | |
| A mate will not be held responsible as a joint trespasser in assisting the master, in obedience to his orders, in inflicting punishment on a seaman, unless obviously and grossly excessive and unjust | 905 | |
| A settlement for damages for a tort made after suit brought, and in the absence of libellant's proctor, upheld, where fairly made, and consideration not apparently inadequate | 301 | |
| Wages—Right to. | ||
| A person shipped as steward for a voyage at sea cannot recover wages as such, where he was utterly incompetent, and willfully negligent, though he was continued in service for the voyage | 592 | |
| Seamen are entitled to pro rata wages where voyage is interrupted without their fault | 37 | |
| Seamen are entitled to three months' extra wages where the vessel is cast away by the master. Rev. St. §§ 4526, 4582,4583 | 362 | |
| Where the loss is without the owner's privity, he is liable only to the extent of the proceeds of the vessel, after payment of wages to the termination of the voyage | 362 | |
| Seamen of vessel lost on homeward voyage are entitled to wages to the time of discharge of cargo on outward voyage, but not for any of the time she remained in port | 211 | |
| It is the right and duty of the mariners of a neutral ship, after capture, and even after condemnation, to remain by the ship, while there is any hope of recovering the property | 407 | |
| A seaman, shipping at Maine and discharged in New Orleans, at his own request, is not entitled to wages for the entire voyage, or to extra wages, as for a discharge in a foreign port. Act 1803, c. 9, § 3 | 383 | |
| Nor is the consent of a consul or a commercial agent necessary to render his discharge valid | 383 | |
| A seaman so severely chastised, with an improper weapon, because of insolence, as to be necessarily left behind at a foreign port, is entitled to wages to the last port of delivery, but not to benefit of Act Feb. 28, 1803 | 399 | |
| Seamen engaging for service in time of war held only entitled to customary peace wages, from the time peace took place | 86 | |
| Foreign coin paid seamen on their discharge abroad is to be valued at its rate in the home port, under the laws of the United States; otherwise, where payment is a voluntary advance | 961 | |
| Settlements of wages and other terms of discharge, made by a consul, may be inquired into or varied where he acted without statutory authority | 481 | |
| The action of the consul in the discharge of seamen in a foreign port is not conclusive upon the court | 1199 | |
| 1236 | ||
| Wages—Bemedies for recovery. | ||
| Seamen have a triple security for their wages, the vessel, the owner, and the master | 211 | |
| A mortgagee in possession is liable for the mate's wages | 10 | |
| The owner of a vessel, although his name is not stated in the shipping articles, and although he sells the vessel subsequent to their execution, is liable for seamen's wages | 211 | |
| The lien for wages attaches to the ship and freight, and their proceeds, into whosesoever hands they may come, and takes priority of all other claims | 407 | |
| The approval of a consul is not absolutely necessary to the maintaining of a suit by foreign seamen | 555 | |
| Deviation is no ground of entertaining suits by foreign seamen for wages, where, by the articles, they have stipulated to sue in their own country only | 555 | |
| A discharge, actual or constructive, entitles the seaman to sue for wages at once, though the stipulated time of service has not expired | 961, 974, 977 | |
| A report of seaworthiness made by marine surveyors, upon the crew demanding to leave on account of unseaworthiness, is not conclusive, in a subsequent action for wages, after leaving | 555 | |
| Seaman, who needlessly brings suit separate from his fellows, not allowed costs | 961 | |
| ———Deductions: Extinguishment, etc. | ||
| The value of articles lost by a seaman's negligence may be deducted from his wages | 413 | |
| A deduction is allowed to the amount of loss actually sustained by a vessel detained in port by the wrongful absence of a seaman | 413 | |
| The master has authority to displace the mate and all subordinate officers during the voyage, being responsible for an abuse of his authority | 874 | |
| Where the only defense set up to a libel for wages is desertion, a sum less than that due will not be awarded because of misconduct not amounting to desertion | 974 | |
| The capture of a neutral ship operates, at most, only as a suspension of the contract for wages, and the seaman is entitled to full wages, if, without fault of his own, he is unable to complete the voyage | 407 | |
| The seaman loses his wages on a sentence of condemnation, unless there is a restitution of the property, or its value, with an allowance for freight, in which case the lien operates thereon | 407 | |
| Where only part of freight is allowed, wages are diminished in proportion | 407 | |
| It is not a desertion for a mariner to leave a ship at a port from which it intends to start on a voyage not named in the shipping articles | 404 | |
| The question as to deviation in a voyage is to be determined as a question of fact upon the evidence | 977 | |
| A seaman is justified in leaving the vessel through fear induced by cruel treatment and threats | 880 | |
| Section 5 of Act July 20, 1790, designates the only case in which a forfeiture of wages is peremptory | 974 | |
| To forfeit wages under such act, an entry must be made in the log book of the time of absence | 321 | |
| Such entry must state substantially that the absence was without leave, and must be made on the day the seaman absented himself | 977 | |
| The return within the 48 hours, in order to save a forfeiture, must have been unconditional, and a return to duty generally | 977 | |
| Independently of statute, a desertion incurs the penalty of forfeiture of all wages antecedently due | 874, 977 | |
| Imprisonment under clause 7, Act July 20, 1790, prevents forfeiture of wages under clause 5 | 37, 321 | |
| But the cost of commitment and support, and the charge for a person necessarily employed in the imprisoned seaman's place, may be deducted | 321 | |
| SEIZURE. | ||
| Court officers having custody of property seized, pending suit, are responsible for loss or injury sustained by want of due diligence | 746 | |
| SET-OFF AND COUNTER, CLAIM. | ||
| Damages for use and occupation may be the subject of set-off | 204 | |
| SHIPPING. | ||
| See, also, “Maritime Liens.” | ||
| Public regulation: Title to vessel. | ||
| Sufficiency of allegations of complaint in action against collector of customs for penalty under Act 1852, § 24 | 152 | |
| A boat licensed as a ferry boat, but frequently making trips beyond her ferry limits, is not exclusively engaged in ferrying, and is subject to inspection. Act 1852 | 139 | |
| Vessels engaged in commerce wholly within a state are not subject to inspection, under Act 1864 | 139 | |
| The act of 1864 does not extend the requirement of the act of 1852, concerning the inspection of hulls, etc., to vessels engaged in commerce wholly within a state | 139 | |
| Construction generally of the act of June 8, 1864, relating to the inspection of hulls, etc | 139 | |
| Character of vessel, as to whether or not it is a “canal boat,” within the exemption from liability for marine hospital tax (Act July 20, 1846), how determined | 566 | |
| One having neither the actual nor constructive possession of a vessel, nor the right of possession, cannot transfer a good title thereto | 692 | |
| A power of attorney authorizing a person to receive a vessel from her commander, and to sell her, does not give the right to sell the vessel until possession is delivered | 692 | |
| A libel by moiety owners for sale of a vessel cannot be met by a motion founded on affidavits to continue possession of vessel on giving security | 823 | |
| A sale will be ordered where moiety owners cannot agree as to control and employment of vessel | 823 | |
| Where the equal half ownership and disagreement is denied, claimants will be allowed to retain possession, pending the hearing, on giving security | 823 | |
| The master. | ||
| To justify a sale of ship or cargo by the master, it must appear that it was necessary, that it was made in good faith, and that he was unable to communicate with the owners before the necessity of action became imperative | 106 | |
| A sale of the cargo of a stranded ship by the master is unnecessary, and therefore void, if he could have transshipped or stored it, or if he had any other alternative which a prudent owner on the spot would adopt | 106 | |
| The refusal of the purchaser to permit his vessel to be used for transshipment estops him from claiming that the sale was necessary | 106 | |
| 1237 | ||
| A sale on unconscionable terms to persons in a position to render salvage services will be set aside | 106 | |
| Purchaser of cargo of stranded vessel, under void sale, allowed compensation, in the nature of salvage, for caring for cargo, but not the purchase money embezzled by master | 106 | |
| SLAVERY. | ||
| A child of a slave is a slave of the person entitled to the service of the mother at the time of the birth | 297 | |
| Contracts for the sale of slaves are not enforceable after the passage of amendment 13 to the constitution | 578 | |
| No executory contract between a master and his slave can be enforced, either at law or in equity | 438 | |
| Right to freedom, and petition and procedure thereon | 60, 806, 898, 901, 904 | |
| Jurisdiction under the fugitive act of 1850 | 1174 | |
| SPECIFIC PERFORMANCE. | ||
| Equity will decree specific execution equally in behalf of the vendor as in behalf of the vendee | 219 | |
| Where only part of vendors were bound for a title, there is a want of mutuality, and a specific execution will not be decreed | 219 | |
| An executory agreement, or an imperfect conveyance, without a valuable or meritorious consideration, will not be enforced in equity | 867 | |
| The relation of son-in-law does not constitute such a consideration | 867 | |
| A deed of general warranty may be good, although it may not contain, technically, the five covenants which such an instrument usually contains | 219 | |
| STATES. | ||
| The validity of a decree of the congress of the state of Tamaulipas cannot be called in question | 460 | |
| A resolution of the Tamaulipas congress, passed after the lands in dispute had become a part of the territory of the state of Texas, is not binding as res judicata | 460 | |
| STATUTES. | ||
| Where the language used in a revision cannot possibly bear the same construction as the original act, full effect must be given the new enactment | 318 | |
| When a revising statute covers the whole subject-matter of antecedent statutes, it virtually repeals the former enactments, without express provision to that effect | 910 | |
| TAXATION. | ||
| A change in the assessment, made after the return, without the knowledge of the owner, who complied with all legal requirements, will vitiate a sale for nonpayment of taxes | 71 | |
| To bind the owner by a tax sale the land must have been proceeded against in the name of the real owner, or by such a description as will clearly identify it | 883 | |
| The right of redemption is against the person possessed of the title at the time of redemption | 127 | |
| TENDER. | ||
| A refusal to take goods purchased dispenses with the necessity of a tender | 1049 | |
| A tender admits the cause of action in admiralty as at law | 1027 | |
| TIME. | ||
| “Months,” as used in Dall. Pa. Laws, 112, requiring mortgages to be recorded within six months from their date, means calendar months | 469 | |
| TORTS. | ||
| Suit will lie in personam, as well as in rem, for marine tort | 171 | |
| TOWAGE. | ||
| A tug, exercising that degree of caution and skill which prudent navigators usually employ in similar services, is not liable | 41 | |
| Miscalculation, resulting in failure to reach a bar at high water, and the grounding of the tow, is negligence rendering the tug liable | 41 | |
| The vessel in tow must watch her own course, and be prepared to follow the manoeuvre of the tug | 319 | |
| Owners of steamer towing a flat boat at a low stage of water in the Ohio river held not liable as common carriers for a loss, in the absence of negligence or want of skill in navigation | 36 | |
| Tow boat held, guilty of negligence in navigating close to shore, through anchored vessels, and in not anticipating sudden anchoring of vessels ahead | 238 | |
| TRIAL. | ||
| A verdict agreed upon after a juror has separated from his fellows by mistake, and returned, may be allowed to stand, in the discretion of the court | 832 | |
| A finding in pounds, when damages were laid in the declaration in dollars, is no cause for arresting judgment | 929 | |
| The conclusion from facts found in a special verdict must be drawn by the court | 904 | |
| The court, on rendering judgment on a verdict assessing damages, cannot add interest from a time anterior thereto | 940 | |
| TROVER AND CONVERSION. | ||
| The owner of gold-bearing bonds, converted by an agent, may recover, at his election, their value as damages, or the amount received by the agent as such | 77 | |
| TRUSTS. | ||
| A trustee is only bound to manage lands conveyed on an undefined trust with the same diligence as he does his own property | 816 | |
| The trustee is not answerable to the representatives of the cestui que trust for acts done with the latter's approval | 816 | |
| A trustee is not chargeable with failure to rent unproductive property, or to inclose open lands | 816 | |
| The trustee is bound to pay taxes, if in funds, or he may advance his own money, and charge it against the property in his hands | 816 | |
| 1238 | ||
| The trustee may sell at private sale, where the trust is general, and no mode of sale is prescribed | 816 | |
| A trustee, if acting in good faith, is justified in selling for fair market value, though special circumstances enhance value to the purchaser | 816 | |
| Money received by a person as trustee under a marriage settlement contract, signed and sealed by him, held a debt due by specialty, though there was no substantive covenant by him to accept the trust | 876 | |
| Creditors of an insolvent trustee need not be made parties to a bill against his administrator for an account | 876 | |
| In a suit to enforce a trust created by a person since deceased, and also to set aside certain conveyances procured from her heirs, as alleged, by fraud, the administrator of the ancestor, and the heirs or their representatives, are properly joined as complainants | 667 | |
| The original trust may be enforced against a son of the trustee, who assisted his father in a scheme to get possession of the trust estate, for a grossly inadequate consideration | 667 | |
| A deed made by a bankrupt to the trustee, in pursuance of the requirements of the insolvent law, is a revocation of a prior trust | 210 | |
| Courts of law, in the exercise of chancery powers, can enforce conveyances in trust | 412 | |
| While a trustee cannot be charged with negligence or maladministration not set out in the bill for an account, it may be considered in fixing his compensation | 816 | |
| Trustees are entitled to compensation by way of commissions | 816 | |
| Fees paid for professional advice as to the execution of the trust are chargeable against the trust; otherwise as to fees in a litigation of the trustee's account | 816 | |
| USURY. | ||
| Where the principal of a loan is to be returned at all events, any profit made, or loss imposed upon the borrower in addition to the legal rate of interest, is usury | 927 | |
| Adding exchange on the place of the payee's residence, where note is made and payable in another state, held to render it usurious | 927 | |
| The assignee in bankruptcy, of one of two joint makers of a note and mortgage, cannot (in Wisconsin) maintain a petition to declare the securities void for usury | 209 | |
| VENDOR AND PURCHASER. | ||
| See, also, “Specific Performance.” | ||
| The purchaser of lots in the city of Washington, by the square foot, is not bound to pay for a proportion of the alleys, if there be no special agreement to that effect | 65 | |
| Defect of title will not relieve a purchaser in undisturbed possession from payment of the purchase money, there being no fraud or misrepresentation; but he must rely upon his covenants | 1176 | |
| A reasonable time, only, can be allowed to a vendor to execute his part of the contract | 219 | |
| The registry of a mortgage not executed in such manner as to authorize its record is not of itself notice | 12 | |
| Equitable lien of assignee of bond for purchase money will not be enforced, as against other lienors, after 15 years delay | 893 | |
| A purchase money lien does not pass to the transferee of a note taken in part payment | 246 | |
| The vendor's lien is not waived by the subsequent taking of a mortgage, and it takes precedence over a judgment lien acquired between the date of the transfer and the mortgage | 503 | |
| WAR. | ||
| See, also, “Limitation of Actions.” | ||
| A mere declaration of war does not confiscate enemy property or debts due to the enemy, nor vest such property or debts in the government | 177 | |
| A seizure by the marshal under the confiscation acts, upon written order of the United States attorney, is sufficient to give jurisdiction of the res | 2 | |
| A judgment in confiscation proceedings is not subject to collateral attack | 2 | |
| A decree condemning property under the confiscation act cannot be collaterally assailed by disputing the recitals of the record as to seizure | 384 | |
| The seizure by military authorities of unaccepted drafts, where the drawer and drawee are citizens of different states in rebellion, passes no title to the United States to the money in the hands of the drawees, as such drafts are void | 177 | |
| Nor does the possession of such drafts give the right to take physical possession of the moneys of the drawees | 177 | |
| A person seizing such moneys or compelling their payment is liable therefor, notwithstanding he was acting as a military commander | 177 | |
| Nor is the seizure of such moneys under such circumstances validated by Act March 2, 1867 | 177 | |
| The civil war did not end as to Arkansas until the proclamation by the president so declaring it | 384 | |
| WILLS. | ||
| A will devising real estate held to be an execution of the stipulations in a bond before marriage, in the nature of a marriage settlement | 516 | |
| A codicil confirming a will is in law a re-publication of the will so as to pass real estate intermediately purchased | 444 | |
| A legacy to a granddaughter by codicil, “in lieu” of a devise in the will to her mother, since deceased, is a revocation of the original devise to tie mother | 444 | |
| The revocation by codicil as to one child, without a devise over, of her share of a devise to “all surviving children in equal divisions,” does not pass such share to the other surviving children | 444 | |
| A general devise of all testator's property for “life, and to do with as she sees proper before her death,” held to give a life estate in land with power of disposal, in fee during her life | 26 | |
| Payment of general and specific legacies where fund set apart for payment of debts was inadequate, and a sale of the whole estate was directed | 943 | |
| WITNESS. | ||
| An expectant or contingent interest will not disqualify a witness | 836 | |
| It is no disqualification of plaintiff's witness that he is a surety in plaintiff's administration bond | 691 | |
| A strong bias in favor of a party goes to the witness' credibility, and not to his competency | 836 | |
| 1239 | ||
| A person having an exclusive right to a patent in a certain territory, but no interest in a certain county, or in the suit for infringement therein, may testify for plaintiff | 548 | |
| The record of conviction in a criminal prosecution, or a verdict in a civil suit, is inadmissible in favor of a person testifying therein, in an action by him | 548 | |
| On motion for a provisional injunction, the verdict in another suit in which plaintiff testified may be admitted in evidence in the discretion of the court | 548 | |
| In a proceeding by an assignee for relief from a mortgage for usury, the mortgagors, though not parties, are not competent against the executors of the deceased mortgagee, to testify as to transactions with or statements made by testator. Act March 3, 1865 | 209 | |
| The court will instruct the jury to disregard the testimony of a witness who, upon cross-examination, is shown to be interested | 204 | |
| WRITS AND NOTICES OF SUITS. | ||
| Deputy clerk of district court held authorized to sign process in his own name. Act March 3, 1821 | 2 | |
| If all the defendants in ejectment inhabit the same house, and this appears by the marshal's return, it is sufficient to deliver one copy | 1167 | |
| Sufficiency of return of marshal of service of declaration in ejectment | 1167 | |
| An affidavit of service is only necessary, where the service is not made by an officer of the court | 1167 | |
| Service by publication is resorted to only when personal service is not practicable within a reasonable time, and by the exercise of reasonable diligence. Act June 1, 1872 | 220 | |
| The order directing an absent defendant to appear, plead, etc., must be made by the court in term | 220 | |
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