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6FED.CAS.—76
[The reference are to pages. The asterisk (*) indicates that the case has been reversed.]
| ABATEMENT AND REVIVAL. | |
| See, also, “Admiralty.” | |
| Page | |
| A plea in abatement, in an action on a note, that one of the joint indorsers, not served, is a citizen of another state, is bad | 479 |
| ACCOUNT. | |
| In an action of account, on a reference to auditors under judgment quod computet, all transactions between the parties are to be considered down to the time when the auditors make an account | 651 |
| The report “that the plaintiff has no legal demand against the defendant at present” is objectionable | 651 |
| ADMIRALTY. | |
| See, also, “Courts;” “Maritime Liens;” “Pleading in Admiralty;” “Practice in Admiralty;” “Shipping.” | |
| Jurisdiction—In general. | |
| Extent of admiralty jurisdiction in the United States | 967 |
| The subject-matter of the contract must be maritime in its nature, to enable an admiralty court to give a remedy | 681 |
| Admiralty has no jurisdiction, either in rem or in personam, for breach of a contract for stevedores' services | 681,695 |
| The district court in admiralty has no jurisdiction of a libel in personam against the builder of a vessel, after its delivery, for breach of the written contract under which it was built. (Reversing 972.) | 967 |
| —Waters and places. | |
| Seizures on water navigable from the sea by vessels of 10 or more tons' burden are exclusively cognizable in admiralty | 892 |
| —Torts. | |
| Jurisdiction of courts of admiralty as to misdemeanors committed on the seas | 546 |
| Actions in the admiralty, for mere personal torts, do not survive the death of the person injured | 763 |
| A state statute will not enable an administrator to maintain an action in the district court for a personal tort committed on the high seas | 763 |
| Procedure. | |
| Restoration must be awarded in a possessory action for a vessel upon the legal ownership without regard to collateral equities | 47 |
| AFFREIGHTMENT. | |
| See, also, “Admiralty,” “Bills of Lading;” “Carriers;” “Charter Parties;” “Shipping.” | |
| A master who attempts to make the Bay of San Francisco in a dense fog, when the vessel can safely lay outside, is guilty of negligence, and the stranding of the vessel cannot be attributed to perils of the seas | 607 |
| The responsibility of the lighterman ceases, and the liability of the vessel commences, when the articles are properly placed on the slings and hooked to the tackle, where the hoisting apparatus belongs to the vessel or the stevedores | 545 |
| The exception “dangers of the seas” excuses the master for a non-delivery, but does not authorize a demand of freight | 935 |
| It is bad stowage to place hogsheads of sugar on barrels of whisky, without dunnage and beds at the bottom | 836 |
| Where the amount of freight is made to depend on the gross gauge of casks delivered, it is immaterial whether a loss was occasioned by ordinary leakage or dangers of the sea | 935 |
| A sale of damaged cargo by consignees at private sale without appraisement is not binding on the vessel | 877 |
| It is the duty of the master, and not the consignees, to make separation of the sound from the unsound part of the cargo, if necessary to obtain a favorable sale on account of the vessel | 179 |
| The amount realized from a sale at auction by consignees with the assent of the master of the damaged cargo, received by the consignee with the understanding that the depreciation was to be made good, will be regarded as the value of the goods in fixing the liability of the vessel | 180 |
| Conflicting surveys by port wardens and marine surveyors, appointed by the chamber of commerce and board of underwriters, are not evidence as to manner of stowage of cargo | 836 |
| ALIENS. | |
| Disabilities. | |
| A British subject could not, in 1793, inherit lands in the United States from a citizen of the United States | 361 |
| The statute of 7 Anne, c. 5, § 3, does not apply to children born under the same allegiance with that of their father | 361 |
| If one of four parceners be an alien, the whole descends to the remaining three | 361 |
| The rule which prevails at common law, that an alien can take lands by purchase, though not by descent, prevails also in equity | 887 |
| An alien to whom an interest in real estate is devised is entitled to hold the same until the state interposes its prerogative claim | 887 |
| Naturalization. | |
| A state possesses concurrent authority with congress upon the subject of naturalization, but cannot use such authority to contravene a rule established by the latter | 105 |
| A court of record without a recording officer distinct from the judge is not competent to receive an alien's declaration of intention. (Act 1802.) | 796 |
| 1202 | |
| The applicant who has complied with all the conditions of admission to citizenship cannot be prejudiced by the failure to record all the proceedings | 49 |
| A certificate reciting that the statutory requisites hare been complied with, issued to one who has fully complied with all the conditions precedent to admission to citizenship, is not within Rev. St. § 5426, though all the proceedings were not recorded | 49 |
| The question as to what constitutes a record of naturalization considered | 49 |
| ALTERATION OF INSTRUMENTS. | |
| The addition of the name of a place to the signature of the maker of the note, to make it negotiable according to the law of such place, is a material alteration | 212 |
| An alteration of the recitals of a bond, which does not in any manner prejudice the obligees or effect their rights or obligations, is immaterial | 775 |
| APPEAL AND ERROR. | |
| Defendant cannot appeal from a superseded judgment. (Act Md. 1791, c. 67.) | 641 |
| A decree final in other respects is not converted into an interlocutory one because it directs a taxation of costs | 726 |
| A decree against a person served with process of foreign attachment, requiring him to pay the money into court as property of the respondent,held not final and appealable | 1043 |
| A note sued on is not part of the record, unless produced on oyer | 391 |
| An award of damages in admiralty proceedings, when discretionary with the court, will not be disturbed on appeal except for clear mistake or error, or upon new evidence | 1070 |
| Where plaintiff is at least entitled to nominal damages, he should be permitted to avoid a new trial for erroneous instructions by remitting damages | 670 |
| On certificate of division of opinion on a question of jurisdiction dismissed by the supreme court because of an equal division of opinion, the circuit court must enter a decree dismissing the bill | 62 |
| An appeal may be taken from such decree, and the case reviewed in the supreme court, the same as if the decree were pronounced by the judgment of the circuit Court | 62 |
| APPEARANCE. | |
| A demurrer on the ground that the petition does not set forth facts sufficient to constitute a cause of action is an appearance which cures defective service of process | 1121 |
| ARMY AND NAVY. | |
| The oath of a recruit as to his age is conclusive (Act Feb. 13, 1862), and, on habeas corpus for his discharge, other evidence is inadmissible | 281 |
| ARREST. | |
| See, also, “Bail.” | |
| No process can be issued to arrest a defendant in a civil suit except under the state law | 472 |
| Imprisonment for debt being abolished in Louisiana, held, that the federal courts therein have no jurisdiction of a suit for the enforcement of a highly penal statute regard to fraudulent debtors. (Act 1841.) | 1004 |
| Magistrate committing on charge of forgery ordered, on motion, to restore to the prisoner genuine notes taken from his possession | 710 |
| ASSAULT AND BATTERY. | |
| No words of provocation will justify an assault, although they may constitute a ground for the reduction of damages | 1070 |
| Evidence of defendant's state of mind, caused by recent excitement or provocation, is admissible in mitigation under the general issue | 1077 |
| Provocation will only excuse the payment of exemplary damages | 1077 |
| Exemplary damages cannot be recovered where the assault was committed in the heat of passion caused by the appearance and statement of defendant's son punished by plaintiff, and without previous malice | 1077 |
| ASSIGNMENT. | |
| An assignment of “all the assignor's estate and effects in possession, or which may accrue or become due and owing to him,” will not transfer a mere possibility of a legacy | 385 |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | |
| Preferences to creditors, if not made for fraudulent purposes, are valid in Ohio | 455 |
| A trust for creditors (Act Ohio March 14, 1853) will not be implied from a transfer by an insolvent, to indemnify a surety, of property sufficient only for that purpose | 455 |
| An instrument whose effect is to transfer property beyond the reach of an execution in trust for assenting creditors is within the Pennsylvania statutes regulating voluntary assignments for creditors | 582 |
| The levy upon property of the debtor within the 30 days allowed for the filing of the inventory (Act N. Y. June 16, 1877, § 3) gives no lien, though the assignment is rendered void by failure to file the inventory at the expiration of such time | 902 |
| ASSUMPSIT. | |
| One held in slavery abroad, who remains with his master on coming into the United States, cannot recover for his services upon an implied promise | 984 |
| But money paid to purchase freedom may be recovered back as paid without Consideration | 984 |
| Plaintiff will not be allowed interest, both parties having acted in good faith | 984 |
| ATTACHMENT. | |
| See, also, “Garnishment.” | |
| The property of a respondent who is not an inhabitant of the United States, and not found in the district, may be attached. (Adm. Rule 2.) | 1017 |
| The intent to delay or defraud one creditor alone in the disposal of goods by the debtor is sufficient ground of attachment | 599 |
| Proof of a general intent to dispose of property to prevent a particular creditor from collecting his demand by legal proceedings is sufficient proof, in an action by such creditor, that he is about to do so | 599 |
| 1203 | |
| Effect of redelivery to defendant of property taken on attachment under Code Or. 178, 179 | 599 |
| An attachment will be dissolved where defendant is arrested before its return | 683 |
| An officer in Massachusetts seizing property of a firm on a writ against one partner who has no equitable interest in such property is a trespasser | 869 |
| The measure of damages for seizure under attachment of the goods of a third person is their value at the time of seizure, with such further damages as may be found to have been actually sustained by reason of seizure | 207 |
| ATTORNEY AND CLIENT. | |
| The effort of an attorney to secure from certain persons, as condition to his consent to their appointment as receivers of a rail road, a secret promise to appoint pertain persons as chief officers thereof, is not alone ground of disbarment | 35 |
| A proposition by a lawyer to his client that he will visit, with his family, the family of the judge, and at such time seek to commit the judge in favor of his client, is ground of disbarment | 35 |
| Inciting and encouraging clients, parties to a pending litigation, to influence, improperly, judicial action by newspaper publications and printed circulars disparaging the court, with intent to intimidate the judges, is ground of disbarment, though the attorney's suggestion is not acted upon | 35 |
| An information charging such conduct need not state the precise mode by which the attorney conveyed such suggestions to the client | 35 |
| Nor is it demurrable on the ground that the suggestion to the client is a privileged communication | 35 |
| The court will uphold the proctor's right to costs awarded against acts of the principal to his prejudice | 127 |
| AVERAGE. | |
| To constitute a case for general average, there must be a successful attempt, by a voluntary jettison, to avoid an imminent and apparently inevitable danger, in which ship, cargo, and crew all participate | 277 |
| The word “average,” when used without the adjuncts “general,” “partial,” or “particular,” imports as well a general contribution as a particular loss | 611 |
| A claim for general average contribution is but a qualified lien depending upon possession of the goods | 277 |
| The maritime law does not imply, on the part of the owner receiving the goods, a promise for contribution | 277 |
| The court in admiralty will not entertain jurisdiction in cases of general average unless all the parties in interest are before it | 277 |
| BAIL. | |
| Bail residing in Alexandria county cannot be received in an action in Washington County | 309 |
| An allegation of citizenship is not necessary in an affidavit to hold to bail | 472 |
| An affidavit to hold to bail in Ohio need not state that the affiant is a citizen of any other state | 472 |
| Money voluntarily paid to a marshal in satisfaction of forfeited recognizances is not within the custody or summary jurisdiction of the court | 560 |
| BANKRUPTCY. | |
| See, also, “Chattel Mortgages.” | |
| Operation and effect of bankrupt laws, and of proceedings thereunder. | |
| The court on petition against surviving partners cannot take the estate out of the hands of the administrator of the deceased partner, who has possession thereof under the state statutes | 1107,1108 |
| The commencement of bankruptcy proceedings between the time work is done or materials are furnished and the filing of notice of mechanic's lien does not affect the right of the lien creditor | 637 |
| A mechanic's lienor cannot proceed in the state court, after petition in bankruptcy is filed, without leave of the bankruptcy court | 381 |
| An action of replevin against a bankrupt in the state court, founded upon disaffirmance of a sale of goods for fraud, will be enjoined pending his discharge | 14 |
| The district court will not restrain trover in the state court by the mortgagee of property sold by the assignee without an order of court | 469 |
| Leave may be granted to continue suit pending in state court for purposes of liquidation and to prove the debt provisionally. | 431 |
| The court cannot release a bankrupt from arrest or imprisonment for a debt which is provable, but not proved, against his estate, before the decree and certificate of discharge. (Act 1841.) | 237 |
| A decree in mortgage foreclosure made after the filing of the petition in bankruptcy in a suit commenced before such filing will bar the right of the assignee of the mortgagor to raise the question of usury | 1078 |
| A formal dissolution of a partnership will not prevent the operation of the bankruptcy act upon the Partners, so long as there are partnership debts and partnership assets existing | 836 |
| Commencement of proceedings—Voluntary bankruptcy. | |
| A married woman may be a voluntary as well as an involuntary bankrupt | 113 |
| A judgment obtained in bastardy proceedings for the maintenance of the child and a judgment for damages in an action of seduction are not “debts,” within section 1, Act 1841 | 617 |
| Motion by partner to set aside adjudication, on the ground of fraudulent misrepresentations of his copartners, inducing him to join in the petition when the firm was solvent, for the purpose of depriving him of his property, denied | 648 |
| Bankruptcy proceedings by a corporation, authorized by a minority of the members, will not be dismissed on the petition of an officer after the lapse of a year, as brought without authority, where the corporation was hopelessly insolvent, and the stockholders did not differ as to the propriety of the Proceedings | 100 |
| —Involuntary bankruptcy. | |
| The petition must be signed by one third in value of all the creditors, and by one fourth in number of creditors whose debts exceed $250. If there are none such, or if a sufficient number of them do not petition, the one-fourth in number may be made up from the smaller creditors. (Act 1874, § 12.) | 988 |
| It is not necessary that the larger creditors should refuse to sign; it is enough that they do not sign | 988 |
| The provision of section 12, Act June 22, 1874, as to the number and amount of creditors, does not apply to cases in which there has been an adjudication prior to the date | |
| 1204 | |
| of the act; the adjudication being a final judgment, beyond the power of congress to annul or set aside | 241 |
| A creditor holding ample security not released is not considered as having a provable debt (Rev. St. § 5021) | 894 |
| Such creditor may be counted if he seasonably releases his security before the hearing and decision as to a quorum | 894 |
| The claim of a preferred creditor is not to be reckoned in determining whether or not the requisite proportion of creditors have or have not joined in an involuntary petition | 988 |
| A debt barred by the state statute of limitations cannot form the basis for an adjudication | 586 |
| A note given in place of a lost note, which latter was without consideration, will not support a petition | 595 |
| A creditor may allege as an act of bankruptcy the taking of property on his own execution in such manner as would operate to give preference to himself | 689 |
| The averment of fraudulent conveyance in the deposition must allege or show fraudulent intent | 966 |
| Petitioning creditor, on motion, will be allowed to file supplemental depositions if those in support of the petitionare defective. | 966 |
| But in such case the order to show cause will be set aside, a new order being issued on supplemental depositions | 966 |
| An amendment will be allowed to cover the case made by the evidence where there is no surprise on the debtor | 698 |
| A substantial amendment nunc pro tune going to the foundation of the proceeding, under section 39, Act 1867, will not be allowed | 701 |
| The petition may be amended nunc pro tune by averring that the act was done by a debtor “while insolvent or in contemplation of insolvency,” where the facts are shown in the petition and by the proof | 701 |
| The debtor may show that petitioner is not a creditor, and have the petition dismissed | 586 |
| Commencement of proceedings—Acts of bankruptcy. | |
| The words “in contemplation of bankruptcy,” in the act, mean in contemplation of committing what is made by the act an act of bankruptcy | 701 |
| One engaged in a manufacture and sale of lumber is a “trader.” (Act 1841) | 672 |
| An assignment for the benefit of creditors under a state law is an act of bankruptcy | 708,838 |
| Unlawful imprisonment in a civil action founded on contract, submitted to for more than seven days before an effort at liberation was made, is an act of bankruptcy | 24 |
| Making a transfer of property, giving a warrant to confess judgment, or procuring or suffering property to be taken on legal process, constitute acts of bankruptcy when done by an insolvent or in contemplation of bankruptcy with intent to give a preference | 698 |
| Giving a chattel mortgage to secure a pre-existing indebtedness with intent to delay, hinder, and defraud creditors is an act of bankruptcy | 672 |
| A confession of judgment by an insolvent debtor, and the levy upon and sale of his property, will make out a case under section 39, Act 1867, though the debtor did not know that there was such a law as the bankruptcy law | 698 |
| Debtors with knowledge of insolvency are bound to know whether such condition continues, and a mistaken belief that all other creditors have settled will not justify a transfer which in fact operates as a preference | 982 |
| The taking of security on making a bonafide loan to an insolvent, if without participation in any intent to defraud creditors or defeat the bankrupt act, is valid | 1179 |
| A suspension of payment of commercial paper for 14 days need not be shown to have been fraudulent | 672 |
| An allegation merely that tie debtors “have fraudulently stopped and suspended, and not resumed payment of their commercial paper for a period of 14 days,” is insufficient | 268 |
| Assignee—Appointment and removal. | |
| When no creditor who has proved his debt appears at the time and place appointed for the first meeting of creditors, the judge, or, if there be no opposing interest, the register, is to appoint one or more assignees | 11 |
| Property of bankrupt—What constitutes. | |
| A right of action in tort for fraud and deceit is not an asset. (Act 1867, § 14.). | 836 |
| Where partners, more than four months before the commencement of tie proceedings, transferred all their separate and joint property to one partner, who undertook to pay the firm debts, all the assets will be treated as the separate assets of that partner | 107 |
| All the members of a copartnership must be adjudged bankrupt to enable an assignee to deal with the joint property of the firm | 848 |
| —Wife's claim. | |
| The wife is not estopped to claim dower or a homestead exemption, as against the assignee, by having joined in a deed set aside as fraudulent at the instance of the assignee. (Reversing 685.) | 684 |
| —Possession and custody. | |
| A receiver may be appointed where there is delay in prosecuting the proceedings | 417 |
| Funds in the hands of an assignee in bankruptcy are not subject to garnishment. | 958 |
| —Exemptions. | |
| The bankrupt is entitled to the exemption as allowed by the law of the state as existing in 1871, though subsequently, and before the proceedings in bankruptcy, such exemption was reduced. (Rev. St. § 5045.) | 13 |
| A pew in a church cannot be included in property set apart to the bankrupt as necessaries | 241 |
| No exemptions can be set apart to tie individual partners from the assets of a bankrupt firm until all the firm debts are paid | 838 |
| The individual members of a bankrupt firm are not entitled to exemptions of household and kitchen furniture out of the partnership property | 528 |
| —Liens. | |
| The lien of an attachment in Massachusetts is not an absolute lien, entitled to protection, but is contingent upon the creditor obtaining a judgment in the suit | 383 |
| A judgment upon property attached in Massachusetts is a lien (Act 1841, § 2) wholly unaffected by the proceedings in bankruptcy when regularly obtained before petition, decree, or discharge in bankruptcy | 383 |
| A mechanic's lien given by the local law is not opposed to the bankruptcy acts | 637 |
| The assignee stands in the place of tie bankrupt, and takes only the property | |
| 1205 | |
| which he had, subject to all valid claims, liens, and equities | 1116 |
| A chattel mortgage, though not recorded, as required by the state law, is good against the assignee in bankruptcy, in the absence of actual fraud | 3,112, 1116 |
| The rule in Iowa that an unrecorded mortgage, where the mortgagor retains possession, is valid against attaching creditors with notice of its existence at any time before levy, applies equally to an assignee in bankruptcy. (See, also, 114) | 706 |
| A mechanic's lien given by the state law will be protected by the bankruptcy court, but only after discontinuance of proceedings in the state court | 381 |
| On a contract not completed when petition was filed, a pro rata allowance only will be made. For work done afterwards nothing is allowed | 381 |
| A decree in a contest between the assignee and the claimant on a reference as to surplus proceeds of a foreclosure sale, declaring claimant's mortgage to be in fraud of the act, held binding in the bankruptcy proceedings | 1114 |
| —Sale. | |
| The court has full power to order the sale of incumbered assets in such manner as it chooses to direct | 177 |
| Where the court, under a mistake, of facts, has ordered a sale of land as being without value, and to clear the title, it, on petition of the injured owners, will direct a sale to be set aside and the deeds canceled | 257 |
| Proof of debts. | |
| Judgments in actions, whether arising ex delicto or ex contractu, are provable debts. (Acts 1841.) | 237 |
| One who has been garnished and defaulted, and subsequently declared a bankrupt, is not a debtor of the garnisher so as to make his claim provable as that of a creditor | 176 |
| Only such debts as exist at the time of filing the petition are provable | 766 |
| A demand for rent accruing after the bankruptcy is not provable | 220 |
| A deficiency in rent arising out of a re-letting by the landlord or default in payment of the rent, after the bankruptcy of the tenant, under the conditions of the lease, is not provable | 863 |
| Brokers holding stocks on a margin at a profit when the petition was filed who hold for an unreasonable time, and sell on a decline, without notice, cannot prove a claim for differences | 1169 |
| A preferred creditor cannot prove his debt, or any part of it, until he has voluntarily or by compulsion surrendered his Preference | 988 |
| A mere repayment to the debtor, after a petition in bankruptcy is filed, cannot take the place of a surrender to the assignee | 988 |
| A creditor whose preferences have been set aside may prove his whole debt in the absence of actual fraud | 988 |
| Where the transferee has not acted in good faith, he will not be allowed amounts which he paid to obtain the benefit of the transfer | 454 |
| A deed of mortgaged land to the mortgagee, where the mortgage amounts to more than its value, cannot be a preference; and the mortgagee, in giving up the deed, is entitled to prove the balance of his debt | 689 |
| A creditor offering to relinquish his priority, obtained by the levy of an execution before knowledge of the insolvency, may prove his debt | 689 |
| A transfer of property by an insolvent trader to a person who had reasonable cause to believe such insolvency, when made with intent to give a preference, precludes the transferee from proving his debt | 454 |
| A creditor receiving a fraudulent preference from the firm of A., B. & C. is not barred from proving another debt against the firm of B. & C | 248 |
| A creditor who has received a fraudulent preference cannot prove his debt after the assignee has obtained a judgment against him setting aside the preference | 742 |
| One who, knowing that the bankrupt could not pay his debts without help, loaned him money, and subsequently took a chattel mortgage for his entire stock of goods, to secure payment of the judgment confessed on the debt, is not entitled to prove his debt, though he surrender the security | 139 |
| The amount of a debt, after deducting the value of real estate mortgaged to secure it, and the value of chattels acquired from foreclosure of a chattel mortgage, may be allowed | 738 |
| Where the bankrupt has given a mortgage to secure accommodation notes and indorsements by the mortgagee, the holders of the paper are entitled to prove the balance of their debt after sharing pro rata in the proceeds of the mortgaged property | 1116 |
| Where proof of an indebtedness has been disallowed, a retransfer of collaterals will not be ordered | 1120 |
| A deposition to a proof of claim in involuntary bankruptcy must show whether the claim is secured or unsecured | 966 |
| The order to show cause why the proof of debt should not be vacated on objection by a creditor must be made by the court, and not by register | 235 |
| The district court has power to set aside a verdict found under section 4, Act 1841, and to order a new trial in consonance with the rules upon which such new trials are granted in courts of law | 600 |
| Payment of debts: Priority: Dividends. | |
| The state has no claim to priority against a bankrupt bank in which the warden of a penitentiary deposits funds in his own name, he being liable to the state on his bond. (Reversing 579.) | 576 |
| Judgment obtained in Georgia held not entitled to priority where there was a failure to make levy for seven consecutive years after 1860 | 696 |
| Firm creditors are entitled to preference out of partnership assets | 129 |
| Provisions of section 14. Act 1841, relating to the settlement and distribution of assets in cases of partnership, are in affirmance of the principles on which equity proceeds | 129 |
| The fact that a member and his share of property of an old firm went into a new firm, which became bankrupt, does not give the old firm creditors a right to payment out of the assets until after the new firm creditors are satisfied and the accounts are adjusted between the partners | 757 |
| The interest of members of a bankrupt firm, as individuals, in the partnership property, is an interest in the surplus only | 528 |
| On a claim by one member of a syndicate of banking firms against the estate of a bankrupt member, the court will examine into the accounts of all the members, in order to make a definite allowance against the bankrupt's estate | 427 |
| Examination of bankrupt, etc. | |
| An order for examination may be granted a creditor (Act 1867, $ 26), notwithstanding | |
| 1206 | |
| the election of a trustee and committee of creditors under section 43 | 418 |
| It is the duty of the bankrupt to disclose whatever the parties interested may be concerned to know regarding his debts, business, or estate | 418 |
| Bankrupt compelled to answer questions relating to matters transpiring prior to the time when the creditor's debt was contracted | 711 |
| Questions asked the bankrupt's wife as to the incumbrances upon her property held pertinent and proper | 712, 714 |
| Questions relating to the amount of and derivation of the property of the bankrupt's wife held pertinent and proper | 712, 714 |
| A witness summoned for examination (Rev. St. § 5087) is not a “party,” and is not entitled to counsel, or to take the opinion of the court upon matter arising in the proceeding | 252 |
| A creditor is not entitled to interfere or be represented by counsel, not being a “party” to the proceeding | 252 |
| An attorney who has no authority to appear in a proceeding instituted by the assignee cannot be heard to question the authority of the attorney who appears in such proceeding as counsel for such assignee | 252 |
| An attorney other than the duly-appointed attorney may appear as counsel for the assignee in a particular proceeding pending in court | 252 |
| The bankrupt may not consult with his counsel before answering interrogatories, except by permission of the register | 116 |
| Costs: Fees: Disbursements. | |
| The dismissal of a bill by the assignee to set aside preferences as fraudulent, where the construction of the statute was doubtful, should be without costs | 125 |
| Liability for register's charges and for costs of purchaser on a sale and resale by the assignee of property claimed by a mortgagee | 112 |
| The bankrupt's attorney is entitled to an allowance for services in securing exemptions which were rejected by the assignee | 239 |
| Assignees under the state law cannot receive allowance for attorney's fees, nor compensation for their own services, where the debtor has been adjudged a bankrupt | 21 |
| The court may allow a debtor the expenses of his unsuccessful defense of the petition | 239 |
| Petitioning creditors are not allowed retainers paid their attorneys or for services rendered after the adjudication | 240 |
| The assignee is liable for full rent of premises occupied by him under an unexpired lease by the bankrupt, and the landlord has a lien on the goods on the premises | 220 |
| Right of assignee to expenses of caring for the property and effecting a sale and opposing a resale | 112 |
| Marshals must present vouchers for items charged in their accounts, or produce satisfactory reason for their absence | 240 |
| Allowance to marshal for a storekeeper | 240 |
| Discharge—Proceedings to obtain. | |
| Application must be made before the final report and discharge of the assignee | 885 |
| The oath of conformity (Rev. St. § 5113) may be taken before any register or any court commissioner at any place within the district of such register or commissioner. Such oath is evidence within Rev. St. § 5003 | 236 |
| —Opposition: Acts barring. | |
| The filing of an opposition to a bankrupt's discharge is the commencement of an individual proceeding | 793 |
| A power of attorney under form No. 26 held not to authorize the filing of an opposition to the discharge | 793 |
| A creditor must prove his debt before being entitled to be heard. (Act 1841.) | 12 |
| Both the bankrupt and creditors who have duly come in under the law may contest the right of a creditor who has not proved his debt to oppose the bankrupt's discharge | 12 |
| The specifications filed against the discharge must set out the particulars of the bankrupt's offenses | 267, 304 |
| A specification which simply charges that the bankrupt concealed his estate and effects, and concealed and removed, altered, and destroyed the books and writings relating thereto, is insufficient | 267 |
| Transactions occurring before the passage of the bankruptcy act may be specified as grounds of opposition | 810 |
| A preference cannot be set up in bar of the discharge where the creditor abandons his security, and is admitted to prove the debt (Act 1867, § 23.) | 312 |
| Where an assignee under a voluntary general assignment by partners sets apart a portion of the assets as exemptions to one of the partners, a discharge was refused such partner | 838 |
| The want of proper firm books of account will bar a discharge to a partner in a firm of tradesmen | 33 |
| “Tradesman,” as used in section 29, Act 1867, does not mean “trader,” as used in the large sense of the old bankrupt law | 614 |
| A farmer who occasionally buys and sells horses, cattle, and hay is not bound to keep books as a tradesman | 614 |
| On a sale of firm assets to a new firm formed by taking in a new partner, the transaction must be entered upon the books of the old firm | 33 |
| A discharge will be denied until the amendment of the schedule so as to set out an interest in expectancy omitted by the bankrupt | 304 |
| The case will be referred back to the register where the bankrupt has omitted from his schedule, as outlawed, claims of creditors who had no notice of the proceedings | 1066 |
| The refusal of a judge to discharge a debtor, if the proceedings were irregular, is no bar to his discharge upon a subsequent application | 304 |
| All the orders and proceedings must be by the judge to whom the application is made | 304 |
| —Scope and effect. | |
| A discharge on proceedings in involuntary bankruptcy against one partner alone will relieve him from payment of a firm debt only if there was no copartnership property at the time it was granted | 848, 850 |
| Prohibited or fraudulent transfers. | |
| The payment of a note by one who guartied it after maturity held not to be a payment for the benefit of the indorser within section 35, Act 1867 | 531 |
| A surety on a bond for performance, prior to its forfeiture, is not under liability for his principal, within section 35, Act 1867 | 531 |
| An adjustment between an insolvent debtor and creditor, not followed by any actual change or transfer of property, rights, or credits, to the prejudice of other creditors, is not contrary to the bankrupt act, but is not binding on the assignee | 248 |
| A mortgage by an insolvent corporation to secure a loan is not affected by the fact that it was intended as an unlawful preference, if such intent was not carried out | 531 |
| An intent to prefer individual creditors over persons who might charge the debtor with the statutory liability for the debts | |
| 1207 | |
| of a corporation is not an intent to defraud creditors | 450 |
| A mortgage to secure future advances, made more than two months before petition filed, is operative as to all advances made in good faith before the filing of the petition | 745 |
| Where the legal and the illegal considerations which entered into a mortgage are clearly separable, it will be held void only in part | 531, 745 |
| The fact that part of the consideration for a mortgage was the obtaining of a preference will not taint the security as to other legal considerations | 745 |
| A debtor known or believed to be embarrassed is not disabled from making a fair and honest sale of his property with a view to keep out of bankruptcy | 1183, 1184 |
| A deed to a purchaser for value will not be avoided unless it is shown that he had reasonable cause to believe that the vendor intended to contravene the bankrupt act | 1184 |
| A general oral understanding, entered into when a debt is contracted, to give security when required, will not render valid a mortgage which operates as a preference | 312 |
| A transfer of assets of an insolvent firm to one member will not be sustained where its effect is to give a preference to one class of creditors | 129 |
| One borrowing money from the bankrupt after petition filed, and before adjudication, is liable there for to the assignee | 848 |
| The preference to a creditor, to be void under either section 35 or section 39, Act 1867, must be made within four months of the filing of the petition | 3,125 |
| A conveyance by a solvent grantor of his entire property, on an agreement that the grantee shall pay his debts and support him for life, is not, per se, fraudulent and void as to creditors | 586 |
| A sale by one partner to his copartner when the firm is insolvent and on the eve of bankruptcy will be set aside in favor of firm creditors. (Act 1867, § 35.) | 378 |
| Where the giving of a note and mortgage to holders of a check is shown to have been made out of the ordinary course of business, the burden is on defendant to show the validity of the transaction | 118 |
| Suits in relation to the estate. | |
| All suits in relation to the bankrupt's estate should be brought in the name of the assignee. To a suit in the name of the bankrupt, defendant may plead the appointment of the assignee in abatement | 412 |
| The assignee may attack conveyances as in fraud of the creditors, though such creditors are creditors at large | 706 |
| The assignee may attack as fraudulent a conveyance made by the bankrupt whenever creditors could do so | 114 |
| An assignee who sues to recover the value of property alleged to have been conveyed by the bankrupt as an illegal preference under the bankrupt act cannot recover, on the ground that the conveyance was void at common law or under the state statute | 706 |
| A bill for an account filed by an assignee of two insolvent partners against a solvent partner may be retained until the receiver has reported a settlement of all other demands against the firm | 606 |
| In a suit to set aside a sale as fraudulent (Rev. St. §§ 5128, 5129, as amended June 22, 1874), knowledge by defendant that the sale was in fraud of the act must be averred and proved | 924 |
| An assignee for creditors who receives the assigned property before proceedings in bankruptcy is not liable in trover where he sells the same, and pays over the proceeds under order of the state court, before suit brought against him by the assignee in bankruptcy | 708 |
| Remedies of the assignee in bankruptcy to recover property from the assignee for creditors under the state law | 708 |
| The two-years limitation for suits by or against the assignee (Act Aug. 19, 1841, § 8), has no reference to suits growing out of dealings of the assignee with the estate after it comes into his hands, but only to suits having reference to rights existing prior thereto | 257 |
| Review. | |
| On petition for review of the finding of the district court on a matter of fact, the burden is on the petitioner to show that the evidence cannot support the finding | 3 |
| The statements in a petition for review, like those in any other pleading, must be taken as true on demurrer, and, if sufficient, the decree below reversed | 982 |
| An appeal under Act March 2, 1867, § 8, Will be dismissed for failure to comply with the provisions in regard to entering the appeal, or the provisions of general order No. 26 in regard to filing the appeal, and setting forth a statement in writing of the claim | 48 |
| Arrangement with creditors. | |
| The burden is on the acting parties to show that all the creditors consented to discriminations in payment of claims | 982 |
| The trustees, under direction of the committee, can wind up the estate, or they may be restricted to the more limited powers and duties of ordinary assignees. Act 1867, § 43.) | 1177 |
| The trustee, as well as the creditors and court, are bound to accept the direction of the committee as conclusive, in the absence of fraud | 420, 431 |
| BANKS AND BANKING. | |
| See, also, “Courts;” “Taxation;” “Usury.” | |
| A bank can justify its payment on the individual check of a member of a firm, of funds deposited in the name of the firm, only by showing that the money thus drawn was applied to the use of the firm | 492, 493 |
| The burden is on the bank to show the assent of the partnership to charge up to its account the individual note of one of the partners | 493 |
| BILL OF LADING. | |
| See, also, “Affreightment;” “Carriers;” “Charter Party;” “Shipping.” | |
| The proper mode of proving the execution of a bill of lading considered | 178 |
| The assignment of a bill of lading passes the property in the goods, and advances subsequently made to the consignor on the transmission of the goods are not a lien on them | 996 |
| A vessel giving a clean bill of lading for a specified number of bushels of corn is liable for any deficiency, although she proves that she delivered all she received | 797 |
| Blowing of a vessel is a peril of the sea | 877 |
| The exception of “any act, neglect, or default whatsoever” of the master or mariners, and of liability of leakage or breakage “when properly stowed,” does not exempt the vessel from responsibility for leakage and breakage from bad stowage by the master or mariners | 143 |
| A bill of lading acknowledging receipt, in good order and condition, of casks containing bristles, covered with matting, “weight | |
| 1208 | |
| and contents unknown,” is no admission as to the condition of the goods beyond that visible to the eye or apparent from handling | 178 |
| In such case the burden is on the shipper to prove the contents, and their condition at the time of shipment | 178 |
| Otherwise, where the external covering is damaged when delivered, so as to account for an injury to the contents | 178 |
| Under a bill of lading of a cargo of granite blocks, silent as to delivery, the consignees are bound to discharge the cargo in the usual way with reasonable diligence | 468 |
| The consignees of a cargo of granite blocks are not liable for demurrage where the discharge is delayed for several days, owing to the prevalence of an epidemic among horses, where they used reasonable diligence | 468 |
| BILLS, NOTES, AND CHECKS. | |
| What law governs. | |
| Notes drawn, dated, signed, and indorsed at Philadelphia, where drawers and indorser resided, delivered and discounted in New York, are governed by the laws of New York | 333 |
| Validity. | |
| A mere moral consideration is not sufficient to support a promise to pay | 595 |
| A gift, though expressed in a note, is not a sufficient consideration to support a promise to pay | 595 |
| A note imports a consideration | 391 |
| The addition of “and Company,” to the signature of a note after the maker had taken in a partner, made with the consent of all parties, will make the note binding against the firm | 923 |
| Indorsement and transfer. | |
| The right to the funds of the drawer in the hands of the drawer is vested in the indorsee of the bill, though the same is not accepted, and such funds are not subject to attachment after suit commenced against the drawee by the indorsee in the name of the payee | 601 |
| A merchant purchasing a note at heavy discount, after learning of insolvency of payees, is not a bona fide holder as against previous hen of judgment creditor's bill | 954 |
| One receiving note in satisfaction of antecedent debt is a holder for value | 954 |
| A creditor to whom a note is given with directions to collect it and to retain the surplus, where the debt is afterwards settled, is not a holder for value | 954 |
| By the commercial law, a negotiable promissory note, received in payment of a pre-existing debt, bona fide, and without notice, is not subject to the equities between the original parties as an accommodation note, though the rule in New York be otherwise | 881 |
| Where such note is accepted as payment on raise and fraudulent representations of the assignor as to its making, and the responsibility of the parties, the original debt is not extinguished | 881 |
| The holder of negotiable paper which is proved to have been put in circulation by fraud must show that he is a bona fide holder for a valuable consideration | 954 |
| An unauthorized transfer, to a bona fide purchaser, of certificates of a public debt, indorsed in blank to facilitate partial payment, and exchange for other certificates, vests an absolute title in the purchaser | *194 |
| The words, “without defalcation,” do not prevent the maker of a Pennsylvania note from showing fraud in the payee in obtaining the note | 212 |
| In Pennsylvania the equity follows a promissory note into the hands of an indorsee, unless dated at Philadelphia, and made payable “without defalcation” | 212 |
| The holder of a bill before protest is not affected by a settlement between the drawer and payee | 683 |
| A payee of a promissory note indorsing it after dishonor is considered a drawer, and is not liable to the indorsee without demand and notice | 680 |
| Informality in a transfer of a note from a Corporation to a bona fide holder held to be cured by a written indorsement of the note, before maturity, by the president with the consent of the directos | 480 |
| The holder of a note cannot fill in the blanks in an indorsement in blank by a third person, written over the name of the payee on the back of the note | 449 |
| The bona fide holder of a note given to a railroad company as subscription for stock may enforce it without regard to existing equities between the original parties | 480 |
| Demand: Notice: Protest. | |
| An indorsee is not liable on a demand note where no demand is made within four years | 771 |
| Days of grace are not allowed on promissory notes | 391 |
| A drawer having no funds in the hands of the drawer is not entitled to notice of nonpayment | 683 |
| If a note fall due on Saturday, and payment be demanded of the maker on that day, notice to the indorser on Monday is not too late | 778 |
| Notice is sufficient if it describe the note so that the indorsers must know it, and state that payment was demanded and protest made, and that the holders look to the indorsers for payment | 477 |
| Memorandum in a notary's book of demand and notice, supported by testimony as to his practice in making demand and giving notice, is competent evidence | 694 |
| Payment. | |
| The United States may recover back money paid by its assistant treasurer for the redemption of forged treasury notes or treasury notes which, being printed by the treasury department and ready for issue were not in fact issued | *438 |
| Release or discharge of indorser. | |
| Indorsers are discharged where time is given for a valuable consideration | 477 |
| The indorser of a promissory note is discharged by plaintiff's giving the maker time to pay by installments | 497 |
| The liability of an indorser, after waiver of demand and notice, is fixed, and is not discharged by the subsequent guaranty of payment by a third person | 531 |
| Actions on. | |
| A suit may be prosecuted against two of three joint indorsers found within the district. (Act Feb. 25, 1839.) | 479 |
| In an action by the payee of a bill having two subsequent indorsements in full, plaintiff need not show a new assignment to himself | 683 |
| The holder of a negotiable note, being the payee, may strike out all indorsements, and bring the action in his own name | 258 |
| A plea that the note had been assigned should be supported by some proof that the right was in the assignee | 258 |
| An indorsement in full cannot be struck out at the time of trial, so as to enable the indorser to recover on the bill | 721 |
| In an action upon protest for nonpayment, it is not necessary to show a protest for nonacceptance, nor to give notice of nonacceptance | 683 |
| 1209 | |
| A special custom to demand payment on the day after the last day of grace may be given in evidence without being averred in the declaration | 694 |
| In an action of an indorsee against the maker on a promissory note, declarations of payee before he parted with it are competent evidence for defendant | 212 |
| As between the parties to a note, parol evidence is admissible to show that there was no consideration, and defendant did not indorse the note to give it credit | 544 |
| The recovery on a note for a certain sum of money, to be paid in sugar, must be for the sum of money mentioned, though by the law of the place the note must be paid in sugar | 650 |
| Exchange is to be settled at the rate prevailing at the time of the verdict | 872 |
| Interest before judgment will not be allowed where, by the law of the place where the note was made, no interest is payable until judgment is obtained | 650 |
| Interest customary at Canton may be allowed upon a note executed there | 675 |
| BONDS. | |
| See, also, “Municipal Corporations;” “Railroad Companies.” | |
| An action will not lie, until the end of the term, for breach of a bond conditioned that defendant shall conduct a certain manufactory for a certain time, and keep an exact account, and deliver to plaintiff one-tenth of the product when demanded | 616 |
| Where a claim arising out of breach of a bond is a stale one, plaintiff will be held to strict proof of damages | 616 |
| Relief which defendant might have in a court of equity cannot affect the determination of an action at common law upon a bond | 942 |
| BOTTOMRY AND RESPONDENTIA. | |
| The defense to a bottomry bond, given in consideration of the obligee's assuming the vessel's debts, that the debts were not satisfied, must be clearly made out | 16 |
| The libelant on a bottomry bond must prove, by other evidence than the bond, the loaning of the money and the making of the repairs, etc., and the necessity of the repairs and the hypothecation | 781 |
| Bounties. | |
| See “Fisheries.” | |
| BRIDGES. | |
| See, also, “Navigable Waters.” | |
| Act Ill. Jan, 26, 1847, relating to bridge over Illinois river, construed | 191 |
| CARRIERS. | |
| See, also, “Affreightment;” “Bills of Lading;” “Charter Party;” “Railroad Companies.” | |
| Where there is no qualification agreed upon, or established by custom or usage, seagoing vessels are liable as common carriers, and bound to deliver the cargo as received, unless prevented by act of God or public enemies | 877 |
| A carrier cannot, by contract, relieve himself from responsibility for the negligence of his servants, because such a contract is unreasonable and contrary to public policy | 143 |
| A carrier, upon delivery of only a part of goods shipped under one complete contract, is only liable for the part not delivered, unless the consignee, within a reasonable time after discovering the defect, tenders the goods already delivered | 309 |
| Where part of the goods delivered are destroyed by fire, the consignee should in like manner tender the part not destroyed | 309 |
| A general ship is liable for the injury to flour from the effluvium from turpentine carried in the cargo, in the absence of an established usage to carry such articles in the same cargo | 152 |
| Where “perils of the seas” is relied on as a defense, the carrier must show that the damage arose from a sea peril. It is not enough to show that it might have arisen from such cause. How such proof may be made | 231 |
| The measure of damages for an injury in transit is the difference between the market value if sound and the value in the unsound condition at the time when goods should have been delivered | 152, 233 |
| The carrier's liability for damages is not affected by the conduct of the consignee in holding damaged goods | 233 |
| The ship's liability is not affected by private contracts between the shipper and strangers for the purchase and sale of the goods | 233 |
| Method of ascertaining damages for delay in the arrival of goods shipped, where there was no market quotation on the day on which the goods should have arrived | 150 |
| The right to freight and the lien therefor is not affected by a contest between the consignee and another as to ownership of the cargo, as that a cargo of guano was tortiously taken from intervener's land | 764 |
| Cargo is not divested of a lien for freight by merely being discharged into a warehouse, and placed with the consignee | 764 |
| Owners of a freight train are liable for carelessness in loading causing injury to a passenger in another train | 1002 |
| CHARITIES. | |
| A devise of lands in trust for the formation and support of a home for aged, in firm, or invalid men, with a provision for its perpetuation by bequests of its inmates, held valid as a charitable use | 807 |
| CHARTER PARTY. | |
| See, also, “Affreightment;” “Bills of Lading;” “Carriers;” “Shipping.” | |
| Under a charter party to furnish a cargo of salt at a certain port to be purchased by the master with the vessel's funds, the charterer takes the risk of there being salt at such port to make up a cargo | 697 |
| The master is not bound to wait for a cargo when there is no hope of obtaining any | 697 |
| The master is not bound to purchase other goods at his own expense, or to go to other places to obtain the salt, to diminish the loss to the charterer | 697 |
| A contest between the consignee and a third person as to the ownership of the cargo does not put in operation a clause giving the charterer the right to retain freight moneys in case of rival claims thereto | 764 |
| CHATTEL MORTGAGES. | |
| See, also, “Bankruptcy;” “Fraudulent Conveyances.” | |
| 1210 | |
| A chattel mortgage, valid as between the parties, though not filed as required by the state law, is good as against the assignee in bankruptcy of the mortgagor | 3, 112, 1116 |
| Creditors who have not by judgment and execution obtained a specific lien cannot attack a chattel mortgage as hot accompanied by delivery and change of possession of the property mortgaged (3 Rev. St. N. Y. p. 222, § 9), and the assignee in bankruptcy of the mortgagee has no greater right | 114 |
| CIVIL RIGHTS. | |
| Act March 1, 1875, so far as it seeks to inflict penalties for the violation of rights of citizens of a state, as distinguished from citizens of the United States, is unconstitutional | 946 |
| Denial of privilege of using public conveyance, where not on the ground of race, color, etc., does not subject to the penalties of such act | 946 |
| COLLISION. | |
| Nature of the liability—Contributive fault. | |
| The want of a light on board of a vessel colliding with another, anchored at night in a channel of a river without a light or lookout, cannot affect the case | 18 |
| The keeping of schedule time will not excuse a ferryboat starting from her slip at such a time as to endanger collision with another vessel | 181 |
| An erroneous order, given in the confusion incident to sudden peril, is not a fault | 153 |
| Where vessels come suddenly and without warning into imminent peril, the necessary uncertainty and confusion must be considered in determining whether the management is blameworthy | 181 |
| Rules of navigation. | |
| Rules and regulations for, landings made by Mississippi towns, when authorized by state laws, will be enforced in federal courts | 941 |
| Libelant landing his flat boat on Mississippi river, in accordance with local rule, held not guilty of negligence | 941 |
| Sail vessels meeting. | |
| When it is doubtful which of approaching vessels close hauled on opposite tacks is to windward, the vessel on a starboard tack should keep her course | 1100 |
| Change of course of vessel close hauled meeting another sailing free, held excused by nearness of danger | 952 |
| Steam vessel meeting sail vessel. | |
| Though in dangerous proximity, the sail vessel, in ordinary circumstances, must keep her course | 565 |
| The sail vessel must change her course if, by so doing, she can prevent a collision otherwise inevitable | 565 |
| The sail vessel must change her course when hailed from the steamer where holding it would drive the steamer into danger to avoid her | 565, 837 |
| A large and swift steamer attempting to pass dangerously near a sailing vessel, takes the risk of the helmsman losing his presence of mind | 173 |
| Steamboat is in fault in undertaking to pass sailing vessel in a channel so narrow that she must come within 15 feet of the latter, when, by stopping a short time, she could have passed in a wider channel | 173 |
| Steamer held in fault for collision with boats holding seine towed astern of a fishing schooner caused by a change of course by the latter made in extremis | 173 |
| Tugs and tows. | |
| Tug held prima facie liable for collision between tow and vessel at anchor at a place where the river was three-fourths of a mile wide | 936 |
| Where the persons, in charge of a tug and tow jointly participate in their control and management, the vessels are jointly liable for an injury to a third vessel | 59 |
| Vessels moored, etc. | |
| Steamship held in fault for setting her screw in motion while in a slip, and in not keeping a watch, and liable for damages to canal boat drawn by suction and sunk | 141 |
| A bark with stern extending beyond the end of the pier held solely in fault for collision with large steamer cautiously working into her berth at an adjoining pier | 584 |
| Steamer held liable for collision with vessel at anchor in a proper place, caused by grounding in an attempt to pass on the wrong side | 228 |
| Speed: Fogs. | |
| Steamer in fog must keep her headway under a command sufficient to stop within such distance as other vessels can be seen, on the assumption that the latter will do their duty in apprising her of their proximity | 153 |
| A propeller of 1,400 tons burden on Lake Huron, in a dense fog, should have two wheelmen and two experienced lookouts | 153 |
| Lights; signals, etc. | |
| A vessel at anchor in a channel of a river is liable for all damages caused solely by her want of a light or lookout | 18 |
| A vessel which is in fault in not complying with the statute regulation as to lights takes the hazard of mistakes made by other vessels as to her true character | 362 |
| In such case the burden is on the steamer which failed to carry the proper lights to show the other might nevertheless, by ordinary care and skill, have avoided the collision | 362 |
| Officers; lookouts, etc. | |
| The chief officer, in a fog, should be so placed that he can have instant access to and command of the signals to the engineer | 153 |
| A tug whose chief officer also acts as wheelsman is insufficiently manned, regardless of the custom of the waters, and every doubt as to her being in fault will be resolved against her | 59 |
| Particular instances of collision. | |
| Between schooner and bark at sea, where the latter, sailing free, failed to keep off | 907 |
| Steamboat held liable for collision with flat boat at Mississippi river landing | 941 |
| Between steam vessels on crossing courses, where one stopped and backed and the other failed to keep her course, as required by the rules | 603 |
| Between steamers on Long Island sound, one of which was misled by the lights of the other, which did not comply with the statute | *362 |
| Between two steamers in the night, meeting nearly end on, where one was without a lookout, and failed to stop and reverse, and starboarded instead of porting | 200 |
| Between steamers approaching guardship on parallel courses, where there was an absence of lookout and change of course | 950 |
| Between propeller at pier and schooner entering the basin, where the latter would have hit the face of the pier had the propeller not been there | 574 |
| 1211 | |
| Procedure. | |
| An omission to state in the libel material fact peculiarly within the knowledge of the opposite party, if without design, is not prejudicial | 59 |
| Libelant must not only show his vessel to be clear of blame, but must show that the loss was caused by the fault of the other | 181, 558 |
| A vessel shown to be negligent must be held to clear proof of contributing fault in the other vessel | 200 |
| Witnesses to a collision should not be impeached because of different statements of attendant incidents | 558 |
| Where there is an irreconcilable conflict of evidence as to whether there was any collision, libels for the loss will be dismissed | 1093 |
| Rule of damages. | |
| The market value just before the collision, in the ordinary course of sales, is the measure of damages in case of total loss | 160 |
| Recovery is limited to the amount of the interest of the owner in the vessel and her freight pending at the time of collision. (Act 1851.) | 412 |
| The value of the vessel at the time and place of loss, in the local currency or its equivalent, will be allowed | 743 |
| The damages where the value of the injured vessel is reported at a certain sum, “in gold, or Canadian currency,” are to be estimated at the value of such sum in United States notes | 642 |
| A fraudulent attempt to charge for repairs not made necessary by the collision will not prevent recovery of true amount of damages, but the court may deny interest | 761 |
| An allowance made to salvors held properly included in the decree | 907 |
| Probable future expenses of earning freight should be deducted | 160 |
| Reasonable apprehension that all efforts to save the vessel injured will be unavailing and perilous will excuse abandonment | 153 |
| Division of damages. | |
| The rules and authorities governing the apportionment of damages for collision in cases of mutual fault, inscrutable fault, and inevitable accident, elaborately reviewed | 195 |
| Damages will be equally divided where, owing to conflicting and uncertain evidence, the fault cannot be fixed | 195 |
| The uncertainty as to the degree of fault and its consequences, where both vessels are chargeable, brings the case within the reason of the rule of apportionment | 743 |
| The damages will be divided where a tow on the Niagara river was separated from the tug, through negligent navigation of the tug, and drifted over the falls, because it had no anchor on board | 743 |
| Costs. | |
| Where a libel is dismissed for failure to prove fault, no costs will be awarded against libelant where there was strong probable cause for the action, and the libeling vessel sustained the greater injury | 558 |
| COMMISSIONERS. | |
| The commissioner has no power to direct the warrant to be returned before another commissioner | 816 |
| When performing the duties of a referee, a commissioner is entitled to master's Compensation | 883 |
| CONSTITUTIONAL LAW. | |
| A state statute regulating oyster fisheries is not repugnant to the power granted to congress to regulate commerce | 546 |
| A state statute prohibiting nonresidents from gathering oysters in any of the rivers, bays, or waters in the state is not repugnant to Const. U. S. art. 4, § 2 | 546 |
| A state statute regulating oyster fisheries, and providing a punishment for a violation thereof, is not repugnant to Const. U. S. art 4, § 2, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction | 546 |
| A small steamer whose route was wholly within the state, though engaged in interstate commerce, held not subject to inspection and license under the federal laws | 1161 |
| Construction of Const. N. Y. 1846, art 7, §§ 4, 9, forbidding release or compromise of state claims against incorporated companies, and the giving or loaning of state credit in aid of corporations, in connection with Act N. Y. 1847 | 1187 |
| CONTEMPT. | |
| Contempt proceedings against a third person for disobedience of an injunction issued in aid of the writ of bankruptcy must be distinct from those against the bankrupt | 793 |
| CONTINUANCE. | |
| Cause will be continued to give party opportunity to cross-examine a witness whose deposition is taken under the act of congress | 1107 |
| CONTRACTS. | |
| The law of the place where the contract is made or broken prevails as to the measure of damages for the breach, but the law of the forum governs as to the remedy for enforcing the claim | 336 |
| A contract to do a thing contrary to an act of the legislature, made in reference to an alteration of the act, subsequently procured before the thing was done, is not illegal | 193 |
| To justify the party in putting an end to a contract, the contractor must, in effect, abandon it, or so act as to show that he cannot complete it within the time limited | 392 |
| Forfeiture of contract declared under mistaken view of facts will not prevent recovery of amount due on contract at time of forfeiture | 937 |
| Officers and engineer of navigation company held not liable to contractor in damages for forfeiture of contract declared under mistaken view of facts | 937 |
| Sufficiency of pleading and proof of bad faith in officers of corporation in declaring forfeiture of contract | 937 |
| Unfitness caused by secret defects in materials used will not exonerate one who contracts to make and finish the specific article | 972 |
| Splits in bottom planks of vessel, discovered on first voyage, eight months after delivery, where the vessel had met with no disaster or strain, held sufficient evidence of improper building | 972 |
| No action lies for breach of a contract on a sale of slaves that the purchaser would not sell them out of the district, where it was stipulated that such slaves should be immediately entitled to freedom upon such sale | 544 |
| 1212 | |
| COPYRIGHT. | |
| A written play consisting of directions for its representation by action, without the use of spoken language by the characters, is a “dramatic composition,” within Act Aug. 18, 1856 | 1132 |
| The author of a copyrighted dramatic composition is entitled to be protected against piracy, in whole or in part, by representation. (Act 1856.) | 1132 |
| A copyright of an engraving of a patented design, where the patent is void for want of novelty, will not prevent a manufacturer from advertising the article covered by the design by publishing an engraving of it | 104 |
| It is an infringement of a copyrighted play to use a great part of a scene represented by actions alone, in the same order and sequence of events, in a manner to convey the same sensations and impressions to the spectators | 1132 |
| The sale of an infringing play to another, with a view to its public representation, makes the seller a participant in causing the play to be publicly represented | 1132 |
| The question of infringement of a copyrighted dramatic composition considered | 1132 |
| CORPORATIONS. | |
| Several states may unite in creating the same corporation, or in combining several pre-existing corporations into one | 501 |
| A state may, without thereby creating a new corporation, authorize a corporation of another state to carry on business within its territory | 501 |
| Act Ala. Jan. 7, 1850, “To incorporate the Memphis and Charleston Railroad Company” domesticates such corporation | 501 |
| A foreign corporation failing to comply with a state statute providing that, before doing business in the state, it must appoint an agent upon whom process may be served, has no power to contract or sue in the state, and and its acts therein are illegal and void | 244 |
| The doctrine of estoppel cannot be invoked against a person contracting with such corporation | 244 |
| A grant, by the incorporators and exclusive owners of the stock, of the right to exercise the corporate franchises for the charter term, held not unlawful | 1175 |
| An agreement between parties representing the interests of rival companies to incorporate a new company, and transfer the property of the old companies thereto, and dissolve the latter, is binding upon the parties, though the old companies did not join in a certificate of incorporation of the new | 349 |
| Special meeting of directors may be called at a place other than the principal principal office of the corporation, where the place of meeting is not prescribed by the by-laws | 531 |
| A director will not be allowed to secure to himself, as a creditor, any advantage over other stockholders or creditors, though he acted in ignorance of the affairs of the corporation | 531 |
| An agreement by a corporation to indemnify an agent against all liability by reason of a transaction in evasion of the statute is void as against an innocent stockholder | 676 |
| A purchaser of stock in the hands of a pledgee, standing on the corporate books in his name, who, without obtaining any evidence of title, immediately pledges them to such pledgee, cannot maintain a suit as a stockholder | 1175 |
| The court will not inquire as to the legal capacity of a corporation which holds property in its possession, at the instance of defendants in an action for injuries there to | 67 |
| A contract of the corporation cannot be attacked as unauthorized, by a stock holder whose stock was derived from persons who had long acquiesced in such contract, and received profits thereunder | 1175 |
| The giving of a mortgage by one who, as agent for a corporation, purchased real estate in his own name for the purpose of evading the statute prohibiting the mortgage of real estate by a corporation (Act N. Y. Feb. 17, 1848, § 2), is in violation of the statute | 676 |
| Jurisdiction is not acquired of a foreign corporation by service of process upon an agent designated by it to receive process in pursuance of a state statute | 1121 |
| The presence of an alien corporation in a state other than that of its creation may be established by acts and conduct in business transactions | 953 |
| A Canadian railroad corporation must be considered as being within the state, and subject to the jurisdiction of the federal court at the suit of a citizen of the district, by operating a railroad therein under a lease ratified by the legislature | 953 |
| A company incorporated by the laws of two states to improve the navigation of a river constituting a boundary between them may be sued in the state where it has its general place of business | 944 |
| COSTS. | |
| In suits at common law, costs can only be awarded as authorized by statute | 7 |
| Upon a judgment on motion upon a replevy bond for rent, the plaintiff is entitled to costs of the motion | 435 |
| Costs are not given upon reversal in supreme court where the bill is ordered to be dismissed | 372 |
| The entire costs of the case are taxed against the losing party | 697 |
| A removal from the state court of an action against a collector to recover excess duties paid does not bring with it the state law as to costs | 7 |
| Plaintiff in a suit against a collector to recover back excess duties removed to the federal court is not entitled to costs where he recovers less than $500. (Act March 2, 1833, § 3.) | 7 |
| Defendant should be allowed costs in such case where plaintiff obtained a verdict for $9.50 | 7 |
| The court, in the exercise of its discretion, will not tax costs against a prevailing plaintiff except where he must have known that he was not entitled to recover $500 | 616 |
| The sum recovered being under $500, costs allowed to neither party | 984 |
| In a case of tort, several costs of travel, attendance, and attorney's fees allowed to several defendants, whether the pleadings are joint or several | 877 |
| A retaxation will be allowed where, by mistake or other casualty, the original taxation was not opposed | 127 |
| An irregularity in the taxation of costs may be corrected by the court, on motion, after final decree rendered | 127 |
| The proctor for a seaman libelant may have a decree for costs, notwithstanding a clandestine settlement with his client | 133 |
| COUNTIES. | |
| Construction of Acts Kan. 1866, 1867, and 1871, relating to the construction of | |
| 1213 | |
| bridges and the validity of bonds issued in payment thereof | 65 |
| Coupons. | |
| See “Bonds;” “Railroad Companies.” | |
| COURTS. | |
| Terms. | |
| A change of the time of holding courts does not work a discontinuance of causes therein pending | 235 |
| Comparative authority of federal and state courts: Process. | |
| Where there is concurrent jurisdiction in courts, the tribunal first obtaining jurisdiction of the subject or person shall retain it | 753 |
| A federal court cannot interfere by injunction to restrain a sale of the property of A. on an execution issued out of a state court against the property of B | 1139; contra 869 |
| A sheriff has no right to interfere with the possession of property legally in the possession of a United States marshal | 753, 824 |
| After a state court has taken jurisdiction under the state statute of a petition to dissolve a corporation, and appointed a receiver, a federal court cannot take jurisdiction of a bill requiring the receiver to account | 279 |
| Federal courts—Jurisdiction in general. | |
| A bill in equity to take property from a state, and subject it to payment of bonds alleged to have been indorsed by the state, though nominally against state officers, cannot be maintained in a federal court | 974 |
| The equitable jurisdiction of the federal courts is not affected by a state law giving relief at law in the state courts which equity alone could previously give | 869 |
| A question of jurisdiction should not be disposed of on motion, but on hearing | 1017 |
| —Grounds of jurisdiction. | |
| In ejectment, the estate is the matter in dispute, and its value must appear in the declaration or by proof. (Act 1789, § 11.) | 774 |
| The amount stated in the body of the complaint, and not that in the prayer for judgment, will determine the amount in dispute in action on money demand | 948 |
| If the verdict be for less than 820, in assumpsit, a nonsuit must be entered | 987 |
| The federal courts have no jurisdiction on the ground of the subject-matter of controversies involving the construction of contracts relating to patents, where the validity of the patent is not involved | 345 |
| An action will lie in the circuit court of the United States on the bond of a deputy collector of internal revenue, for embezzlement of taxes collected by him. (Act July 13, 1866, § 67.) | 777 |
| The national banks have a right to sue in the federal courts by virtue of the act under which they were created, and such right is not controlled by the judiciary act | 226 |
| “Citizenship,” as used in the constitution in reference to federal jurisdiction, means merely residence | 472 |
| On removal by a citizen of one state to another state with a bona fide intention to reside there, he becomes instantly a citizen of that state, and may sue in the court of the United States as such | 472 |
| In an action by a Canadian corporation in the circuit court of the United States in Michigan, held, that service upon defendant as a citizen of Michigan, when in fact he was a citizen of Illinois, is good | 219 |
| The holder of a coupon payable to bearer is not an assignee of the cause of action. (Act March 3, 1875, § 1.) Such coupon is a promissory note negotiable by the law merchant | 491 |
| The limitation, in section 11 of the judiciary act, as to suit on assigned paper, does not apply to national banks | 226 |
| Where jurisdiction is acquired by the federal court solely by reason of citizenship, the court will allow third persons to intervene, if necessary to protect their rights, without regard to their citizenship | 372 |
| Change of status of parties pending suit does not affect jurisdiction of federal court | 949 |
| Pending causes are not affected by act transferring counties from one judicial district to another, where act is silent as to such causes | 949 |
| The fact that one defendant might have pleaded to the jurisdiction is not available to the other defendant, where the former is not served with process | 724 |
| —Circuit courts. | |
| The rulings of one judge of a circuit court are not open for review to any other judge sitting in the same court in the same case | 72 |
| —Administration of state laws and decisions. | |
| The federal court, in an action at law, is governed by state laws so far as they relate to substantial rights | 1007 |
| A state statute authorizing the official acts of notaries to be given in evidence is not binding upon the federal court | 723 |
| The courts of the United States uniformly adopt the construction of a state statute which has been settled by the decisions of the highest courts of the state | 455 |
| —Procedure. | |
| The federal courts do not follow changes in the practice of the state court | 720 |
| A modification of a state law of practice followed for a long time will be considered as adopted by usage if not conflicting with the acts of congress | 1002 |
| The Pennsylvania practice as to special verdicts where the claims are equitable is inapplicable to the federal courts | 282 |
| CUSTOM AND USAGE. | |
| A custom or usage of trade, to be obligatory, must be ancient (so as to be generally known), certain, and reasonable. Where merchants in the trade differ as to its existence it is not obligatory | 111 |
| When a usage is so proved as to leave no doubt of its existence, it becomes a part of the law; and the court will decide on it as such, without requiring it to be again proved | 336 |
| CUSTOMS DUTIES. | |
| Customs laws. | |
| The similitude clause of Act 1842 (section 20) was not repealed by Act 1864, and furnishes a rule of construction thereunder | 17 |
| Rates of duty. | |
| “Angostura Bitters,” used principally as a flavoring extract for mixed drinks, held dutiable as “spirituous liquors not otherwise enumerated,” and not as a medicinal preparation | 1120 |
| Buenos Ayres sheepskins, imported with the wool on, and dried but not dressed, are subject to a duty of 20 per cent ad valorem. (Act July 30, 1846, § 3.) | 6 |
| In such case the wool and pelt cannot be separated, and appraised separately | 6 |
| Chinese coin composed of copper and an alloy is not free of duty as ldquo;coins, gold, silver, and copper,” unless imported to be used as currency | 835 |
| 1214 | |
| Fishplates, under Act 1864, § 3, construed with Act 1842, § 20, are classed under the head of “wrought iron railroad chairs” | 17 |
| Invoice: Appraisal. | |
| Time of shipment abroad will be taken as the time of purchase, unless the collector is notified to the contrary | 915 |
| Payment: Protest: Appeal. | |
| Duties cannot be recovered back where payment is made before protest | 835 |
| A protest when duties are ascertained, where money is deposited with the collector to pay duties when ascertained, is too late | 835 |
| The protest must set forth specific objections | 575 |
| A protest merely claiming that an appraisement is illegal, but not stating in what the illegality consists, is insufficient | 915 |
| Statement in protest held to amount to averment of the presentation of a proper consul's certificate as to the value of foreign paper, or that the importer was able and offered to produce one | 728 |
| The importer cannot insist that the purchase price should govern, and not the price at the date of the invoice, where the only ground of protest was that the invoice exhibited the true market value of the goods | 575 |
| Actions for duties paid. | |
| Limitation of actions for excess duties paid | 864 |
| A certificate of probable cause (Rev. St. § 989) and a stay of execution will be granted, though application not made until after judgment for excess duties paid where such appears to have been the practice | 675 |
| Violations of law: Penalties. | |
| A manufacturer is not subject to penal duties for undervaluation, either under Act Aug. 30, 1842. or Act July 30, 1846 | 914 |
| A collector having refused to allow the importer to add, on his entry, to the invoice prices, because he was the manufacturer, cannot impose a penal duty on the goods as purchased in the foreign market | 914 |
| Bonded warehouses. | |
| The owner of a bonded warehouse (Act Aug. G, 1846) cannot be required to pay the salary of an inspector | 555 |
| DEATH BY WRONGFUL ACT. | |
| It cannot be considered as settled law that no action can be maintained for damages occurring from the death of a human being | 1083 |
| DEBT, ACTION OF. | |
| An action of debt will lie on account, as well as assumpsit | 131 |
| A party may waive a tort, and sue indebt or assumpsit. When indebitatus assumpsit is maintainable, debt is also | 131 |
| DEED. | |
| A deed is not avoided by the seal's being torn off fraudulently or innocently by the obligor | 1086 |
| Deed declared void because procured by fraud practiced upon the grantor | 498 |
| DEPOSITION. | |
| The person whose deposition is taken, under the act of congress, must reside more than a hundred miles from the place of holding the court | 1002 |
| The court will not inquire into the regularity of the issuance of a commission by a court of another circuit when its aid is sought to enforce it | 41 |
| Practice as to granting commissions to take evidence in foreign countries | 978 |
| DESCENT AND DISTRIBUTION. | |
| In Massachusetts, reversions and remainders after life estates vested by descent in the intestate pass to his heirs, without any regard to the ancestor from whom inherited, in the same manner as estates in possession | 399 |
| The common law in such case is different, and gives the estate in reversion to the heir of the first purchaser or reversioner, who is heir at the time when the life estate expires | 399 |
| Under Act Mass. 1783, c. 36, the eldestson took a double portion in remainders and reversions as well as in estates in possession | 399 |
| In Rhode Island, the maternal grandfather of the intestate takes an estate which descended to the intestate from her mother, to the exclusion of uncles and aunts of the intestate who were brothers and sisters of her mother | 45 |
| A father is of the blood of his daughter, within the meaning of the Rhode Island statute of descents limiting the descent of ancestral estates to those of the blood of the person from whom the estate came to the intestate, if any such there be | 45 |
| Where the personal funds of a decedent's estate have passed into other hands than those of his legal personal representative, a bond creditor may proceed to subject the realty to payment | 524 |
| DOWER. | |
| The acceptance of a small instalment of the income of a trust fund given by will held not a conclusive election to accept the provisions of the will in lieu of dower | 825 |
| EJECTMENT. | |
| The title acquired on a sheriff's sale is conclusive in ejectment against the defendant in execution and those claiming under him | 472 |
| A warrant and survey without proof of payment of the consideration is not sufficient to sustain ejectment | 519 |
| The vendor of land cannot maintain ejectment against the vendee in possession who has failed to pay a balance of the purchase price, without a notice to quit, or a demand to pay and notice of rescission | 612 |
| The assignee of a mortgage cannot recover in ejectment unless he show a conveyance to himself. A mere assignment with authority to foreclose is not sufficient | 624 |
| Sufficiency of proof in ejectment upon re-entry for nonpayment of rent by a tenant in fee | 447 |
| ELECTIONS. | |
| Sufficiency of affidavit of violation of Rev. St. § 5426, relating to unlawful registration | 49 |
| EMBARGO: NONINTERCOURSE. | |
| Procedure for a penalty under section 3 of the embargo act | 892 |
| EQUITY. | |
| See, also, “Injunction;” “Pleading in Equity;” “Practice in Equity.” | |
| 1215 | |
| To defeat jurisdiction in equity, the remedy at law must be complete, prompt, and efficient | 753 |
| If the plaintiff has a legal claim, he must pursue his remedy at law so far as he can, before resorting to equity | 467 |
| Material misrepresentations of facts, even though inadvertently made through the mutual mistake of the parties, or by the mistake of the grantors alone, is ground of rescission in equity | 1151 |
| Equitv will entertain a bill to recover an excess of interest paid on a contract stipulating for a greater rate of interest than allowed by law | 1179 |
| The federal court has jurisdiction of a bill for relief of a judgment creditor who, to protect his interest, has purchased property on foreclosure of a prior mortgage which it is attempted to redeem, for the debtor's benefit, under a fraudulently confessed judgment | 987 |
| A delay of 49 years to set up title to land, appearing on the face of the bill, is ground of demurrer | 511 |
| An amended bill alleging infancy and residence in another state, and want of knowledge of rights, and inability to assert the same, until within a few years, held sufficient to relieve the claim of staleness | 511 |
| Rehearings in equity after a decree are not a matter of right, but rest in the sound discretion of the court | 1159 |
| A rehearing, when granted on newly-discovered evidence of confessions of complainant affecting the merits of the bill | 1159 |
| ESCAPE. | |
| In an action on the case at common law for an escape, plaintiff may recover the damages sustained. In debt on the statute the recovery is for the debt and costs, without regard to the damages sustained | 1194 |
| ESTATES. | |
| A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in future | 1088 |
| ESTOPPEL. | |
| The doctrine of estoppel in pais does not extend so far as to enable a person or corporation to do in effect what is forbidden by law, or what they are otherwise incapable of doing | 244 |
| Testimony of the author and assignor of the copyright of a book on an issue of ownership in an action of infringement brought by the assignee, that by the agreement produced he intended to assign all his rights, will estop his legal representatives from subsequently claiming that the assignment was confined to the original term of 14 years | 669 |
| The title acquired after the making of a mortgage inures to the benefit of the first mortgagee, as against a subsequent mortgagee whose mortgage was given after the title accrued to the mortgagor | 542 |
| EVIDENCE. | |
| Judicial notice. | |
| Federal courts will take judicial notice of the existence of the Civil War of 1861-65, and of the facts of public history connected with its origin and progress | 1088 |
| Presumptions: Burden of proof. | |
| The presumption of payment of the purchase money to the original proprietaries of land does not arise from length of time, where no patent is shown to have been issued | 282 |
| Best and secondary. | |
| A copy sworn to be correct by the witness, who had access to, but did not produce, the original paper before the officer who took the deposition, is not good evidence | 254 |
| It is presumed, where a party holds under a deed of general warranty, that the title papers are in the hands of the warrantor, and the warrantee may give in evidence certified copies | 411 |
| The rent rolls and books of the lord proprietors of Maryland may be given in evidence to supply the want of a deed, and may be explained by parol | 361 |
| Evidence of the handwriting of a subscribing witness is not admissible if he has not been inquired for at the place to which he was last traced | 449 |
| Documentary. | |
| A register may certify by his deputy. The form is immaterial, so long as the facts appear | 411 |
| Docket entries which are regarded, by the court which makes them, as the record, will be given the same consideration by another court | 49 |
| Form of authenticating the legislative and judicial proceedings of one state, in order to their admission in evidence in other states | 721 |
| The attestation of a record of court proceedings must be in conformity with the form used in the state, the only evidence of which is the certificate of the presiding judge of such court | 721 |
| A certificate of the presiding judge, stating that the person whose name is signed to the attestation of a record is clerk of the court, and that the signature is in his own handwriting, is not sufficient under Act May 26, 1790 | 721 |
| Foreign written laws must be proved by the laws themselves, if they can be procured; if not, inferior evidence may be received | 336 |
| A printed pamphlet containing the law of a state without any seal affixed is not admissible | 721 |
| A state statute book purporting to be published by legislative authority held admissible evidence of the laws of the state, though not authenticated | 212 |
| Parol, etc., affecting writing. | |
| Defendant in an action on a contract in writing not under seal may prove a parol contract not stated therein | 543 |
| After the execution of a will bequeathing certain negroes, testator gave a bill of sale of such negroes, with others, to the father of the devisees, but made no delivery. Held, that parol evidence was admissible to show that the conveyance was made to more fully provide for the devisees | 814 |
| Declarations. | |
| Respondent's answer upon oath in reply to interrogatories does not, in admiralty, constitute positive evidence in his own favor | 1070 |
| In another suit. | |
| Answers to interrogatories addressed to garnishees holding the proceeds of a vessel, in a libel for a tort committed by such vessel, held not evidence in their favor on a libel by another to recover such funds as owner | 1024 |
| Competency: Relevancy: Materiality. | |
| The acknowledgment of a debt by an alleged partner is not competent to prove the partnership as against the copartner | 597 |
| 1216 | |
| The letter of a deponent held not admissible, except to contradict or qualify some of the statements made in his deposition | 831 |
| Weight and sufficiency. | |
| Positive testimony is entitled to greater weight than negative testimony | 169 |
| Positive testimony is of greater weight than negative only when it can be reconciled with the negative without violence or restraint | 569 |
| Circumstantial evidence tending to raise doubts as to the time of invention is overcome by positive testimony fixing the time definitely | 957 |
| The greater number of witnesses should prevail where there is no method of testing the facts except their statement, and other things are equal | 773 |
| EXECUTION. | |
| See, also, “Judicial Sales.” | |
| An attachment of all the right, title, and interest of the defendant in and to any lands in the county binds his right of redemption of mortgaged land, and not the fee, and, if the execution be extended on the land, the title dates only from the seizure on the execution | 8 |
| A mortgagee in Maine may extend, on the land mortgaged, an execution issuing on a judgment for the debt secured by the mortgage | 8 |
| An alias execution cannot be issued until the return of the first execution, except on proof that it is lost or destroyed | 583 |
| An alias execution may issue where personal property levied on is not sufficient, on sale, to satisfy the judgment | 583 |
| An unsatisfied judgment in Alexandria county is no bar to execution upon a supersedeas in Washington county on the same cause of action | 996 |
| The execution first delivered to the marshal must be first served | 977 |
| The lien of a fi. fa. ceases where it is returned without being levied upon the goods, and is not revived by the issuing of a subsequent fi. fa. | 977 |
| If an officer's return can be fairly construed so as to be sufficient in law, it is the duty of the court so to construe it. | 8 |
| EXECUTORS AND ADMINISTRATORS. | |
| A court of probate cannot authorize an administrator to take possession of any property of which the title or right of possession is not in the estate of the intestate | 804 |
| An administrator appointed in one state is not entitled to property, once vested in an administrator appointed by the court of decedent's domicile, transported to the former state for sale in its markets | 804 |
| An implied promise, in consideration of assets alone, is a promise as administrator | 649 |
| In Indiana the representatives of a deceased joint obligor may be sued, as on a joint and several obligation | 998 |
| Where it is apparent from the whole declaration that defendants are charged in their representative character, it is good on general demurrer, though it also allege a promise by the administrator | 998 |
| The plea of plene administravit is no defense to an action merely seeking to establish the existence of a debt against the estate, where the statute classifies the debts, and only makes the administrator liable to the extent of assets received | 655 |
| The executor, upon plene administravit, is not to be charged with lands devised to him to be sold, if necessary, to pay debts | 986 |
| Plea of never administrator will not obtain in the District of Columbia by one who obtained letters of administration in Fairfax county before the district was separated from it | 649 |
| Executor's bond to surety to pay him half of his commissions held valid, and enforceable before final settlement of estate | 942 |
| Proper deductions in such case | 942 |
| A subsequent agreement, not under seal, not to claim certain commissions, is no defense in an action at law on the bond | 942 |
| Exemptions. | |
| See “Bankruptcy.” | |
| EXTRADITION. | |
| A warrant will not be granted for the removal of a prisoner for trial in another jurisdiction on information for libel filed in a court in which trial is without a jury | 1140 |
| FACTORS AND BROKERS. | |
| Omission to answer a letter reciting a breach of orders, or to state in a letter of complaint that the factor will be held responsible, is not per se, a ratification | 961 |
| Consignees held liable for breach of orders to invest proceeds, though they fell short of estimated amount | 961 |
| Damages in such case are calculated upon the actual injury in the events of the voyage | 961 |
| Conduct of master in receiving proceeds of sale held not a ratification | 961 |
| FISHERIES. | |
| A state has power to regulate fisheries within its territorial limits as to its own citizens and the citizens of other states | 546 |
| The New Jersey oyster law of June 9, 1820, is not repugnant to the provisions of the constitution of the United States | 546 |
| The entire contract between fishermen and skipper must be in writing, and such as is provided by law, to entitle the vessel to a bounty | 912 |
| A payment of bounty without the production of a shipping paper is without authority, and may be recovered back | 912 |
| Sharesmen in a cod-fishing voyage are not to suffer loss by bad debts contracted by the owner in the sale of the fish | 910 |
| The owners of a fishing vessel will be discharged by a payment to the assignee of a nonnegotiable order of a sharesman | 910 |
| FIXTURES. | |
| The mortgagee may remove that which is not a fixture, and which was placed or constructed on the ground, after the mortgage was executed | 497 |
| FRAUD. | |
| See, also, “Equity.” | |
| A representation by the seller to a stranger, and by him communicated to a third person, so as to become the basis of a purchase by the latter, is not res inter alios acta | 831 |
| Negotiations and conversations of a party charged with false and fraudulent representations will be considered in determining the question of fraud | 831 |
| 1217 | |
| 6FED.CAS.—77 | |
| FRAUDS, STATUTE OF. | |
| The taking possession, and cultivating of the land by the vendee, takes the sale out of the statute | 372 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Bankruptcy;” “Chattel Mortgages.” | |
| A transfer of title to an agent in possession, carrying on business in the transferrer's name, is void as against creditors unless made known to the public | 207 |
| A change in the title to real estate on which personalty is situated is insufficient to show a change of possession as to the personalty | 745 |
| The making of a lease of such realty by the mortgagee does not show change of possession of the personalty | 745 |
| GARNISHMENT. | |
| See, also, “Attachment.” | |
| In an action by the assignee of a creditor, the burden is upon one who admits that the debt is due to show that a prior attachment issuing out of another court in an action against the assignor bound the debt in his hands | 863 |
| When service of process containing a clause of foreign attachment held sufficient to charge credits and effects in the hands of garnishees | 1017 |
| Sufficiency of return of service by marshal in such case, and amendment thereof | 1017 |
| GRAND JURY. | |
| The government attorney has a right to be present during the sitting of the grand jury, to conduct the evidence and confer with them | 822 |
| Such attorney has no right to give an opinion as to finding a bill unless requested on a matter of law by the grand jury | 822 |
| GRANT. | |
| See, also, “Deeds;” “Public Lands.” | |
| Custom in Pensylvania as to surveys and location | 282 |
| As to the title of the proprietaries of Pennsylvania to the soil of the province previous to the Revolution and the construction and effect of their grants and reservations | 282 |
| The appropriation by proprietaries of Pennsylvania of the manor of Springetsburg under the warrant of 1722, and the warrant of resurvey of 1762, and the rights of subsequent purchasers and settlers | 292 |
| The lines actually run by the surveyor, and not those reported, control the area | 282 |
| Mistakes of surveyor, when shown by satisfactory proof, may be corrected in courts of law, as well as in courts of equity | 282 |
| The calls must be for some notorious object, or for some point with reference thereto, so as to lead a person using reasonable diligence to the place | 1121 |
| For the purpose of showing mistake in the calls of a grant, resort may be had to the plat and certificate of survey | 1121 |
| GUARANTY. | |
| A letter requesting the addressee to furnish S. & H., who will reimburse the amount, “with any sum they may want so far as $50,000,” the writers holding themselves answerable, held not to be an original undertaking, but a guaranty covering but one advance on partnership account, and revoked by the dissolution of the partnership | 797 |
| A person making advances on the faith of a letter of guaranty must give notice within a reasonable time to the guarantor | 797 |
| One guarantying advances to a partnership is discharged where the creditor divides the debt between the partners on dissolution, discharging the partnership account, without notice to the guarantor | 797 |
| GUARDIAN AND WARD. | |
| A foreign guardian cannot sue in Connecticut as guardian either at law or in equity | 1007 |
| HOMESTEAD. | |
| There can be no homestead carved out of land held by parties as partners | 217 |
| A mortgage given and recorded before the filing of the declaration in writing required by law is superior to the homestead claim | 217 |
| A note given for money borrowed for building, and actually used for that purpose, and a mortgage on the land to secure it constitute an obligation for the erection of improvements (Const. Nev. art. 4. § 30) superior to homestead claims | 214, 217 |
| A deed of trust junior to a judgment clears the land of the right of homestead, and renders the judgment operative as a prior lien; and the right of subrogation will not accrue to the trust deed lienor as to other land as to which the homestead right was not expressly waived | 1 |
| The husband and wife in Nebraska may make a valid mortgage of the homestead property | 884 |
| An express waiver of the homestead right is not essential to the validity of such a mortgage | 884 |
| HUSBAND AND WIFE. | |
| A wife may, by writing under seal, transfer to her husband money held to her sole and separate use under a marriage settlement | 1119 |
| INJUNCTION. | |
| After a question of title to lands has thrice been decided by competent courts, a court of equity will enjoin further proceeding at law | 702 |
| A sale of the property of A. on an execution against B. will be restrained, notwithstanding the owner has a remedy by trespass against the sheriff, or by action on an indemnity bond given | 1139 |
| A contemplated change of gauge in the track which will prevent a railroad performing its agreement with a connecting line or through transportation, under which the lines were built, will be enjoined | 193 |
| A court of equity will enjoin the levy of an execution against one partner, on property of the firm, in which he has no interest which can pass by a sale, though the bill does not pray for a dissolution | 869 |
| The court may take into consideration the existence of actual conflict or imminent danger of violent collision between two authorities, in determining the expediency of awarding the writ | 753 |
| Where the right is plain, and the remedy at law inadequate, an injunction may be granted without a trial at law | 1079 |
| 1218 | |
| A preliminary injunction will be granted in a restrictive form, although obedience should require the performance of substantive acts | 72 |
| Denials and allegations upon information and belief only are ineffectual to move the court to dissolve a preliminary writ | 72 |
| A provisional injunction granted on the filing of the bill falls with the dismissal of the bill | 62 |
| INSOLVENCY. | |
| See, also, “Bankruptcy.” | |
| Act May 6, 1822, for the relief of certain insolvent debtors, is not confined to nonresident debtors | 391 |
| Petition under the insolvent act of the District of Columbia | 771 |
| A person imprisoned on process from the federal court cannot legally be discharged by a state officer acting under a state insolvent law | 1195 |
| INSPECTION. | |
| A subpoena duces tecum requiring a military officer to produce official papers on file at headquarters at his department will be set aside, copies of such papers being admissible in evidence | 530 |
| INSURANCE. | |
| A parol agreement as to the terms on which a policy shall be issued, made by a general officer of the company, will be enforced after a loss, though the charter provides that all contracts shall be in writing under seal | 356 |
| Otherwise as to a mere collateral agreement which does not involve the execution of a policy | 356 |
| A verbal agreement by a general officer of a company, which accepted part of a risk, to guaranty insurance made by other companies substituted by him for the balance of the risk, held not enforceable | 356 |
| Conditions annexed to a policy are made a part thereof by a clause in the body of the policy declaring it to be made and accepted with reference to them | 786 |
| Statements in application held to be representations, and not warranties, although application referred to the policy and contained a warranty, where no specific and distinct reference was made thereto in the policy | 318 |
| Untruthful answers to material questions relating to health and habits, made warranties, will avoid a policy, though the matters misrepresented did not contribute to assured's death | 318 |
| Declarations in response to questions as to health are representations, and the burden of proving their falsity is on the insurer | 368 |
| A statement that the applicant is in good health means that he is free from any apparent sensible disease or the symptoms thereof, and that he is unconscious of any derangement or functions by which health could be tested | 368 |
| Failure to make known slight temporary disturbances, not characterizing a dangerous disease, if not frequent and repeated, will not avoid the policy | 368 |
| The burden is upon the company to show that the death of the insured was caused by suicide, and not by accident | 654 |
| There is no presumption of law that self-destruction arises from insanity | 654 |
| The insurer is not liable in a case of suicide, unless the mind of deceased was so far deranged that he was incapable of using a rational judgment in regard to the acts of self-destruction | 654 |
| The insurer is not liable where the insured, by reason of sickness, distress of mind, or a desire to provide for his family, takes his own life, in the exercise of his usual reasoning faculties | 654 |
| When the insurer, after a fire, elects to restore and repair, the policy then becomes a contract to put the house as nearly as possible in its condition before the fire | 117 |
| Refusal of the insured to furnish a plan of the original house, so that it may be restored according thereto, estops him from complaining that the new part does not exactly correspond with the original | 117 |
| The parties may, by agreement, limit the time for bringing suit to a shorter period than that fixed by general law | 786, 788 |
| A condition limiting the time to one year after the cause of action should accrue is not against law | 788 |
| The insurer cannot avail itself of a condition that suit must be brought within a year after loss where plaintiff delayed bringing because of a promise or intimation to pay the loss | 1005 |
| A request for further proof, and a bona fide attempt to produce it, is a sufficient excuse for delay | 1005 |
| The declaration in an action by a husband on a policy issued to him without mention of his wife's ownership, claiming an insurable interest, must set out such interest, and claim damages thereto | 33 |
| A bill in equity will lie for the cancellation of a policy, payable to a third person, on the life of a person who has become so far intemperate as to impair his health, where, by the terms of the policy, it was to become void on such contingency | 300 |
| INTEREST. | |
| See, also, “Bills, Notes, and Checks;” “Usury.” | |
| Rate of interest in China | 336 |
| INTERNAL REVENUE. | |
| A distiller is liable to a tax upon 80 percent, of the producing capacity of the distillery, whether that quantity is produced or not, (Act July 20, 1868, § 20.) | 1118 |
| A distiller is relieved from the tax during a suspension of work, though the resumption be irregular. (Act July 20, 1868, § 22.) | 1171 |
| Having mash or wort on the premises during the period of suspension does not make the distiller liable to the tax | 1171 |
| Notice of intention to suspend work held not invalid because addressed to the assessor, where it was acted upon by the assistant assessor | 1171 |
| A noncompliance with the statute in regard to one interval of suspension cannot affect the question of the regularity of another suspension | 1171 |
| The failure of the assistant assessor to comply with the statute by locking the door of the furnace, and reporting the suspension, will not affect the right of the distiller | 1171 |
| Sugars remaining in the place where they were refined when Act June 5, 1794, was repealed, are not subject to duties | *692 |
| A cigar manufacturer cannot sell cigars at retail at the place of manufacture, notwithstanding he has paid the special tax required of retail dealers. (Rev. St. §§ 3236, 3387, 3397.) | 815 |
| Act 1867, terminating the income tax, does not apply to the tax on bonds, income, etc., of railroad and other corporations | 262 |
| 1219 | |
| A corporation whose business is compressing cotton is not required to pay a tax on dividends. (Act June 30, 1864, § 120.) | 623 |
| A federal court has power to prevent, by injunction, the imposition of an illegal tax under Act June 30, 1864. (Act March 2, 1833, § 2; Act June 30, 1864, § 50.) | 1079 |
| The taxpayer has a remedy by an action at law against an assessor making an illegal assessment | 1079 |
| Where a great number of persons are affected by a tax, and the remedy by separate suits in equity will involve onerous and vexatious litigation, the court will not interfere by injunction in any suit | 1079 |
| An appeal limiting the time to sue for a tax illegally collected dates from the filing of the application to refund in the office of the commissioner of internal revenue | 623 |
| INTERNATIONAL LAW. | |
| The fact of national independence may be deduced from history by courts exercising jurisdiction of international law; no explicit official recognition is necessary | 359 |
| INTOXICATING LIQUORS. | |
| Where a state statute prohibits the sale, the seller cannot recover the contract price, where the contract is made and completed within the state, though he holds a license to sell under the internal revenue act | 1170 |
| JUDGE. | |
| A judge may purchase at a sale under an execution issued on a judgment rendered in a court over which he presided | 472 |
| JUDGMENT. | |
| No actual, formal entry of judgment, on any docket or other paper, need be made by either court or prothonotary to justify the issue of final process, as on a judgment | 852 |
| Formal entry of judgment, where original docket lost, presumed after 30 years from a writing signed by defendant stating that he had confessed judgment, and from subsequent process | 852 |
| Where several damages are assessed after judgment by default, in a joint action of assault and battery, plaintiff may enter a nol. pros, against one defendant, and take judgment against the other | 305 |
| State statutes limiting the duration of the lien of judgments and decrees of the state courts apply equally to those of the federal courts | 873 |
| A judgment or decree docketed in a court of the United States for the southern district of New York is a lien on the lands of the defendant in any county of the district without the filing of a transcript | 873 |
| A decree that the title of a patent is in complainant in an action brought to determine the rights of the parties makes the rights res judicata | 349 |
| A decree of the state court declaring licenses under letters patent fraudulent and void is res judicata against defendants, and all persons acquiring rights under them, in an action by the same complainant in the federal court for infringement of the patent | 345 |
| Proceedings for partition of lands in a Georgia court during the Rebellion held not binding upon a loyal citizen doing duty as surgeon in the Union army | 1088 |
| A judgment giving plaintiff costs to which he was not entitled cannot be corrected at a subsequent term | 697 |
| The action of the court in amending its own records cannot be questioned by another court, even upon error | 852 |
| The court, after five years, allowed a judgment satisfied of record to be opened to correct errors in the assessment of damages | 868 |
| French law suspending suits for debts contracted for negroes held to apply to an action between French subjects on a foreign judgment for the purchase price of negroes | 275 |
| JUDICIAL SALES. | |
| Inadequacy of consideration is no objection to a sale under an execution, if legally and fairly made | 472 |
| JURY. | |
| All the jurors sworn must agree to the inquest on the assessment of damages | 1013 |
| Jurors cannot be examined as witnesses of each other's conduct, to prove fraud, partiality, or irregularity | 1013 |
| Act June 17, 1870, establishing a police court in the District of Columbia, is unconstitutional in so far as it provides for a trial of felonies without a jury | 1140 |
| JUSTICES OF THE PEACE. | |
| If the justice had not jurisdiction, his judgment may be reversed upon appeal, although the cause was tried by a jury | 887 |
| LANDLORD AND TENANT. | |
| A covenant to pay for improvements erected by the tenant does not constitute a lien upon the premises for their value | 270 |
| In debt by the lessor against the lessee's assignee, plaintiff need not show an assignment by recorded deed. (Act Dec. 13, 1792.) | 435 |
| Want of title in fee in the plaintiff is no bar to an action for an instalment of rent upon a lease with leave to purchase the fee simple, where defendant has not been evicted | 745 |
| LIBEL AND SLANDER. | |
| The character of one who is the constructor and manager of a proposed railroad is open to public discussion; but statements and inferences must have reasonable grounds, and not be actuated by express malice | 748 |
| That plaintiff has committed the offence of embezzlement is no defense to a libel charging that he would commit such offense if intrusted with public moneys | 413 |
| A special plea to a declaration founded upon a libel charging plaintiff personally as corrupt and dishonest, which imputes criminality only to plaintiff's clerks and employes, is bad | 413 |
| That plaintiff, as postmaster, had the appointment of his clerks, who abstracted letters and stole their contents, is no defense to a libel charging that he, by natural affinity, gathered about him scamps, and employed them to steal public money | 413 |
| That plaintiff knowingly falsified his books as postmaster to defraud the government is no defense to a charge that plaintiff is a full-blown scoundrel and knave, and, if intrusted with money, would convert it to his own use | 413 |
| The whole of the libel must be considered in determining whether the averments in the declaration are sufficient to make the libel applicable to the plaintiff | 413 |
| 1220 | |
| Libelous papers subsequently published or found unpublished in the defendant's possession are admissible, on an indictment for seditious libel, to show his intent | 746 |
| Defendant, in mitigation of damages, may give evidence of the ground of his belief of the truth of the slanderous charge | 438 |
| Liens.> | |
| See “Mechanics' Liens;” “Maritime Liens.” | |
| LIMITATION OF ACTIONS. | |
| There is no limitation as to the time within which to sue in the federal courts for damages for infringement of letters patent, congress having failed to legislate upon the subject | 133 |
| State statutes cannot limit the time within which actions for the infringement of letters patent may be brought in the federal courts | 133 |
| A bare acknowledgment of a debt within six years, without any evidence of a promise or intention to pay, will take it out of the statute | 656 |
| A statement by the debtor “that there were other bills on which his name was, and, even if he was to pay this, he could not pay all,” held an acknowledgment | 656 |
| A promise to a third person to pay a debt in a different manner from the original contract is not sufficient to take the case out of the statute | 723 |
| A promise to pay when able is conditioned, and does not revive the debt until ability to pay appears | 586 |
| Where the promise is to pay when able, and plaintiff sues before defendant is able, he cannot afterwards resort to the promise | 723 |
| The statute cannot be pleaded against a mortgage when it cannot be pleaded against a note secured thereby | 1109 |
| LIS PENDENS. | |
| The law of lis pendens is applicable only to persons whose rights were acquired after the suit was instituted against the persons under whom they claimed | 345 |
| LITERARY PROPERTY. | |
| The author's rights at common law have not been taken away or limited by any existing act of congress | 904 |
| Representation of a play upon the stage is not, at common law, a publication depriving the author of his exclusive right to control the literary production | 904 |
| No restrictive notice is necessary to spectators to secure the author's rights | 904 |
| The spectators have no right to secure the reproduction of a play by phonographic or other means independent of memory | 904 |
| The proof that a play was reproduced from memorizing it by a spectator must be so clear as to negative any other conclusion | 904 |
| The representation of a play on a stage in England, there, by statute, made a publication, cannot affect the rights of the author or his assignees at common law in the United States | 904 |
| MALICIOUS PROSECUTION. | |
| A private corporation may be liable to an action for malicious prosecution | 517 |
| MARINE INSURANCE. | |
| See, also, “Average.” | |
| The contract. | |
| A contract of insurance, made on a voyage which is opposed to the common, statute, or maritime laws of the country where it is effected, is void | 733 |
| Everything which concerns the state of the vessel at any particular period of her voyage is material to the risk | 65 |
| A written clause will control when inconsistent with the printed parts of the policy | 611 |
| All warranties, whether express or implied, constitute a condition precedent, and performance must be proved | 733 |
| Unfitness to proceed with the voyage, where no extraordinary peril of the sea has been encountered, authorizes a presumption of unseaworthiness at the time of departure requiring strong evidence to rebut | 604 |
| Sailing under a British license during the war between the United States and England is illegal | 733 |
| Deviation. | |
| What will be deemed a deviation from the voyage insured, and under what circumstances a vessel may proceed to a port out of her direct course, and for what causes she may remain at such port | 65 |
| A vessel cannot go out of her course to supply a want of men existing before the commencement of the voyage insured. | 921, 922 |
| A departure by a vessel from her course, to ascertain if those on board another vessel in apparent distress need relief, and a delay to afford such relief, though the motive of saving property also influenced the master, is not a deviation | 829 |
| Otherwise as to a departure or delay merely to save property | 829 |
| Where the circumstances are not decisive as to the motives of the master, he will be given the benefit of a favorable construction | 829 |
| Abandonment. | |
| It is the valuation fixed in the policy, and not the actual value, which governs the right of abandonment under a policy providing that the damages must amount to half the value of the vessel | 507 |
| The owner notified the underwriters that he had wired the master that, if he could not raise the vessel, he should wreck her. The underwriters replied, “All right.” Held neither an abandonment nor an acceptance of an abandonment | 507 |
| A delay of 15 days to take possession of a sunken vessel, during which time she was being wrecked, held unjustifiable | 507 |
| The owner is charged with the negligence of the master by which the damages are increased after the accident | 507 |
| The loss cannot be made total where the vessel was sold by the master without a regular condemnation upon a report of a survey ordered by an American consul in a foreign port | 604 |
| Vessel, when tendered to assured, must be in such condition as to fully indemnify insured for all the injury covered by the policy | 507 |
| The assured need not point out obvious deficiencies in order to justify his refusal of the vessel | 507 |
| Action. | |
| A sentence of condemnation in a foreign court is not conclusive | 901 |
| A survey ordered by an American consul in a foreign port, and a report of the surveyors thereon, are not evidence | 604 |
| The injury to the insured vessel must be traced to an extraordinary cause | 65 |
| 1221 | |
| MARITIME LIENS. | |
| Stevedores have no lien on a vessel for stowing or discharging a cargo | 681, 695 |
| Debts contracted in the building of a vessel do not constitute a maritime lien, and are not made such by the law of the state declaring such debts to be liens | 119 |
| There is no distinction between liens on a domestic vessel given by the local law and liens under the general maritime law | 1143 |
| An insurance company which has paid its quota for a salvage service, and made advances for the necessary repairs to the owners, who were without means or credit, have a lien to the extent of the repairs | 119 |
| Coal delivered to a foreign vessel on agreement with, and credit of, her charterers, is not furnished on the credit of the ship | 338 |
| The place of enrollment in the state in which the managing owner resides is the home port of the vessel, although a majority of the owners reside in another state | 119 |
| The law will not suffer a mechanic's claim on a vessel, for work and materials furnished, to be defeated on slight grounds, but will be astute to prevent it | 42 |
| A vessel coming from sea into an American port, and receiving repairs there, will be presumed to be liable under the general maritime law, until the contrary is shown | 11 |
| A lien arises for materials obtained on the credit of a vessel, and used in her construction, under 3 Rev. St. N. Y. c. 8, tit. 8, § 1, whether the builder obtained them in his character of owner or builder | 260 |
| The notice from the owner that supplies furnished the vessel in her home port must be exclusively on the personal credit of the master who runs her on shares will prevent a lien for supplies furnished at the master's request | 184 |
| A duebill given by the master in the name of the owner, reciting that the repairs were necessary, and that the advances therefore were on the credit of the ship, is conclusive on the owners unless impeached for fraud | 119 |
| Claims for wages earned after the boat was repaired have an equality of lien with that for advances made for repairs | 119 |
| Material man's lien for repairs under New York law held entitled to priority over claim for towage services | 1143 |
| Maritime liens arising in preparing a vessel for sea with the knowledge and consent of the mortgagee take precedence over a prior mortgage, notwithstanding the state statute gives a mortgage precedence over other liens | 882 |
| The word “port,” as used in 3 Rev. St. N. Y. c. S, tit. 8, § 1, providing that the lien shall be lost where the vessel leaves the port, etc., means the place along the shore where the supplies were furnished | 260 |
| A lien for work and material is not barred by the lapse of two years, unaccompanied by culpable or unreasonable neglect, even as against a bona fide purchaser | 42 |
| Collision claim postponed to that of a subsequent mortgage where filing of libel was delayed five years | 175 |
| MARSHAL. | |
| A bailiff appointed by a marshal, and authorized to perform a particular act, becomes a special deputy | 816 |
| The remedy against an officer for failure of duty is by an action for a false return | 583 |
| An officer is liable for malfeasance where he disposes of the property, to the injury of the defendant, without complying with the requisites of the law | 583 |
| Fees of marshal for attending examinations and bringing in and guarding prisoners before a commissioner. (Rev. St § 829.) | 816 |
| “Travel” or “mileage” is to be computed from the place where the process is returned to the place of service | 816 |
| Mileage in transporting a prisoner should be allowed only for the route usually traveled | 816 |
| Mileage allowed in each case for serving warrants on different parties at the same place where the parties in whose favor they are served are not the same | 816 |
| Rev. St § 829, adhered to as to the rule governing computation of mileage | 816 |
| Transportation fees should be allowed, notwithstanding the first name of the person arrested is wrongly given by affiant who accompanied the officer | 816 |
| The costs of transporting a guard should be allowed only where it is shown that he is necessary | 816 |
| Such costs will be allowed, even though the guards are summoned as witnesses and paid mileage | 816 |
| The expenses allowed for “traveling” must be actually proven by the marshal, deputy, or bailiff who incurred the expenses, and should be referred to specifically | 816 |
| Where more than two days are employed in making an arrest, the necessity for the extra time must be shown | 816 |
| No fees can be allowed for an arrest in another state by a marshal believing at the time that the place of arrest is within his own state | 816 |
| Where the wrong person is arrested, the marshal can be allowed no fees of any kind | 816 |
| The marshal may amend his return to process after he goes out of office. (Act Sept. 24, 1789, §§ 28, 32.) | 1017 |
| MASTER AND SERVANT. | |
| Railroad company held not liable for an injury to a brakeman standing on a freight car, caused by a wire stretched across a public street by a telephone company, of which it had no knowledge | 1127 |
| The failure of a yard master to report a wire stretched across a public street so as to endanger the lives of brakemen standing upon freight cars, will not render the company liable for the death of a brakeman who had knowledge of its existence | 1127 |
| MECHANICS' LIENS. | |
| See, also, “Bankruptcy.” | |
| The lien (in Wisconsin) attaches from the time the building was commenced or materials furnished, and is good only for articles actually used in the building, or sold for such use | 381 |
| The lien in Oregon attaches from the time the work is done or the materials are furnished, conditioned upon filing the notice within three months from the completion of the building | 637 |
| MORTGAGES. | |
| See, also, “Fixtures.” | |
| The assumption of the mortgage debt by the grantee of the mortgagor will not relieve the mortgagor from liability unless he has been released by the mortgagee | 303 |
| The acceptance of a second mortgage from the grantee will not constitute a release of the first mortgagor | 303 |
| 1222 | |
| The assignee of a mortgage takes it subject to existing equities | 531 |
| Undisturbed possession by the mortgagee for 20 years, without accounting, or any admission of the mortgagee's equity, will give him a good title in equity | 852 |
| A sale under a deed of trust may be made by the agent of the trustee | 310 |
| The trustee in a deed of trust, where there are subsequent incumbrances, cannot sell a part only of a single lot without the consent of all parties concerned | 310 |
| A sale of a single lot will not be set aside because a part would have been sufficient to satisfy the demand | 310 |
| The surplus arising from a sale under a deed of trust cannot be enjoined in the hands of a trustee to answer damages which plaintiff may recover against the debtor for not delivering up the property according to his agreement | 310 |
| The objection that proof of newspaper publication of an intention to foreclose was not shown by a copy of the newspaper cannot be made for the first time on argument | 1055 |
| Mortgagor assisting judicial sale of premises, by his signature, waiving matters of form, and surrendering possession, held estopped from asserting want of proper authority to sell | 852 |
| MUNICIPAL CORPORATIONS. | |
| Construction of clause in the Washington city charter relating to the residence of free negroes and mulattoes | 612 |
| An ordinance assuming a liability of $350,000, to be paid in semiannual installments in the course of 20 years, is in violation of a charter prohibiting the city from contracting an indebtedness exceeding $50,000 | 629 |
| The court may inquire into an ordinance providing for contracting with a railroad company for the erection of public buildings to determine whether its real object is to aid such company | 629 |
| An appropriation to construct a public building which must cost three times the sum appropriated does not impose a limitation as to the expenditures | 392 |
| A contract for the construction of county buildings held to be valid, under 49 Ohio Laws, | 130, 395 |
| A contract to construct a public building on a lot authorized by law, but which the contractors know is not adequate for such purpose, may be validated by a subsequent legislative act authorizing the building to be placed on another lot | 392, 395 |
| Where contractors for a public building are dismissed without cause before the work is completed, they are entitled, in an action for damages, to the value of the work done and materials furnished and the profits which would have accrued on the entire contract | 395 |
| Municipal bonds issued under legislative authority to aid in the erection of a private manufactory are void in the hands of holders for value | 221 |
| A municipal corporation may be enjoined from committing a breach of trust as to | |
| property or franchises held by it for the inhabitants | 629 |
| A municipal corporation will be enjoined from unlawfully issuing interest coupons, payable in installments, upon complaint of a single taxpayer, in order to prevent a multiplicity of suits | 629 |
| A court of equity has no power to restrain a municipal corporation in the disposition or management of taxes collected under a void ordinance, on the complaint of a single property holder therein | 629 |
| NAVIGABLE WATERS. | |
| The Hudson is a national highway, which may be used by all classes of boats at any speed they may think fit which does not unreasonably impair the rights of others | 1165 |
| There is no rule of law prescribing the speed a boat may use, or the swell it may make, or how near it may pass to another | 1165 |
| Steamer hield not liable for injury to a boat in a badly arranged tow from its swells in passing, where it exercised reasonable care and diligence | 1165 |
| A state cannot authorize any material obstruction to be placed in the channel of a navigable tributary of the Mississippi (Illinois river), though beyond the ebb and flow of the tide | 186, 191 |
| The state has no power to declare that a bridge with a draw of a particular width is not an obstruction | 191 |
| The state has a right to authorize the construction of bridges over navigable waters within its borders, provided they do not materially obstruct navigation | 191 |
| Notwithstanding a bridge constructed over navigable waters by state authority is an obstruction, there can be no recovery for injury to a boat in a collision with a pier if plaintiff was negligent | 191 |
| NEW TRIAL. | |
| Failure of defendant banking company to avail itself of documents in its possession because not known to one of its officers at the time of trial is not good ground for new trial | 493 |
| The jury being impaneled to try three causes, plaintiff in one of them gave evidence applicable to a case in which he was not a party, but which affected his own ease, to his advantage. Held, that new trials should be granted in all the cases | 336 |
| A motion for a new trial will not be entertained, unless the bill of exceptions taken at the trial is waived | 961 |
| PARENT AND CHILD. | |
| A father cannot maintain an action for the death of his minor son while on a whaling voyage, for which he shipped without the father's knowledge or consent, unless the person who shipped him knew that he was a minor | 1083 |
| PARTIES. | |
| If there be a covenant to three persons jointly, and a breach, and two die, the survivor may sue alone | 825 |
| An assignee of a claim may sue there for in admiralty in his own name | 11 |
| A bill of peace to restrain the collection of a tax brought by a number of persons liable therefor in the name of them selves, and for all who may come in, will not lie | 1079 |
| A person residing out of the jurisdiction of the court, though named as defendant in a bill, is, substantially, not a party to the action, till service of process or appearance | 67 |
| One whose rights will necessarily be affected by the operation of a decree in equity is an indispensable party, and the court will not proceed to a decree with out his presence | 72 |
| Otherwise where the rights of the parties before the court can be settled without affecting the rights of others absent | 72 |
| 1223 | |
| A person not an indispensable party to a bill may be omitted for the purpose of exercising jurisdiction as to others whose rights can be determined without his presence | 67, 72 |
| In an action to restrain the diversion of water by tort feasors, one of the tort | |
| feasors, who resides out of the jurisdiction of the court, may be omitted | 67 |
| The court may permit an amendment to a bill by omitting a nonresident named thereon as defendant, but not served, without prejudice to a motion for injunction | 67 |
| A person who has no interest, in a legal sense, in the subject-matter of a suit in personam, and who is not a party to it, cannot compel the plaintiff to make him a party | 64 |
| On a return of non est inventus as to one defendant and service on the other, plaintiff may proceed against the latter on a joint contract | 724 |
| The court will not allow parties whose estates and interests under a will are sought to be destroyed, on the ground of alienage and illegitimacy, to be represented by trustees, but will give them an opportunity to come in. (Rule 49) | 890 |
| PARTITION. | |
| A decree of partition does not pass anything from one coparcener to another | 361 |
| PARTNERSHIP. | |
| See, also, “Bankruptcy.” | |
| A deed executed by one partner becomes the deed of all, where the others expressly consented at the time, or agreed to it, or recognized it afterwards | 1200 |
| The acknowledgment of a debt by one partner will bind his copartner | 597 |
| One partner is not entitled to payment out of the firm assets of a debt due to him in the course of the business until all other firm debts are paid | 606 |
| In the absence of fraud, joint debts may be converted into individual debts by one partner's undertaking, for a good consideration, to pay them | 107 |
| A promise by one partner to pay all the firm debts may be enforced by the firm creditors, though not parties thereto | 107 |
| If there is no joint estate, the firm creditors may share pari passu in the separate estate | 107 |
| PATENTS. | |
| Patentability. | |
| Mechanical and design patents distinguished | 268 |
| In determining whether a patent for a combination is anticipated or infringed, the distinguishing characteristic is to be considered | 326 |
| A mere change in the angle in which reciprocating cutters work in a machine for splitting wood held not to involve invention | 316 |
| The mere change of spaces of ogee lines so that they may be used for writing paper does not constitute invention | 268 |
| Changing the location of lantern devices so that the globe may be taken out from the top, instead of the bottom, held not an invention | 1147 |
| Enlarging the chimney of a lamp so as to form a globe and a deflector held not an invention | 1144 |
| It is not invention to make the legs of a stove long enough to allow a lamp to be placed under it without touching it | 651 |
| The substitution of one kind of power for another in operating a patented machine is not invention | 797 |
| The application of old devices to a new use, but which was known and had been practiced, does not constitute invention | 651 |
| The substitution of vulcanized rubber for a surface in a steam-gauge cock, in place of a combination of metal faced with cork, leather, or soft metal, held an invention | 1126 |
| A combination of old elements is patentable if involving inventive faculties | 881 |
| A combination of old devices which produces a result different from any of its specific parts, and accomplishes the desired result with a saving of material and force, is patentable | 40 |
| Ingredients composing artificial honey held not to be considered as mere equivalents of the elements contained in the genuine honey | 538 |
| A design for a billiard table having no other novelty than a greater bevel than usual in the sides and ends is not patentable | 104 |
| The thing patented must be new, and must be useful to an appreciable extent. The measure of usefulness is not material | 326 |
| The word “useful” is used in contradistinction to “pernicious,” “frivolous,” or “worthless.” | 678, 841 |
| The test of usefulness depends upon whether the thing is capable of use for a purpose from which some advantage can be derived; not whether it is not mischievous, or hurtful, or insignificant | 897 |
| The fact that subsequent inventions have driven complainant's invention out of use does not tend to prove that it lacks utility | 385 |
| An artificial honey, being a good imitation, a new composition, and not deleterious, must be regarded as “useful and novel,” and a patent will not be denied on the ground that it will operate to aid in deceiving the public | 538 |
| A device to form a galvanic battery with the buried portion of a lightning rod, so as to facilitate its discharge of electricity, held not sufficiently useful to warrant a patent | 1066 |
| The date of the invention is the date of the discovery of the principle involved, and the attempt to embody that in some machine; not the date of perfecting the in strument | 161 |
| The invention may be fairly held to date back to the time when the inventor made models, and entered into a contract for its manufacture | 255 |
| The date of filing the application will be considered the date of an invention when it does not appear when it was perfected | 1144 |
| Who may obtain patent. | |
| Prior invention will defeat a subsequent patent, though the invention was abandoned | 161 |
| He who first discovers the thing and reduces it to actual practice is the first in ventor | 678 |
| If two persons are jointly experimenting and equally meritorious, a doubt should be solved in favor of him who first obtains a patent | 678 |
| Where two patents conflict, the more recent must give way | 161 |
| Prior public use or sale. | |
| A prior use, in a foreign country, of a thing not patented or described in public print, will not invalidate the patent to an inventor who had no knowledge thereof | 63 |
| 1224 | |
| A doubt raised by the evidence as to prior public use or sale for more than two years should be resolved against the defendant | 255 |
| Prior description. | |
| The prior printed publication must describe the thing claimed in a manner so distinct and clear as to leave no doubt that the thing described is the same as that claimed in the patent | 28, 63, 76 |
| Abandonment—Laches. | |
| The discoverer must use reasonable diligence in perfecting his idea by experiment | 678 |
| Application and issue: Interference. | |
| Various applications for a period of 20 years held to be one continuous application, and the invention not abandoned | 85 |
| The receipt of the amount paid as a fee after the rejection of the application | |
| held not to operate as a withdrawal of the application | 85 |
| The commissioner, on the application may consider the degree of usefulness. (Act 1836, § 7.) | 1066 |
| The question of usefulness of electrical appliances, in the absence of experiments, held should be determined by the application of received and approved scientific principles | 1066 |
| An applicant who has obtained the antedating of his patent is estopped to claim error in such antedating | 1069 |
| The decision of the commissioner as to the proper date in antedating a patent cannot be disturbed by a subsequent commissioner, or by the court on appeal from the latter's ruling | 1069 |
| A patent cannot be collaterally impeached for fraud in obtaining it | 841 |
| The omission of the oath and the failure to pay the fee will not render the patent void | 841 |
| On interference, the application should be dismissed where it appears that the claim has no patentable novelty, irrespective of the question of priority of invention | 136 |
| Appeal from commissioners' decisions. | |
| The new oath required by Act 1836, § 7, is not a prerequisite of an appeal from the commissioner's decision | 867 |
| If the decision of the commissioner is correct, the fact that his opinion is erroneous is immaterial | 867 |
| Extent of claim. | |
| The patentee's exclusive right is enforceable only within the limits of his own definition of his invention | 651 |
| A limit of the claim to a combination of parts concedes the parts to be old | 326 |
| The patentee will not be confined to the form of a device, where he states in his application that he does not wish to confine himself to the form shown | 568 |
| A claim for an invention too broadly specified may be amended to conform to the opinions of the patent office, and the court on appeal, as to what is patentable | 136 |
| A claim for the use of a pattern chain, or any other device for determining the design to be woven, is not invalid as being too broad | 841 |
| A patent for an improvement does not give the patentee a right to use the original machinery | 63, 161, 323, 409, 797 |
| The patentee of a machine is entitled to its exclusive use for every purpose to which it can be applied, without regard to the purposes for which it was designed | 326 |
| A patent will not cover a substance not known at the date thereof to possess properties rendering it suitable for the same purposes as the material used therein | 84 |
| Reissue: Disclaimer. | |
| Differences of description or specification between the original and reissue are consistent with the identity of the thing patented | 841 |
| Extension: Renewal. | |
| The commissioner of patents has jurisdiction of an application for an extension pending at the time of the passage of the act (May 27, 1848) conferring authority upon him to extend patents | 171 |
| The functions of the commissioner in extension cases are judicial, and his judgment settles conclusively all questions of notice | 841 |
| The decision of the commissioner is conclusive as to the regularity of proceedings on extension, in the absence of fraud | 171 |
| A notice of an application to extend the original patent is a sufficient notice of an application for the extension of a reissue | 841 |
| A reissue granted to an assignee may be extended to the patentee | 841 |
| Assignment. | |
| An agreement which operates as a transfer of a patent is good as against the patentee and those who purchase with notice, though not recorded | 366 |
| An inventor holding patents in trust for a corporation of which he is an officer, for the purpose of procuring extensions for the benefit of the corporation, will be required to make a full surrender of the patents and extensions to the corporations | 349 |
| Licenses. | |
| A mere license is not apportionable, so as to permit the licensee to grant separate rights | 342 |
| Where the licensees repudiate the license, the owner of the patent may elect either to sue upon the license or treat the licensees as infringers | 26 |
| An application to modify an injunction so as to permit furnishing the alleged infringing article to prior purchasers will be denied where defendant fails to show want of notice of a suit to annul the license under which he operated, before making the contracts in question | 342 |
| Infringement—What constitutes. | |
| The law of infringement explained and illustrated | 161 |
| A patent for a combination is not infringed by making and vending one of its Parts | 464 |
| A mechanical device, to be an equivalent of another, must accomplish the same result in substantially the same mode of operation | 323, 326 |
| The use of devices substantially like the patented device in their principle of operation is an infringement | 63 |
| There is an infringement of a patent for a process if the two products and the general mode of construction are the same as would appear by comparison of the two manufactures, though mechanical differences exist | 102 |
| A patent for a combination is not infringed by any and every combination of the same element which may produce the same result, but only by the particular combination, or one substantially the same | 841 |
| A patent for a combination is not infringed by a combination which substitutes for one of the elements another element substantially different in construction and operation, but serving the same purpose | 841 |
| The doctrine of mechanical equivalents does not apply where the patent is for a particular combination of old elements | 841 |
| 1225 | |
| One device is not a well-known substitute for another which cannot be used for it | 841 |
| Improvement upon one of the independent devices used in a patented combination of old devices is no defense to infringement | 370 |
| A mere addition to a patented invention will not justify the use of the invention first patented | 63 |
| —Who liable. | |
| The employer has the right to use an invention made by his employe by the use of the employer's time and tools, and applied in his business | 366 |
| The inventor of an improvement upon a patented machine has no right to use the original machine, nor has the original inventor the right to the improvement | 161, 323, 409, 797 |
| A person manufacturing a patented article under a license from the inventor, who held the patent in trust for a corporation, proceeds at his peril after actual notice of the claim of the corporation | 349 |
| —Preliminary injunction. | |
| Granted where complainants had enjoyed an interrupted use of their invention for 11 years, and established their patent in an action at law, and obtainedan extension, notwithstanding vigilant opposition | 385 |
| Granted where plaintiffs rights have been established in a prior case against another, though defendant be perfectly responsible and willing to give security | 322 |
| Not granted where evidence of infringement is meager, and the novelty of the invention is denied | 910 |
| Not granted where defendant licensee failed to pay his royalties, if it appear that complainant sold licenses for less than the agreed price, to defendant's injury | 912 |
| Not granted against defendants claiming to act under a patent | 279 |
| Not granted where there are conflicting statements of fact | 482 |
| Not granted where defendant has been in possession for a length of time, claiming title, or where plaintiff has not shown good faith and diligence, or where there is doubt or uncertainty as to the facts | 482 |
| When both parties claim to act under patents regularly issued, they stand on the same footing | 279 |
| Defendant may be enjoined from infringing some of the claims of a patent pending a decision as to the validity of others | 171 |
| The loss of a patent required to be recorded (Act 1793) is no excuse for delay in applying for an injunction | 482 |
| A suit against the most conspicuous and extensive infringer, brought within a reasonable time, and prosecuted with reasonable diligence, is sufficient to prevent the defense of laches as to other infringers | 76 |
| For the purposes of a preliminary injunction, defendant's machine will be regarded as identical with that of defendant in a prior case, where identity is not denied | 322 |
| A decision on a preliminary application is not of controlling right in another circuit | 573 |
| The considerations stated which apply to a case where, after a patent has been sustained on final hearing, a new defendant, in a new suit, seeks to attack the patent for want of novelty | 76 |
| Form of an order for a preliminary injunction on a patent, in a case where the plaintiff exercises his rights by granting licenses | 76 |
| Infringement—Procedure. | |
| A person may sue for an infringement of any one of the Separate and distinct inventions that may be covered by his patent | 385 |
| The declaration need not state that the proceedings preliminary to the issuing of the patent were observed | 1081 |
| A declaration which fails to set forth the attestation of the president, and that the patent was delivered, is bad on general demurrer | 1081 |
| It is no cause of demurrer that neither the patent nor the declaration states in what the improvement consists | 1081 |
| The declaration is sufficient if the breach as signed is as broad as the right set forth | 1081 |
| Licensees who repudiate the license, and stand upon the ground that the patent is invalid, cannot set up the license as a defense to infringement | 26 |
| The defense that an invention is wanting in novelty or originality goes to the validity of the patent | 63 |
| Defendant must give notice of his defense of want of novelty | 63, 104 |
| A defense that the invention involved simply substitution of one material for another, not set up in the answer, is not available | 255 |
| The construction of the language of the specification is a question of law | 326 |
| —Evidence. | |
| A presumption of utility arises from the patent itself | 63 |
| Defendants who have used the invention are estopped to deny its utility | 63 |
| The extension of a patent resisted on the ground of want of novelty strengthens the presumption that the patentee was the original inventor | 385 |
| The prima facie case of novelty arising from the patent, even if uncorroborated, will prevail over inconsistent and contradictory testimony of defendant | 897 |
| The presumption of novelty arising from the patent itself may be overcome by showing that the thing was previously known | 63 |
| Testimony as to prior knowledge and use by persons not named in the answer is incompetent | 63, 104 |
| Want of notice of the names of witnesses to prove want of novelty is waived where their evidence is taken without objection | 897 |
| Priority will not be adjudged on vague testimony, wanting in precision in respect to essential features | 569 |
| Competent testimony as to priority, not contradicted or assailed for bias or prejudice, must be accepted as true | 136 |
| The decision of the commissioner of patents is not res judicata on the question of novelty, but is entitled to the highest respect | 385 |
| No notice will be taken of defenses setup in an answer, where the burden is upon the respondent, unless some proof is introduced in their support | 409 |
| —Bond for damages, etc. | |
| Where complainant has established a right to an injunction, defendant cannot defeat it by tendering security for damages | 342 |
| —Accounting: Damages. | |
| The gain or saving arising from the use of the infringing machine cannot be applied to make up losses sustained by defendant on other branches of his business | 320 |
| In an action on the case, the true rule of damages is not the profits made by defendant, but what plaintiff has lost by the infringement | 670; contra, 63, 323 |
| —Injunction. | |
| An inventor may enjoin the use of his invention by a submarine cable company in | |
| 1226 | |
| operating a cable under an exclusive legislative grant | 82 |
| Infringement—Violation of injunction. | |
| An injunction against selling a patented “hose pipe provided with internal radial plates” is violated by the sale of new pipes with radial plates taken out of worn-out pipes | 725 |
| An injunction prohibiting defendant's using the patented article, or conferring the right to use it to others, except as to articles then in use by it, is violated by the furnishing of the article under a prior contract | 81,84 |
| Various particular inventions and patents. | |
| Amalgamating pan. Patent to Belknap for improvements construed, and held not infringed— | 464 |
| Billiard cushions. Reissue No. 2,511, for improvement in, held to be for the process of making the cushion, and not for the cushion— | 102 |
| Such patent held to be infringed— | 102 |
| Boot tree. No. 170,462, for improved boot tree, held valid and infringed | 682 |
| Boring machine. No. 170,980, for improvement in machine for boring holes in boot trees, held valid and infringed | 682 |
| Bung bushing. Reissues Nos. 5,026, 5,027, held to be infringed | 573 |
| Carriage bodies and seats. Reissue No. 4,780, for improvement, held valid | 255 |
| Circular saws. Reissue No. 8,076, for improvement, held void as being for an invention different for the original patent | 998 |
| Corsets. No. 137,893, for an improvement in corsets, held void because of prior publication abroad | 28 |
| Cotton ties. No. 19,490, for improvement in metallic cotton ties, held valid | 385 |
| Dust deflector. No. 13,676, for an improved dust deflector for railroad car windows, construed, and held infringed | 409 |
| Embroidering machine. Nos. 83,909, 83,910, for improvement, held to be infringed. | 575 |
| Fruit jars. No. 102,913, to John L. Mason, held invalid, the right to a patent having been lost by delay | 353 |
| Hair nets. No. 124,340, for improvement in ladies' hair nets, construed, andheld void for want of novelty | 1124 |
| Hat bodies. Application for patent for machine for making, rejected because of prior public use or sale | 674 |
| Insulator. No. 65,019, for an improvement in insulating submarine cables, construed, and held valid | 85 |
| Lanterns. Reissue No. 3,747, for devices for removing the globe, held invalid | 1147 |
| Lantern deflector. Reissue No. 2,765 held void, as involving no invention | 1144 |
| Looms. Reissue No. 947, for an improvement in looms for weaving figured fabrics, construed, and held valid, but not infringed | 841 |
| Machine for splitting wood. No. 12,857, construed, and held infringed | 316, 323, 326 |
| Metal tools. Application for patent for casting tools with iron bodies and steel edges denied | 136 |
| Railway switch. Reissue No. 7,690, for improvement in safety railroad switches, held valid | 436 |
| Ruled paper. No. 158,249 held invalid | 268 |
| Shawl straps. Reissue No. 4,289 held invalid for want of novelty | 897; contra, 897 |
| Steamboat staging. No. 31,147, for improvement, held to be infringed | 370 |
| Steam gauge cock. No. 13,563, for improvement, held valid and infringed | 1126 |
| Steam regulators. Patents and reissue patent to Corliss, for improvements, construed, and held valid and infringed | 561 |
| Vulcanizing rubber. “Tin foil” and “oil” patents, for improved methods, held valid | 523 |
| Well tube. No 65,648, for improved well tube, held invalid. (Reversing 731.) | 731 |
| PAYMENT. | |
| An accepted draft will not be considered in payment of an indorsed note, unless there was an express contract that it should be so received | 477 |
| Payments made by a person, on the unlawful demand of the government, as a condition of being allowed to have goods deposited in his bonded warehouse (Act 1846), are voluntary, and cannot be recovered back | 555 |
| If a debtor owing several debts fails to make application of a payment, the creditor may apply it as he pleases. In the absence of an appropriation by either, the court will make the application | 797 |
| PLEADING AT LAW. | |
| See, also, “Abatement.” | |
| A declaration for a statutory penalty which does not conclude against the form of the statute, is fatally defective— | 892 |
| A special plea of non est factum must conclude with a verification | 361 |
| A special plea which sets up several defenses is bad | 413 |
| If a plea answer only a part of the count in the declaration, it is demurrable | 944 |
| A special plea which amounts to the general issue is demurrable | 1002 |
| A plea in bar is not good if the facts stated do not constitute a bar | 1002 |
| A replication to the plea of the statute of limitations, which stated that the debt arose on an account between merchants, and that the plaintiff was beyond sea, is bad for duplicity | 722 |
| A demurrer in a case proceeded on under the civil law does not prevent the party controverting the facts confessed | 781 |
| The defense that the seizure and conversion of the property in question was an act of war is admissible under the general issue in trover | 461 |
| In the case of mutual and independent promises, the omission to state in the declaration performance of that made by plaintiff is cured by the verdict | 543 |
| In courts proceeding under the civil law, amendments in case of variance are allowed with more freedom than in courts proceeding under the common law | 781 |
| In an action on a note, if an intermediate indorsement is averred, it must be proved, although the suit is brought for the use of such intermediate indorser | 694 |
| Under an allegation of a deed by persons as partners, a deed in the firm name, executed by one partner, is admissible with proof that the others agreed thereto | 1200 |
| A note payable in sixty days, “with interest from date,” will not support a declaration upon a note payable in sixty days without interest | 694 |
| An unsubstantial variance between the note and the declaration, where the note is described in effect, will be disregarded | 258 |
| A declaration alleging the drawing of a bill by Elisha B. is not supported by proof of a bill signed by Elijah B | 720 |
| A nonsuit for variance set aside, and the declaration amended on payment of costs | 720 |
| PLEADING IN ADMIRALTY. | |
| The libel may be amended while the proceedings are in fieri and before judgment. (Judiciary Act 1789, § 32.) | 204 |
| A complaint framed under Dakota territorial laws, giving a right of action in rem | |
| 1227 | |
| for supplies furnished a vessel, held sufficient to give jurisdiction to admiralty, though requiring amendments to conform it to the practice | 204 |
| A writing should be filed containing the matter of amendment as a distinct proceeding in the case, but such writing may extend to a new draft of the libel. (Adm. Rule No. 24.) | 204 |
| Admiralty will not entertain defenses inadequately pleaded and set up for the first time by formal objection at the trial | 11 |
| How far the sworn answer of the respondent may be referred to, as in the nature of suppletory proof, or in aid of presumptions raised by other proofs in the cause | 926 |
| PLEADING IN EQUITY. | |
| A bill in equity to establish an equitable title to land, and to compel a certain person to be made a defendant, and to disclose the nature of his claim, and to account for rents and profits, held multifarious | 511 |
| A party in equity can avail himself of a material fact accruing since filing the original bill, only by filing a supplemental bill. It cannot be introduced in an amended bill | 511 |
| Complaninant is not entitled, under the prayer for general relief, to a decree inconsistent with his own statement in his bill, or not supported thereby | 310 |
| The answer of every defendant, when sufficient, must be replied to without reference to the state of the cause or of the pleadings in regard to any other defendant | 64 |
| An answer denying the allegations of the bill must be overcome by the testimony of two witnesses, or by one witness and corroborative facts | 1055, 1151 |
| PRACTICE AT LAW. | |
| The Ohio statute relating to service of copies of all writings upon which the declaration is founded applies only to actions on contract | 523 |
| Plaintiff's attorney will not be compelled to furnish a sworn statement of the residence, occupation, and present address of plaintiff, after the cause has been set down for trial | 530 |
| Defendant, at the imparlanced term, allowed to plead any issuable plea to the merits, although rule to plead expired | 1194 |
| The court will, on affidavit, reinstate a cause non prossed on a rule for security for costs where plaintiff's attorney died in the meantime, and no rule was served on him to employ new counsel | 385 |
| Oyer of the record of a judgment of another state will not be given if not prayed before the expiration of the rule to plead | 946 |
| After oyer, and issue on the plea of payment, the plaintiff is not bound to again produce the bond | 1190 |
| PRACTICE IN ADMIRALTY. | |
| Objections to a libel for want of specific allegations of fault should be taken by exceptions, and, if taken at the hearing, an amendment will be permitted | 59 |
| In admiralty the principal cannot be surrendered in exoneration of bail | 979 |
| A party is entitled to be discharged from a bail bond or stipulation in admiralty only on grounds which at law or in equity would avoid a common money bond, or entitle him to be relieved from it | 979 |
| The obligations of the sureties of a vessel are not increased by amending the libel by increasing the amount claimed | 1194 |
| Subcharterer allowed to pay freight moneys into court to abide decision of contest between owner and charterer as to claim for demurrage in which he is not interested | 520 |
| Money or goods in the hands of the marshal by order of this court are subject to any further order of court | 641 |
| An objection to the regularity of a commissioner's report cannot be brought forward by exception to the report, but should be raised by motion founded upon the irregularity | 179 |
| An exception to a commissioner's report draws in question only the reasons upon which the report is founded | 179 |
| A motion for leave to take further proof will be refused persons who have shown themselves unworthy of trust | 931 |
| PRACTICE EST EQUITY. | |
| Since the amendment of equity rule 18, a final decree may be taken at any time after 30 days after the bill is taken pro confesso | 341 |
| A motion for a new trial of a feigned issue must be heard on the merits of such issue singly, and cannot be affected by the equities arising on the bill and answer | 16 |
| Such motion must be disposed of before the cause will be heard on bill and answer | 16 |
| The practice as to enlarging plaintiff's time to take proofs, when the state of the cause and of the pleadings differs as to different defendants, stated | 64 |
| PRINCIPAL AND AGENT. | |
| See, also, “Factors and Brokers.” | |
| The fact that an agent to compromise returns different terms from creditors than those submitted does not make him their agent | 982 |
| There is no binding obligation where the principal fails to ratify an agreement made by his agent with the understanding that it should be submitted for ratification | 169 |
| A recognition of the acts of an agent by his principal is equivalent to an original grant of authority | 282 |
| The principal will be bound by an adjustment of a controversy by the agent in which he exceeded his powers, if he does not repudiate it within a reasonable time after knowledge thereof | 169 |
| A purchaser held not bound by knowledge of fraud by his agent who made the purchase | 1014 |
| Where an agent's orders are to sell “immediately on arrival,” and forward returns by the same vessel, he has no discretion, but must sell at once, no matter at what loss | 644 |
| The acceptance of a return cargo, ordered by the same vessel, is no ratification of the agent's disobedience of the order to sell the outward cargo immediately on arrival | 644 |
| A disobedience of orders is excused where the principal remains silent after full and candid statement of all the facts by the agent | 644 |
| An agent to pay taxes on the land of his principal cannot acquire a valid title on tax sale | 1014 |
| Compensation to an agent for the sale and management of estates, the property of absent proprietors, remitting proceeds of sales, and performing all the duties of such an agency | 229 |
| PRINCIPAL AND SURETY. | |
| Sureties of claimant in admiralty proceedings become principal debtors after final judgment against them, and are not discharged | |
| 1228 | |
| by extension of execution against claimant. (Act March 3, 1847.) | 151 |
| The surety on a bond given by a partnership to an insurance company, conditioned for the faithful performance of the duties of the firm as agents, and to pay the amounts received by the firm, is not liable for amounts received after the dissolution of the firm by death of one partner | 299 |
| The summary remedy given in Virginia by a motion against a cosurety is confined to the court which rendered the original judgment | 1107 |
| Bonds were advanced in payment for building a railroad on security given to apply the proceeds to the construction. Held, that it was a question for the jury whether the goods purchased with the proceeds belonged to the contractor or the surety | 254 |
| PRIZE. | |
| The law of prize is a part of the law of nations, and by it hostile character of trade does not depend upon the character of the trader who pursues it | 305 |
| Belligerents have no right, unless secured by treaty, to sell their prizes in a neutral port | 360 |
| Proof that the claimant is a citizen orally of the enemy country will authorize condemnation | 305 |
| Notice to the master of a prize suit against the vessel is notice to her real owner, making him a party | 1024 |
| Where no claimant appears upon return of the monition, the proctor of the captors may move for a decree upon the evidence as it appears on the record | 305 |
| A claimant will not be allowed to inspect documents found on board a prize until his claim and evidence are put in | 931 |
| The claimant of a vessel seized as prize is bound to see that the papers of the vessel are true papers | 1024 |
| The claimant of record to whom the property is ordered to be delivered on sentence of acquittal holds the same in trust for the true owner. The decree is not conclusive as to ownership, even as against the person procuring its rendition. (Reversing 1024.) 1043 | |
| The cargo of a prize vessel, suffering deterioration from exposure, ordered to be sold, and the proceeds paid into court | 803 |
| To constitute a violation of blockade, there must be the existence of the blockade, a knowledge thereof, and a running of the same with a cargo laden after the commencement of the blockade | 305 |
| A vessel documented as neutral, condemned as enemy's property, and for an attempted breach of blockade | 931 |
| PUBLIC LANDS. | |
| All mineral lands were reserved under the compact with the state (Michigan) to give it section 8 for school lands | *487 |
| The right to any particular tract under the grant to the state of Michigan of section 16 for school lands (Act June 23,1836) did not exist until a survey was made; and, if such section be found to contain minerals, another section must be selected | *487 |
| A patent may be avoided at law for fraud only where it relates to the issuing of the patent | 487 |
| Objections held removed by further testimony taken in the court on appeal from land commissioner | 1142 |
| QUIETING TITLE. | |
| Equity will entertain jurisdiction to remove a cloud upon title only where the instrument, etc., complained of, is valid upon its face | 629 |
| RAILROAD COMPANIES. | |
| An agreement between connecting lines to jointly regulate transportation rates is not an abandonment or transfer of the franchise of either | 193 |
| Legislative authorization will prevent enjoining construction of elevated railroad in street as a nuisance | 990 |
| Erection of posts for elevated railroad in street not enjoined at suit of abutting owner not showing title to the soil in the street | 990 |
| Acts N. Y. April 22, 1867, and June 3, 1868, relating to construction of elevated railroad in New York City, are not void as containing a delegation of legislative authority | 990 |
| Act Ga. Dec. 3, 1866, was designed to protect the state from loss by indorsement of railroad bonds, and did not make the state a trustee for bondholders | 974 |
| Railroad aid bonds issued under Act Mo. Jan. 11, 1860, held valid in the hands of an innocent holder, although they were not sanctioned by popular vote, and the payee, at the time, was not a corporation de jure | 1191 |
| After proof of fraud in the issue of negotiable railway aid bonds, plaintiff must show that he is a bona fide holder for a valuable consideration | 1000 |
| Where the bonds recite the act under which they were issued, purchasers are bound to inquire whether the provisions thereof were violated in their issue | 1000 |
| A provision prohibiting the obligee putting bonds in circulation at less than par is not violated by the obligee receiving them at less than par after they were put out at par | 1000 |
| Where such bonds are sold by the railroad at less than par, in violation of the statute recited in the bonds, a subsequent bona fide purchaser can recover thereon only the amount at which the company sold them | 1000 |
| The legislature has power to validate municipal aid bonds defectively issued | 491 |
| Recitals in the bonds will not affect one who purchased for value after a validating act | 491 |
| A statute legalizing municipal aid bonds held to validate all bonds originally exchanged at par for stock, unless the subsequent purchaser had notice of illegality of their issue, and did not part with value | 491 |
| The right of a purchaser, for value, of coupons of municipal aid bonds, to be considered a holder in good faith, is not affected by knowledge that the town contests its liability | 491 |
| RECEIVERS. | |
| A receiver will be appointed in all cases where the interest of the parties seems to require it | 753 |
| The facts essential to the appointment of a receiver need not be pleaded, but may be shown by affidavit at the hearing. A prayer for a receiver is unnecessary | 214 |
| Radical changes in the condition of railroad property in the hands of a receiver not permitted pending an appeal of the principal cause | 660 |
| A receiver cannot be called on to account before any court but that which appointed him | 279 |
| Exceptions to master's report on a reference of a receiver's account are unavailing unless first made before the master | 660 |
| 1229 | |
| But the court may direct an account to be reformed where there are manifest errors or clearly improper charges | 660 |
| The master in such case acts in place of the court in a judicial, rather than a ministerial, capacity | 660 |
| If he adopts an erroneous principle, the court, on petition, will refer the matter back to him for correction | 660 |
| The duties of receivers as to outlays in the management and operation of a railroad, allowances therefor, and for counsel fees and services, considered and determined | 660 |
| The compensation of a receiver must be graduated by his duties and the responsibilities of the office, and not by the amount for which another competent person would have done the work | 660 |
| RECORDS. | |
| Printed exhibits allowed to be taken from the files, and annexed to a commission, on filing photographic fac similes in lieu thereof | 1132 |
| RELEASE AKTD DISCHARGE. | |
| A release from the assignee of a chose in action is a bar to an action by the assignor for the same cause of action | 1107 |
| The administratrix of a joint owner of a vessel will be bound by a settlement and release of all claims and demands between the parties, unless she show that she did not understand the transaction | 896 |
| REMOVAL OP CAUSES. | |
| Right of removal. | |
| A contest in regard to the distribution of a decedent's estate is a removable “controversy.” (March 3, 1875.) | 736 |
| Where the construction of a law of congress is involved, it does not alter the case that there are other Questions which do not depend upon the laws of congress | 313 |
| A suit in the state courts to enforce a vendor's lien, where the defense is that the land was sold to defendant by the assignee in bankruptcy of the maker of the notes constituting the lien, is removable as involving the construction of federal law | 313 |
| The fact that plaintiff and garnishees are citizens of the same state will not prevent a removal, garnishees not being parties to the suit | 415 |
| A cause once tried, but pending for retrial when Act March 3, 1875, was passed, is removable | 758 |
| The cause may be removed where the parties are citizens of different states where the petition is filed, though not such when the suit was brought. (Act March 2, 1867.) | 415 |
| Rev. St § 639, subd. 3, giving the right of removal on the ground of prejudice or local influence, is not repealed by Act March 3, 1875 | 431 |
| Time for removal. | |
| A contest in regard to the distribution of a decedent's estate cannot be removed after an appeal has been taken from the court of original jurisdiction | 736 |
| A suit against a citizen of another state may be removed by petition filed at any time before trial or final hearing, on making an affidavit of prejudice or local influence | 431 |
| No citizen of a state in which a suit is commenced can remove it except by filing a petition either before or at the term at which it might first be tried. (Rev. St. § 639, subd. 3; Act March 3, 1875.) | 431 |
| Proceedings to obtain. | |
| The filing of a petition and bond in due time and in due form removes the cause, ipso facto, if the cause is removable | 313 |
| No order of the state court accepting the petition and bond is necessary to remove a cause | 214 |
| The petition under the act of 1875 is not required to be sworn to | 313 |
| A state court clerk made up the record in detached papers, certifying to each one, and also that the papers constituted the whole record. held a sufficient “copy of the record” | 214 |
| The United States circuit court has no power to issue a writ of mandamus to compel the removal of a cause from a state court | 840 |
| Effect of removal: Subsequent proceedings. | |
| The filing of an imperfect transcript of the state court record is no ground for remanding the cause | 415 |
| On a motion to remand, the burden of proof is upon defendant corporation to show that it was not a citizen of the same state with plaintiff | 501 |
| After the proper proceedings for removal are taken, the federal court has jurisdiction to grant a provisional remedy before the term at which the parties are required to enter a copy of the record | 214 |
| REPLEVIN. | |
| The return of an United States marshal is conclusive of the facts which it sets forth, and its truth cannot be collaterally impeached | 753 |
| Property replevied does not pass into plaintiff's possession after his bond has been accepted by the officer, until formal delivery by the officer | 753 |
| SALE. | |
| See, also, “Vendor and Purchaser.” | |
| On a sale of goods for cash or satisfactory paper, delivered upon condition that the contract should be complied with, title does not pass until performance by the purchaser | 513 |
| Payment of freight on and receipt of goods sold by sample, where the purchaser had no previous opportunity to examine them, will not estop him from refusing to accept the goods for failure to comply with the warranty, and he may recover back the freight and money paid | 335 |
| Goods consigned to the purchaser after his death cannot be reclaimed by the seller after they have been received by his administrator, on the ground of insolvency at the time of the sale, in the absence of fraud | 377 |
| The right of the seller, in cases of insolvency, to stop goods for nonpayment of the purchase money, is confined to cases where the goods are still in transitu to the vendee. | 377 |
| The delivery by one of the parties to a joint venture in the purchase and sale of wheat to a prior purchaser from him held to pass the title, and the right of estoppage in transitu thereafter exercised by him held to be for his own benefit | 248 |
| In an action for the purchase price, defendant need not show an offer to return the property, where he proves fraud in the sale | 1078 |
| 1230 | |
| SALVAGE | |
| Right to salvage compensation. | |
| The towing of a steamer with broken shaft 731 miles, to port in good weather,held a salvage service | 144 |
| The act of the master of a steamer in signaling and informing a rescuing vessel of the wreck held a salvage service | 917 |
| Meritorious services rendered by a tug in New York harbor in saving a vessel beset with ice are not in the nature of salvage services | 765 |
| A libel against such vessel and cargo dismissed against the cargo, but reasonable compensation decreed against the vessel | 765 |
| A purchaser on an illegal condemnation cannot claim salvage for having brought the vessel within the power of her former owners | 625 |
| Services in piloting a vessel after she had worked off a shoal, through a narrow, intricate and unmarked channel, to open water, and in pumping during the passage, are in the nature of salvage services | 995 |
| The fact that the assistance rendered might not have been actually necessary does not prevent it being a salvage service, if rendered while the vessel was in such aperilous position as to excite apprehension for her safety | 647 |
| Salvors are not entitled to compensation for unsuccessful effort | 995 |
| The master and crew of the salvor vessel are entitled to salvage, though both vessels belonged to the same owner, in the absence of a contract, usage or understanding that no salvage claim shall be made in such case | 98 |
| The owners of the cargo of the salvor vessel detained in rendering the salvage service are entitled to compensation from the vessel to which the services are rendered, for loss arising therefrom | 144 |
| A salvor is not entitled to compensation for labor and injury after he is informed that the property is not derelict | 909 |
| A disabled bark anchored is not derelict during the absence of a salvor vessel for a necessary and temporary purpose | 859 |
| But a person finding the vessel in the meantime, and in good faith taking possession, and by his exertion contributing to its preservation, is entitled to salvage remuneration | 859 |
| Contracts for salvage services. | |
| A contract for contingent compensation fairly made will be recognized in admiralty as creating a valid lien | 119 |
| An agreement made in distress at sea is void, and the amount of salvage may be fixed by the court | 668 |
| Where the sum stipulated in a contract for contingent compensation is unreason able because of overvaluation of the vessel it will be reduced by the court | 119 |
| As against prior lien holders, a contract for contingent compensation will be enforced only to the extent of an equitable allowance | 119 |
| Forfeiture or reduction of salvage. | |
| The share of the officers and crew of the salvor vessel held forfeited by acts of plunder committed by the crew | 859 |
| Error of judgment in not saving property liable to rapid deterioration is ground for reducing salvage, but not for withholding all compensation | 994 |
| Salvors having no means of saving a cargo of cotton but by rafting have no right to exclude others having vessels on the spot from participating in the salvage service | 261 |
| Amount. | |
| Unsuccessful efforts may be considered in fixing compensation for subsequent successful efforts | 995 |
| Compensation will be made for increased labor due to the size of the salvor's vessels, where they used their best efforts | 994 |
| The amount of salvage is not increased by the fact that a large number of vessels and persons were employed | 917 |
| More than half will never be given | 886 |
| A moiety awarded where boxes of wearing apparel were picked up in a heavy sea at some risk | 1007 |
| A moiety of the net proceeds of vessel and cargo allowed where found abandoned, on Bahama bank, and with great labor and danger brought to New York | 259 |
| Six per cent, of $38,000, the value of the ship and cargo, allowed salvors standing by a vessel in peril, and relieving her of part of cargo | 647 |
| Eight per cent, allowed first salvors on the value of the cotton saved by the second set for saving it from fire by scuttling or cutting a hole in the side of the ship | 261 |
| Nineteen per cent, awarded on $123 000 worth of cargo saved by 152 men working 13 days | 917 |
| Forty-seven per cent, awarded on cargo saved, valued at $29,153 | 523 |
| Fifty-five per cent, allowed where sugar was saved from hold of abandoned vessel by great labor | 994 |
| $2,500 allowed for piloting vessel, worth, with cargo, about $150,000 | 995 |
| $4,500 awarded where the vessel saved was worth, with cargo, $70,000 | 859 |
| $5,400 awarded for placing navigator aboard a vessel valued, with cargo, at $95,000, found in the middle of the Atlantic without a navigator | 1108 |
| $10,000 awarded to a vessel valued, with cargo, at $242,000, for towins into port vessel valued, with cargo, at $244,000, in favorable weather, and by a loss of four days' time | 609 |
| $10,000 awarded for services in towing, in fine weather, a steamer with broken shaft, worth, with cargo, $480,000, by a vessel worth, with cargo, $220,000, detained two and a half days in rendering the service | 144 |
| Remedies for recovery. | |
| A salvage service has priority of lien over claims for wages earned and supplies furnished prior thereto | 119 |
| Salvage on a recapture by a public vessel of war can be ascertained only by a sale, unless an appraisement is consented to | 892 |
| Apportionment. | |
| In cases of extraordinary merit or extraordinary peril to the rescuing ship, the owner should be allowed a moiety of the salvage | 950 |
| Owners of large steamer with valuable cargo held entitled to three-fifths of the award | 1094 |
| SEAMEN. | |
| Protection and relief. | |
| If less than the statutory quantity of all three articles (water, meat, and bread) be provided, and there be a short allowance of all, triple wages are given for eachday | 134 |
| The recovery of such penalty does not necessarily preclude the seaman from recovering damages, also, for a deficiency of other provisions | 134 |
| One-third additional wages held sufficient compensation where there was a deficiency in but one of the specified articles | 62 |
| 1231Wrongfully withholding suitable medicines from a seaman, or wrongfully setting him ashore in a foreign country, are violations of the contract | 763 |
| Seamen discharged at the home port, without payment of any portion of their wages, the amount of which was not disputed, held entitled to recover double pay for 10 days, although their suit was brought within 10 days from the discharge. (Act June 7, 1872.) | 172 |
| The contract of shipment. | |
| The law maritime will control the mariner's contract, in the absence of evidence as to the law of the place where it was made and to be performed | 643 |
| Rev. St. § 4535, is inapplicable to shipping articles made in a foreign port, relating to a foreign vessel | 643 |
| The contract must be in writing where the vessel is engaged in a general coasting and trading voyage between ports in different states. (Act July 20, 1890.) | 926 |
| Where the seaman ships on such a voyage on oral agreement, he is entitled to the highest rate of wages paid at the port of shipment | 926 |
| Where a seaman ships on a general trading voyage without limitation of time or a fixed terminus, either party may put an end to the contract at pleasure, where the time or circumstances are not particularly inconvenient or injurious | 926 |
| Parol evidence on the part of a seaman is admissible to vary or contradict the shipping articles | 1104 |
| A stipulation not to demand wages before a certain time is void where the service is completed, or the seaman discharged, before the expiration of that time | 1104 |
| A seaman injured in the service of a ship is entitled to his wages until the end of the voyage | 606 |
| A mate's refusal, after 21 hours on duty, and going to bed, to turn out, after two hours' sleep, to help take the vessel out of port, held not sufficient to justify his discharge | 562 |
| Conduct of master or mate in respect to seamen. | |
| Punishment must be moderate, administered in a proper manner, and proportioned to the offense | 1070 |
| Where a quarrel between the master and mate is made up on the advice of the consul, where both were at fault, the court will not afterwards interfere | 583 |
| Act La. 1842, No. 123, prohibiting colored seamen belonging to domestic vessels being brought in such vessels into the ports of that state, is unconstitutional | 1102 |
| A seaman imprisoned at New Orleans under such statute cannot recover damages of the master therefore | 1102 |
| Such seaman is not liable for the prison expenses paid by the master, as required by the statute | 1102 |
| Wages——Right to. | |
| The last port of lading of a cargo made up at several ports is that to which wages should be paid, where the vessel is captured on her homeward voyage | 762 |
| The port to which a vessel may proceed, and land her cargo, after being turned from her port of destination because of blockade, is to be considered as the port of delivery | 762 |
| Proof merely that the mate shipped for a share of the profits will not sustain an allegation of a partnership between the master and mate | 926 |
| It is improper to require of a seaman a receipt in full of all claims, as a condition of the payment of his wages | 208 |
| Wages—Remedies for recovery. | |
| A seaman is entitled to his wages immediately upon his discharge, and may sue at once therefor if payment be refused | 133 |
| The right to resort to the vessel for wages is consummated on the legal dissolution of the seaman's connection with the vessel | 1104 |
| A seaman cannot sue in rem for wages in the port of delivery until 10 days after the cargo is discharged, unless the vessel is about to proceed to sea. (Act July 20,1790, c. 29, § 6.) | 1104 |
| The statute which precludes process against the vessel until 10 days after the discharge of the cargo (Act 1790, c. 29, § 6) does not affect his right to proceed in personam | 208 |
| A demand of wages, and a refusal by the owner to pay till after 10 days, does not constitute a dispute, within the statute, so as to authorize process in rem before the expiration of the 10 days | 208 |
| The lien for wages continues after the wreck of the vessel, subject to salvors' liens | 119 |
| By the law maritime, a mariner, by an agreement understandingly made in a proper case, may waive his lien | 643 |
| The lien for wages cannot be enforced on freight money paid to the master before notice of the claim | 281 |
| The lien cannot be enforced against freight notsought to be charged in the libel | 281 |
| All the seamen suing in personam for wages earned on the same voyage need not unite in one action. (Act June 20, 1790.) | 127 |
| Seamen are competent witnesses for each other in suits for wages earned on the same voyage | 1104 |
| Where several seamen unite in an action in personam to recover wages, a seaman recovering less than 850 can tax full costs, and enforce his decree by execution, where the decrees for the others are appealed | 127 |
| In the absence of proof or allegation of a tender of wages due, which were paid into court after libel filed, the seaman will be entitled to costs | 606 |
| —Deductions: Extinguishment, etc. | |
| A master who, by the authority of his crew, paid their debts for which he was arrested, may deduct the amounts from their wages, but not the costs incident to the arrest | 34 |
| A seaman arrested and imprisoned in a foreign port is not a deserter (Act 1790) so as to forfeit wages due at the time of the arrest | 610 |
| The mate forfeits his wages where goods are lost by his negligence | 308 |
| Although part of the embezzlement is fixed on, and paid by some of the crew, yet all are to contribute to the residue, master, officers, and absent sailors joining in the contribution | 744 |
| SET—OFF AND COUNTERCLAIM. | |
| In an action brought in the name of the assignor, the defendant may set off a debt due from the assignee | 601 |
| In an action for negligence in keeping plaintiff's sheep, founded on breach of a special contract, defendant cannot have deducted compensation under the contract | 920 |
| SHIPPING. | |
| Where the title of a vessel could not be determined pending accounting between the parties, possession was awarded to the master, who was part owner, on his own stipulation | 654 |
| 1232 | |
| An agreement as to title and possession of a vessel will govern the rights of the parties, rather than prior shipping articles made on the same day | 643 |
| Foreign attachments are not proceedings in rem, and the sale of a vessel on adjudication therein will not give the purchaser a title superior to that of a prior mortgagee | 47 |
| SLAVERY. | |
| The promise of a slave does not bind him when free, although it be to pay for his freedom, or for money borrowed to obtain his freedom | 361, 791 |
| A recovery cannot be founded upon an acknowledgment of debt after emancipation | 792 |
| A power to sell cannot be inferred from a power to hire out a slave and receive his wages | 1150 |
| Where freedom was granted a slave, provided “he behaves well until the year 1837, and continues to hire for good wages,” it may be shown that he did not behave well, but ran away | 496 |
| Trover will not lie in Iowa to recover the value of slaves | 1112 |
| A list of slaves in which one is designated “Jo” is not a sufficient designation of sex | 778 |
| Importations are forbidden by Act Md. 1796, c. 67, § 1 | 1150 |
| SPECIFIC PERFORMANCE. | |
| Specific performance will not be decreed at the instance of the vendor of property greatly deteriorated in value, where he has been guilty of gross negligence | 470 |
| The representatives of a deceased vendee, who has received the consideration of a purchase, are bound to use reasonable diligence in executing a conveyance | 470 |
| STATES. | |
| See, also, “Navigable Waters.” | |
| Proper boundaries of New Jersey on the Delaware river under the original grants and the treaty of peace | 546 |
| Proper boundaries of Cumberland county, in New Jersey, on the Delaware river | 546 |
| STATUTES. | |
| A statute legalizing a special election to authorize the issuing of municipal bonds to aid a private enterprise held in violation of Const. Kan. Art. 12 | 221 |
| Persons will be charged with a violation of the penal provision of trade laws, of which previous notice is not brought home to them, only from the time they are received by the collector of the district | 620 |
| Both the title and preamble of a statute may be considered in its construction in doubtful cases | 501 |
| The law does not favor the repeal of statutes by implication. The two must be such as that they cannot be reconciled | 431 |
| The repeal of a usury law which forfeited all interest upon a usurious contract leaves the contract in full force according to its terms | *1109 |
| The adoption thereafter of a constitution imposing penalties for usurious contracts can have no effect upon such contracts | 1109 |
| TAXATION. | |
| A state legislature has no authority to authorize taxation in aid of private enterprises | 221 |
| The capital stock of a national bank cannot be assessed, as such, by state authority, but the shares may be assessed to the individual holders | 118 |
| The purchaser from a person holding only a tax title has the burden of maintaining that such title extinguished the patent title, which, as to him, is an adverse claim | 1014 |
| Equity will not cancel a tax deed where there has been no fraud practiced against the owner of the land, and no substantial injustice done to him | 729 |
| TOWAGE. | |
| The liability of a tug guilty of negligence is not diminished by the fact that another vessel, not joined in the action, was equally in fault | 1099 |
| Tug held liable for injury to tow in collision when rounding a high dock which shut off view of approaching vessels | 1099 |
| TRADE-MARKS AND TRADE-NAMES. | |
| The names on fruit jars, “Mason's Patent, Nov. 30th, 1858,” “Mason's Improved,” and “The Mason Jar of 1858,” held not entitled to protection because having a tendency to mislead the public, a patent therefor having been adjudged invalid | 339 |
| The designation “The Mason Jar of 1872” held not open to the same objection | 339 |
| A trade-mark is infringed, no matter how vague the resemblance, if the imitation is so close that the purchasers, exercising ordinary caution, are liable to be misled | 341 |
| The use of a monogram in the same manner and with accessories in imitation of Plaintiff's trade-mark held to be an infringement | 341 |
| Delay in making the application is no bar to a preliminary injunction, although it may preclude complainant's obtaining past profits | 341 |
| TRESPASS. | |
| Either actual or constructive possession, as well as general or constructive property in a thing, at the time of the injury, is essential to maintain trespass or trover | 546 |
| TRIAL. | |
| Plaintiff may read his books in evidence where, being called for by defendant, they are inspected by him, or retained without objection | 492, 597 |
| A party whose books have been called for and inspected by his adversary may show by a witness that they contain no entries relating to the matter in controversy | 493 |
| Plaintiff cannot read his own statement of his account current as a statement of the particular items of his claim | 791 |
| A subpoena duces tecum will not be ordered to compel the clerk of another court to produce original paper | 731 |
| The construction of unwritten laws or usages of foreign countries, when duly proved, is for the court | 336 |
| The court may give an opinion upon the weight of evidence | 336 |
| The court is not bound to give an opinion instanter, on the trial of a cause, but may direct the point to be saved by a special verdict | 901 |
| Either a verdict or judgment cures a defective venue | 823 |
| A verdict for a specific sum in debt for a penalty, where the statute gives the double value, is to be considered as the double value, unless the contrary appear | 892 |
| Where the statute gives double or triple damages, a general verdict will be deemed | |
| 1233 | |
| 6FED.CAS.—78 | |
| for single damages, unless the contrary appear, and the court will double or treble them; but a verdict may be found for double or treble damages | 892 |
| TROVER AND CONVERSION. | |
| General property in the goods without actual possession, is sufficient to maintain trover | 449 |
| An agreement to sell and transfer goods seized and held as a distress for rent due from the vendor will transfer the general property | 449 |
| TRUSTS. | |
| An unexecuted trust for the benefit of one for life, and on his death for the heirs of another, cannot be separated into distinct trusts | 1007 |
| The cestui que trust will not be deprived of a proper allowance for maintenance and education to enhance the contingent estate of another, where the trust allows an expenditure of the principal for such purpose | 1007 |
| An action at law will not lie by a successor of a deceased trustee against his administrator to recover the trust fund | 1007 |
| A trustee whose title is derived solely by act of the law cannot sue in another state without having his appointment repeated by the local tribunal | 1007 |
| A trustee deriving title from a will must prove the will in the local jurisdiction before suing to recover a trust fund in the hands of a person therein | 1007 |
| The burden is upon a trustee for creditors who claims that a purchase by a co-trustee in his own name, on a sale to enforce payment of a judgment recovered by the trustees, was made by the cotrustee as trustee, to show that fact | 1055 |
| A cotrustee purchased in his own name an equity of redemption sold to enforce payment of a judgment recovered by the trustees. Held, that a purchaser from him obtained a good title | 1053 |
| USURY. | |
| Where notes drawn, dated, signed, and indorsed at Philadelphia, where the drawer and indorser resided, were delivered and discounted in New York at a rate of interest which rendered the notes void for usury under the New York law, the indorser is not liable | 333 |
| A charter silent as to the effect or penalty if more than the charter rate of interest be taken, renders a contract void only as to the excess of interest stipulated | 1179 |
| The acceptance of a greater rate of interest than allowed by the law of the state renders a national bank liable to pay back twice the amount of interest paid | 827 |
| The assignee in bankruptcy of a person who has paid to a national bank a greater amount of interest than that allowed by law is his “legal representative,” within Rev. St § 5198, allowing a recovery of twice the sum paid | 827 |
| VENDOR AND PURCHASER. | |
| See, also, “Frauds, Statute of.” | |
| The vendor is bound to make and tender the deed | 470 |
| Where, through negligence, the vendor cannot compel specific performance, the vendee may disaffirm the contract, and recover back the money paid. A demand for a deed is not necessary | 470 |
| A tract of land supposed to contain sixty million of timber was found to contain but five million, there being a mistake in the exploration. Held, that the conveyance must be rescinded, and the purchase money restored | 1151 |
| On the rescission of a conveyance for gross mistake, the purchasers cannot avail themselves of an agreement between the sellers, who divided the purchase-money notes, to jointly bear any losses sustained | 1151 |
| The effect of possession of land, as constructive notice of title, cannot be extended to lands, outside the limits of the possession, claimed by another under the same title | 1109 |
| Where a purchaser has notice of the facts upon which an adverse claim depends, he is deemed to have notice of the consequences of those facts | 1088 |
| A purchaser under a contract for a deed is not protected as a bona fide purchaser, though he has paid the consideration | 1014 |
| One making payment of purchase money in Confederate notes in a Confederate state during the Rebellion is not a bona fide purchaser for value, entitled to equitable protection or relief in the federal court | 1088 |
| The lien of a judgment creditor without notice, in Texas, is superior to the unrecorded deed of a vendee of the judgment debtor | 1109 |
| The lien of a bona fide mortgagee is superior to the unrecorded deed of a vendee of the mortgagor | 1109 |
| A deed of lands to a purchaser without notice, duly recorded, cuts off any claim thereto founded on a resulting trust | 1109 |
| No defenses against a mortgage taken, without notice of any outstanding equitable title, from one holding the legal title duly recorded, are open to the equitable owner, which cannot be made by the holder of the legal title | 1109 |
| As between the owner of land whose agent to pay taxes acquired a tax deed, and a purchaser from such agent who acted through an agent having notice of the fraud, the equitable right of the original owner will prevail | 1014 |
| WAR. | |
| See, also, “Prize.” | |
| Alien enemies—Rights and disabilities. | |
| The rules of the common law in cases of alien enemy do not apply with the same rigor in courts acting under the general laws of nations | 778 |
| An alien enemy beneficially interested in a suit cannot support it in the name of a neutral trustee unless the subject-matter arises out of a trade licensed by the government in whose courts redress is sought | 778 |
| Contracts made with an alien enemy are lawful if arising out of the trade carried on under license of the government, if the enemy be in the hostile country by license of the government, or if the contract be a ransom bond | 781 |
| Contracts made by prisoners of war, in the enemy's country, for subsistence, are binding | 781 |
| A vessel may be hypothecated by the master in an enemy's country for money advanced to return to the home port | 781 |
| Contracts made for equipping and fitting a cartel will be enforced in the courts of either belligerent having jurisdiction | 778 |
| Confiscation. | |
| A belligerent has the right to take such course, and impose such conditions, with | |
| 1234 | |
| regard to the confiscation of enemies' property, as it sees fit | 270 |
| The constitutional provision that “no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted,” does not apply to the confiscation of rebels' property. | |
| (Act July 17, 1862.) | 270 |
| A proceeding under the confiscation act (July 17, 1862) is not a criminal proceeding | 270 |
| Such proceedings are in rem, conforming to proceedings in admiralty or in revenue cases, according as the seizure is on water or on land | *270 |
| Issues of fact raised by the claimant of land or property seized on land are to be tried by jury | 270 |
| When no answer is filed, judgment by default may be taken, and the court may proceed to ascertain the material facts in the case ex parte and without a jury | 270 |
| On intervention by a third person setting up some charge or lien, collateral proceedings may be taken | 270 |
| Intervention proceedings in proceedings on confiscation of land, setting up a lien on property, may be reviewed by appeal | 270 |
| A charge of defendant's acts of service under the Confederate States, in the alternative, in the libel of information, will not support a confiscation decree | 270 |
| A sale under a decree of confiscation, where the court has jurisdiction, will stand, though the decree be reversed for error | 270 |
| Contraband of war. | |
| In what cases provisions are contraband | 210 |
| A neutral cannot lawfully become the carrier of provisions for the supply of the enemy's army, though such army be in a neutral country, and engaged only in hostilities against another belligerent; and in such case the vessel employed is not entitled to freight | 210 |
| Military law. | |
| Interest on debts due by citizens of the United States to citizens of Great Britain ceased during the Revolutionary war and the war of 1812 | 282 |
| But interest does not cease where the creditor remained in this country, or had an agent here authorized to receive payment | 282 |
| The president's proclamation, issued under authority of congress, declaring the inhabitants of certain states in rebellion to be in a state of insurrection, and forbidding all commercial intercourse with them, suspends suits in federal courts until after re-establishment of loyal government | 987 |
| The circuit court of the United States has no jurisdiction in trover for the seizure and conversion by a military officer of the United States, while in an insurgent state, of property belonging to a citizen of that state. The right, if any, is against the government | 461 |
| Instructions of the secretary of war held acts of the president, within Act March 3, 1863, relieving persons from acts done during the Rebellion under the order of the president | 876 |
| Article 70 of the articles of war, limiting the term of confinement of officers and soldiers, applies solely to confinement preliminary to trial | 527 |
| Civil War of 1861-65. | |
| An act of the insurrectionary legislature of Georgia abolishing the vendor's lien is valid and binding | 412 |
| The judgment of a court of a state in insurrection merely settling the rights of private parties actually within its jurisdiction, not tending to defeat the just rights of citizens of the United States, nor in furtherance of laws passed in aid of the Rebellion, is valid | 412 |
| Letters of credit given to a Confederate agent to enable him to prosecute his mission abroad in aid of the Confederate government are void as in aid of the Rebellion | 270 |
| Loans made in France by a citizen of France to a Confederate agent are valid when not knowingly made for the purpose of carrying on hostilities against the United States | 270 |
| But a transfer of such agent's property within the Union lines as security, after it became subject to confiscation, will not defeat the right of confiscation | 270 |
| WATERS AND WATER COURSES. | |
| See, also, “Navigable Waters.” | |
| The diversion and appropriation by defendants, by means of a mining tunnel, of subterranean waters previously appropriated and enjoyed by plaintiffs, will be enjoined | 67 |
| In such case a preliminary injunction will be granted, though requiring defendants to build a bulkhead across their tunnel | 67, 72 |
| WHARVES. | |
| A large steamship, while at the end of her pier, with her ends lapping the piers on either side, while waiting for slack water to enter her regular berth, put out a bowline for better security. Held, that she was not “made fast to” the pier, within the New York wharfage act | 585 |
| WILLS. | |
| A will does not take effect upon an after-acquired estate; and any alteration of the estate of the testator in the premises after a specific devise works a revocation of the will | 627 |
| A conveyance accompanied by a deed of trust in favor of the grantor works a revocation of a previous devise of such property to the grantee | 627 |
| A determination that certain premises are not within the operation of a will may be made without questioning its validity or its probate | 627 |
| A devise over to the survivor or survivors of such as should die without issue, in a case of devises to several grandchildren, held to cut down a fee simple absolute, previously devised, to a fee simple conditional, or to an estate tail | 749 |
| A court of equity will not interfere to declare future rights which may arise under a will | 887 |
| WITNESS. | |
| A creditor of a firm is not a competent witness to prove defendant a dormant partner therein | 597 |
| A surety in the administration bond is a competent witness for the administrator plaintiff | 730 |
| An assignee of a patent is incompetent to testify for the patentee on an interference | 806 |
| In an action on a bill of exchange, plaintiff's indorser is not competent to prove that the bill belonged to him | 872 |
| A partner upon whose individual check firm moneys have been paid, and who has | |
| 1235 | |
| been released from all liability by the other members of the firm, is not a competent witness for the bank in an action by the partnership | 492 |
| A head clerk of a party is not privileged to refuse to testify for his adversary because standing in confidential relations to his employer | 597 |
| A communication relating to the perpetration of a crime by the counsel is not privileged | 41 |
| If plaintiff examines his attorney as a witness, he waives his privilege, and upon cross-exmamination he is bound to answer generally | 824 |
| A witness examined before a commissioner in bankruptcy proceedings cannot refuse to answer a question which may subject him to no other injury than one of a civil nature | 1150 |
| A subpoena in a civil suit need not be served by a marshal or his deputy | 952 |
| A witness is entitle to fee only for the days of actual attendance, and not for the days on which he was ready to attend | 747 |
| The clerk's certificate is only prima facie evidence of attendance before the register. The register's memoranda of entries may be used to prove the proceedings | 747 |
| Fees of witness attending court on request of a party, without the actual service of a subpoena, may be taxed | 952 |
| WRITS AND NOTICE OF SUITS. | |
| The court will not grant leave to amend the writ by changing the name of one of the plaintiffs | 195 |
| A person temporarily residing at Honolulu as United States commissioner to the Hawaiian government is a nonresident, and may be served by publication under Code Or. § 30, subd. 3 | 138. |
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