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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has Been reversed.]
10FED.CAS.—76
10FED.CAS.—77
10FED.CAS.—78
| ABATEMENT AND REVIVAL. | |
| Page | |
| The bankruptcy of the patentee pending suit for infringement will not abate the suit, and the assignee need not be brought in if he reconveys the patent to the patentee pending the suit | 129 |
| ACCORD AND SATISFACTION. | |
| Accord and satisfaction occurring after issue formed in a suit, to be available, must be pleaded puis darrein continuance | 578 |
| ACCOUNT, | |
| In cases of mutual running accounts, every item, whether for pay, services, or otherwise, ending in a debt, is to be deemed a credit in favor of the party pro tanto | 72 |
| ACKNOWLEDGMENT. | |
| An alderman of the city of Philadelphia held a “magistrate,” within Act Me. Feb. 20, 1821, providing for the taking of acknowledgments | 795 |
| The body of the deed may be considered to determine whether it was duly acknowledged before the proper officer | 151 |
| ACTION. | |
| When a suit in equity and a suit at law are pending between the same parties for the same matter, one cannot be pleaded in abatement or in bar of the other; but the court of equity will sometimes order a stay of proceedings in one until the other is determined | 932 |
| Plaintiff will not be put to his election on motion of a defendant who is not a party to both suits | 932 |
| ADMIRALTY. | |
| See, also, “Affreightment” “Bills of Lading“; “Charter Parties”; “Maritime Liens“; “Pilots”; “Shipping”; “Wharfage.” | |
| Jurisdiction—In general. | |
| The jurisdiction of the courts of the United States conferred by the constitution is exclusive, and does not depend upon state legislation | 372 |
| The extension of admiralty jurisdiction to the lakes (Act Feb. 26, 1845) did not take away the concurrent remedy which existed at common law | 477 |
| State statute provisions authorizing seizure of vessel under process of justice of the peace to enforce a claim for damages must he strictly followed to give jurisdiction. The appearance of the owner's agent to defend the suit will not give jurisdiction | 277 |
| —Persons and property. | |
| Admiralty may, in its discretion, take jurisdiction, over a controversy between foreigners where its subject-matter is of a maritime nature | 127 |
| Admiralty jurisdiction in suits by foreign seamen for wages is exercised as matter of comity | 575 |
| Such jurisdiction will be exercised where the voyage is broken up, and to prevent a failure of remedy by delay | 575, 924 |
| A person not in the employment of a vessel or of her owners, nor acting in their service or for their benefit, and sustaining no relation to them by contract, has no right of action in rem, in admiralty, against the vessel, for an injury received by him on board of her by falling through an open hatchway | 255 |
| If the business or employment of a vessel appertain to travel or trade and commerce on the water, it is subject to the admiralty jurisdiction, whatever may be its size, form, capacity, or means of propulsion | 169 |
| Admiralty jurisdiction extends to lighters employed in carrying lumber out to vessels lying in deep, water | 169 |
| The fact that such lighters are not enrolled or licensed does not affect the question of jurisdiction | 169 |
| Admiralty has not jurisdiction to try the question of title to certain logs which have been incorporated into a raft and floated down a public navigable river | 83 |
| —Waters and places. | |
| Admiralty has jurisdiction of a libel for freight on goods transported over navigable tide waters lying between two states | 93 |
| For transporting goods landwise after voyage by water completed, not expressly contracted, for in the shipping contract, there; is no lien, in admiralty | 93 |
| Saginaw river, though wholly within the state of Michigan, is a public navigable stream, and within the admiralty jurisdiction | 169 |
| The width of a stream or length of a voyage is no criterion by which to determine the character of the service, nor the question of admiralty jurisdiction | 84 |
| A vessel plying between points on opposite sides of the Mississippi river, six miles apart, though run by a company owning a ferry franchise, is subject to admiralty jurisdiction | 84 |
| ——Rights and controversies. | |
| Admiralty has jurisdiction of claims under state laws for half pilotage for offer and refusal of services | 224 |
| The remedy given by the state law against the consignee is cumulative merely | 224 |
| If services or a contract properly concern a vessel and her owners, they are maritime services, and can be sued against the owners of a domestic vessel in a court of admiralty, or in rem against a foreign, vessel | 227 |
| A bill of lading for goods to be transported by sea, though made on land, is a maritime contract, enforceable in admiralty by action in rem | 554 1202 |
| Admiralty has jurisdiction over policies of marine insurance | 495 |
| Admiralty has no jurisdiction of a claim for services rendered on hoard a ship while at the dock in Liverpool | 924 |
| Admiralty has no jurisdiction of a libel by the master and owners of a vessel against others forming, with libellants, a joint-stock association, for a deficiency in freight, as the suit necessitates an accounting | 984 |
| Procedure. | |
| There is no right in admiralty to a trial by jury unless given by statute | 388 |
| Congress did not intend, by Act 1845, granting admiralty jurisdiction, and saving the right of trial by jury, to grant a new right, but to save one already supposed to exist | 388 |
| Act 1845, having been passed on the erroneous assumption that admiralty jurisdiction was limited to tide waters, is wholly inoperative | 388 |
| By the Revised Statutes (section 560), however, the law is changed, and the right to a trial by jury is expressly given in the class of eases specified in Act 1845 | 388 |
| The party demanding a jury must bring himself by his pleadings within the provisions of the act | 388 |
| ADVERSE POSSESSION. | |
| See, also, “Ejectment” “Real Property.” | |
| The adverse possession necessary to avoid the deed of a grantor out of possession must be under color of title | 961 |
| Payment of taxes for 21 years, without an adverse possession during such time, gives no color of title | 437 |
| AFFIDAVIT. | |
| Affidavits taken by justices of the peace and masters in chancery of the state of Arkansas are good in the circuit court of the United States | 1041 |
| AFFREIGHTMENT. | |
| See, also, “Admiralty” “Bills of Lading” “Carriers” “Charter Parties” “Demurrage” “Shipping.” | |
| Clean bills of lading for the carriage of goods between ports, where no usage to the contrary exists, require the cargo to be stowed under deck | 886 |
| Cargo stowed on deck in violation of a contract is at the vessel's risk unless clearly shown that it would have been destroyed if it had been loaded below deck | 886 |
| In case of wreck from the fault of the master in carrying cargo on deck, amounts paid by cargo owners in recovering their property may be offset against freight and general average charges due the vessel | 886 |
| It is not a sufficient delivery of a cargo of wheat in bulk to moor the vessel at the dock of the consignee's elevator during bad weather, without notice to him | 257 |
| An agreement between the consignee of a vessel and the owner or consignee of her cargo as to the time and manner of its delivery will bind the vessel | 905, 907 |
| Declining to receive cargo, in apprehension of bad weather, will not compel a general ship to lie idle | 907 |
| A delivery of a cargo on the wharf in New York, with notice to the owners of the time and place of unlading, places the goods at their risk, and discharges the ship from liability | 907 |
| Goods on freight may be delivered at the wharf, and need not be tendered personally to consignees. The ship cannot abandon goods on the wharf because of the inability or refusal of the consignee to receive them | 907 |
| The owner of cargo sold by the master to raise money for necessary repairs, or consumed by the crew and passengers, has a hen on the vessel for its value | 554 |
| The measure of damages for nondelivery of goods is their current value at the port of destination at the time when the goods ought to have been delivered, with interest from that time | 554, 1182 |
| Consignees cannot claim indemnity for injury to the cargo by a storm to which it was exposed whilst on conveyance to its place of storage, though they notified the ship not to unload it | 907 |
| The lien in admiralty for freight on cargo shipped in bulk is not lost by delivering the same at the consignee's place of business on land | 93 |
| On a libel for freight on coal, compensation for carting it to consignee's coal yard, for which there is no lien in admiralty, may be charged against advances made | 93 |
| The master cannot recover for services and expenses in saving the cargo from wreck, when his contract required its delivery at port of destination as a prerequisite to the earning of freight | 886 |
| Liability for nondelivery in the case of loss of green sugar by drainage and breaking of bags | 572 |
| Respondents, being garnished in the state court for freight due libelant in admiralty, not having tendered the freight, held bound to pay interest at the market rate while the money was under attachment, and at the statute rate after the attachment was dissolved on their giving bond | 1167 |
| AMNESTY. | |
| The proclamation of the president of December 8, 1863, extends to persons who, at its date, had been convicted and sentenced for the offenses described in it | 1057 |
| APPEAL AND ERROR. | |
| The respondent cannot appeal to the circuit court where the libel claimed $300 damages, and a decree was given for libelant for $40, and acquiesced in by him | 1198 |
| An appeal lies to the circuit court in admiralty where the amount of the claim, with interest, amounts to more than $50 when the decree is entered | 523 |
| Admiralty cases should not be taken by appeal to the circuit court, without the evidence, upon the facts found by the district court | 493 |
| The action becomes a plenary suit in the circuit court on appeal in admiralty, and full costs may be taxed where the decree is affirmed with costs | 523 |
| New evidence cannot be heard upon an appeal from the orphans' court | 447 |
| To warrant a reversal on a question of fact on an appeal in admiralty, the preponderance of evidence must be such as would justify the granting of a new trial in a court of common law | 905 |
| When a decree in admiralty is reversed, and the cause remanded, the circuit court may allow interest unless expressly forbidden to do so by the decree of the supreme court | 987 |
| The fact that the proceeds had remained for a long time in the registry, without producing interest, is no reason for refusing interest on the sum found due | 987 |
| Remedies on appeal bonds in Ohio | 832 1203 |
| ABBITRATION AND AWARD. | |
| An award upon a submission of a question whether the parties had a right of setoff is conclusive | 1144 |
| An award not delivered within the time prescribed by the arbitration bond is invalid. The time cannot be extended by parol | 558 |
| Parties agreeing to refer a matter of prize or no prize to their respective governments are concluded by the decision of the ministers of those governments resident here | 264 |
| Such decision held sufficiently evidenced by a letter from the consul general of country of party against whom rendered | 264 |
| ARMY AND NAVY. | |
| A United States soldier, when acting as a part of the posse of a United States marshal or revenue officer, is as much bound to obey the laws of the United States as any other citizen | 245 |
| Compensation of acting purser of navy, under act April 18, 1814 | 560 |
| Arrest. | |
| See “Bail”; “Criminal Law”; “Execution.” | |
| Assignment. | |
| See “Set-Off and Counterclaim.” | |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | |
| See, also, “Bankruptcy.” | |
| An assignment made to two persons, and accepted by one, becomes operative as to him | 779 |
| Member of firm of attorneys, absent when assignment was made to the firm, will be presumed to have assented thereto, where he did not refuse to act after notice. | 779 |
| Payment by an insolvent of a just debt to his assignee at the time of making the assignment is a quasi bribe, and a badge of fraud | 371 |
| The omission of schedules and inventory by an insolvent merchant making an assignment is a badge of fraud | 371 |
| Delivery of assets to the assignee before he has qualified himself to take possession by filing the inventory and bond is a fraudulent conveyance | 371 |
| Concealment of a large sum in cash at the time of making an assignment renders the instrument of assignment fraudulent and void | 371 |
| ASSOCIATIONS. | |
| See, also, “Religious Societies.” | |
| A. written agreement between the members of an unincorporated association to relinquish all individual interest in the proceeds of their joint labor for the common benefit is valid and binding | 528 |
| ASSUMPSIT. | |
| See, also, “Frauds, Statute of.” | |
| An action will lie at once for money advanced on a forged note | 323 |
| An action will lie for money fraudulently obtained on a note, before the note becomes due | 323 |
| Assumpsit lies upon the judgment of a justice of the peace | 1109 |
| An action for money had and received will lie by the holder against the acceptor of a bill who received a fund out of which it was payable | 952 |
| ATTACHMENT. | |
| See, also, “Bankruptcy”; “Garnishment.” | |
| Defendants in attachment may appear and plead without entering special bail to the action, and then the property attached is considered as a substitute for bail | 323 |
| A foreign attachment may be laid on property in the hands of the plaintiff in the attachment, and in such case no special process is necessary | 948 |
| Lands are subject to a foreign attachment in Pennsylvania | 948 |
| Proceedings and practice under the foreign attachment law of Pennsylvania | 948 |
| ATTAINDER. | |
| The effect of a treaty of peace and acts of congress on the attainder laws of a state (Pennsylvania) | 801 |
| ATTORNEY AND CLIENT. | |
| Attorneys at law, having confided to them by creditors a discretionary power to collect a debt, may, in the exercise of their discretion, bind their clients by assent to an assignment for the benefit of creditors | 779 |
| Fidelity to the client does not justify an attempt to evade the fair operation of the law, or to impede the administration of justice | 305 |
| AVERAGE. | |
| Right of contribution in case of a jettison of a load carried on deck under the usage of the trade, or under special agreement | 515 |
| BAIL. | |
| Only a reasonable cause of action need be shown on the preliminary investigation | 917 |
| An affidavit in the form required by Act Md. 1729 held sufficient to hold defendant to bail in District of Columbia | 925 |
| If bail has not been required upon the cap ad resp, it will not be required upon setting aside the office judgment without affidavit | 816 |
| Delay by the plaintiff, for a period of five years, to call on the officer for bail, will be such laches as to exonerate the officer | 382 |
| Special bail in action on judgment obtained in another county | 814 |
| The judgment is as conclusive against the bail as against the principal | 1062 |
| BANKRUPTCY. | |
| Operation and effect of bankrupt laws, and of proceedings thereunder. | |
| A debt contracted in one country cannot be discharged by the bankrupt laws of another country | 1117 |
| The bankruptcy of the mortgagor will not divest the state court of jurisdiction of foreclosure suit already at issue, and it may proceed to decree of sale | 273 |
| In such case, where the property is clearly of much less value than the decreed lien thereon, the federal courts will not order the assignee in bankruptcy to sell the same | 273 1204 |
| The prior appointment of a receiver in proceedings in a state court for the distribution of the estate of an insolvent corporation is no ground for dismissing a petition against it in bankruptcy | 1178, 1180 |
| The fact that the state is a creditor does not affect the jurisdiction of the bankruptcy court | 1180 |
| Proceedings in a suit against the bankrupt by creditors who have joined in the petition, in which he was arrested on the ground that the debt was fraudulently contracted, will be enjoined pending the discharge | 569 |
| Form of affidavit to stay proceedings in state court | 466 |
| On application for leave to sue the bankrupt in the state court, the court will not inquire whether the debt be one from which the bankrupt would be relieved by his discharge | 275 |
| The court will protect the bankrupt from arrest on civil process only where founded on a debt from which the discharge would release him, and it may, on application, inquire into that question of fact | 464 |
| A railroad corporation is subject to the bankrupt act | 1180 |
| The district court will consider the state statutes and decisions in applying the bankrupt law to married women | 601 |
| State bankrupt laws. | |
| Act Pa. March 13, 1812, held unconstitutional, as impairing the obligation of a contract, and because congress have exclusively the power to pass a bankrupt law | 542 |
| Jurisdiction of courts. | |
| Authority for the complete administration of the bankruptcy system exists in the district courts | 579 |
| The district court has jurisdiction to enforce the protection from arrest given the bankrupt (Act 1867, § 26), by releasing him from imprisonment by habeas corpus | 464 |
| The circuit court has jurisdiction to determine the validity of conveyances alleged to be in fraud of the bankrupt act | 454 |
| The circuit court has jurisdiction to determine the respective rights of persons in a fund received by the assignee from a sale of incumbered property, and held to abide a decision of the court | 454 |
| The court first acquiring jurisdiction on a petition of a partner has exclusive jurisdiction, and proceedings by the other partners in another court are void | 1162 |
| Register—Powers and duties. | |
| The registers' acts are the acts of the courts, and they are vested with all the powers of the district courts in relation to all matters about which there is no contest | 270 |
| Applications by assignees to settle controversies under section 17, Act 1867, or to sell property under section 25, must be made to the court, and not to a register | 999 |
| Commencement of proceedings—Voluntary bankruptcy. | |
| An alien residing in the United States may be adjudged a bankrupt on his own petition, regardless of his length of residence | 594 |
| A firm may be adjudicated bankrupt so long as there are undistributed partnership assets, and partnership debts and liabilities | 823 |
| The right of one partner to have the firm adjudicated bankrupt is coextensive with the right of the firm creditors, or of another partner | 823 |
| Where one member of a firm files his petition, scheduling both firm and individual assets and liabilities, the other member may be made a party to the proceedings | 823 |
| A voluntary petition cannot be withdrawn, and further proceedings stayed, after the decree, without the concurrence of all whose interests may be affected | 369 |
| —Involuntary bankruptcy. | |
| In Indiana a petition in bankruptcy will not lie against a married woman where it is not shown that she has a separate estate | 601 |
| An executorship for the limited purpose of winding up testators' business, and to carry on the same for such purpose, cannot be administered under the bankrupt act | 999 |
| Secured creditors are not to be reckoned in computing the number of creditors who must join | 1178 |
| Assignee under individual petition of partner may maintain petition against firms of which he was a member | 904 |
| The verification of a petition before a notary public is irregular, but does not affect the jurisdiction, and is cured by the adjudication | 268 |
| The absence of depositions from the files is also a matter of practice and regularity, and not of jurisdiction | 268 |
| The lack of venue in the affidavit of service, and its failure to show personal service, and the failure to make order of publication, are not jurisdictional, and all objections thereto are waived by application for a discharge | 268 |
| The answer need not be verified | 141 |
| Jury trials will be granted where insolvency is denied | 904 |
| If the debtor do not appear on return day of rule, he cannot demand a trial of issues by a jury | 141 |
| —Acts of bankruptcy. | |
| A conveyance or assignment, fraudulent at common law, is an act of bankruptcy | 79 |
| A conveyance or assignment which contravenes the provisions or objects of the bankrupt act is an act of bankruptcy, though good at common law | 79 |
| The clause in the act of 1841 relating to transactions entered into in good faith more than two months before petition filed does not protect the bankrupt, but only the party dealing with him | 79 |
| The nonpayment of interest coupons by a railroad company for 14 days is not an act of bankruptcy | 1180 |
| Schedule. | |
| A contingent liability as stockholder in a failed savings bank need not be scheduled where it does not appear that the bank will not pay in full | 1156 |
| Adjudication. | |
| An adjudication upon a voluntary petition is a conclusive finding that the petitioner is insolvent, and owes more than $300, but not that he is within the jurisdiction of the court in other respects | 594 |
| The bankrupt, after the adjudication, may enter into business, and hold property, subject to the contingency of obtaining a discharge. Act 1841 | 973 |
| The decree and the title of the assignee relate back to the time of filing the petition, and embrace all the property petitioners then had | 164 |
| Meeting of creditors. | |
| The first meeting of creditors should be kept open for at least one hour | 390 |
| Assignee—Appointment and removal. | |
| The judge cannot interfere where an assignee is chosen by the greater part in value and number of the creditors who have proved their claims, and there is no imputation either upon his capacity or integrity | 973 |
| —Powers and duties. | |
| The assignee takes only the bankrupt's interest, and he has no control over the interest of others except as expressly given by law to protect the bankrupt's interest for the benefit of the general creditors | 513 1205 |
| The assignee cannot take possession from a sheriff of property in his hands when the proceedings were commenced without paying the debt, or obtaining the aid of the court | 513 |
| Before the court can take action on the failure of an assignee to make a report of funds received, it must be shown that he has received funds | 620 |
| Property of bankrupt—What constitutes. | |
| Bankrupt's interest in cemetery vault, held not to pass to his assignee | 168 |
| One copartner, as between himself and the firm creditors, cannot estop himself by any dealings with the other partner from claiming partnership assets | 823 |
| —Possession and custody. | |
| Assignee of private banker held to have no rights in assets of incorporated bank, organized and solely owned by the bankrupt in fraud of the state law | 611 |
| —Exemptions. | |
| The bankrupt cannot claim exemptions out of property fraudulently conveyed by him after it is recovered to his estate | 914 |
| The value of the articles should be stated in the list of exemptions | 914 |
| In granting an exemption, the court will order that it shall not affect or prejudice the wife's rights to alimony chargeable upon real estate claimed as homestead | 47 |
| A family sewing machine is exempt | 914 |
| A watch, not being exempt by the statute of the state, does not properly come within the discretionary articles contemplated by Act 1867, § 14 | 914 |
| The assignee may make the bankrupt an allowance, not exceeding $300, and he may also allow him any reasonable sum for taking charge of the property | 973 |
| —Liens. | |
| The word “lien” (Act 1841, § 2), embraces equitable as well as legal liens, and its meaning and application are to be ascertained by the laws of the several states | 164 |
| A suit commenced by Creditor's bill in New York gives a lien enforceable in subsequent bankruptcy proceedings. Act 1841, § 2 | 164 |
| An honest execution, levied before petition is filed in bankruptcy, is unaffected thereby, and the sheriff may proceed there-under | 513 |
| The court will interfere only where the interest of the general creditors will be materially affected, or the validity of the judgment is questioned | 513 |
| A lien acquired by judgment, execution, and levy before the bankruptcy is enforceable against the proceeds of the property where an appeal taken by the bankrupt did not operate as a stay | 556 |
| The bankruptcy court has no jurisdiction of alimony operating as a lien upon land belonging to a bankrupt's estate, and cannot increase or diminish it | 47 |
| An assignment of a permit to cut timber, and a conveyance of the timber by the bankrupt, to secure advances made before petition filed, gives a valid lien | 1186 |
| Otherwise as to advances made after the petition was filed, but in ignorance thereof | 1186 |
| One who advances money to drive the logs to market on the security of the assignment is entitled to be subrogated to the rights of the assignee | 1186 |
| —Sale. | |
| The district court has power to order the sale of incumbered property of a bankrupt estate discharged of the incumbrance | 454 |
| Sale of incumbered property, without notice to incumbrancer, sustained, where a sufficient amount of proceeds was retained to satisfy the incumbrance | 454 |
| Proof of debts. | |
| A firm note given by one partner of an insolvent firm without the assent of the others, is a fraud upon the firm creditors, and cannot be proved | 547 |
| A firm note given by one partner without authority, after dissolution, to pay a firm debt, received under a mistake of facts, may be surrendered, and the original claim proved | 547 |
| The bankrupt's attorneys are not entitled to payment from the assets, as preferred creditors, for their services in preparing petition and schedules, but may prove their debt in the usual manner | 339 |
| Debts may be proven at any time during the sitting of the court on the day for showing cause, and are not restricted to the hour fixed in the notice | 119 |
| The clerk of the district court, who is a standing commissioner, is not empowered to take proof of debts | 119 |
| A creditor proving a claim as unsecured will be required to relinquish all security held by it | 958 |
| Security held by a creditor may be taken by him at its value as found by the court, and his claim proved for the balance, or it may be sold under order of the court | 969 |
| Payment of debts: Priority: Dividends. | |
| Individual creditors of partner who contributed most of the property to the firm, which was all of his property, held entitled to share equally with firm creditors | 524 |
| Examination of bankrupt, etc. | |
| The assignee must see that the examination of the bankrupt is thorough and complete. A second order is not granted except for cause | 344 |
| Third persons are required to submit to examination only on cause shown by affidavit | 344 |
| The bankrupt's wife may be required to testify to all facts and transactions to which she was either a party or a witness, but not to mere confessions or admissions of her husband concerning his dealings with third persons | 344 |
| The keeper of a gambling house in which the bankrupt was alleged to have lost a large sum of money, held privileged from testifying as to his residence | 913 |
| Costs: Fees: Disbursements. | |
| When docket fee of $20 is taxable | 816 |
| Petitioners under the act of 1841 are bound to pay all expenses incident to the application | 1067 |
| Discharge—Proceedings to obtain. | |
| The application is required to be made within one year from the adjudication only in cases where there are no assets, or no debts proved. Act March 2, 1867, § 29. (Reversing 1165) | 1165, 1166 |
| —Opposition: Acts barring. | |
| Specifications in opposition inadvertently omitted to be filed within 10 days after the return day to show cause may be filed nunc pro tunc | 1184 |
| It is too late, after parties have been declared bankrupts as partners, to allow objections to be filed disputing such relation | 344 |
| The trial of objections to the discharge of partners may be joint, but the verdicts and decrees must be several | 193 |
| Any act of misdemeanor under Act 1867, § 44, may be set up in opposition to the discharge, though the bankrupt has never been tried criminally therefor | 193 1206 |
| Under Act July 14, 1870, the assets, after payment of valid liens, must equal 50 per cent. of proved debts contracted subsequent to January 1, 1869, to entitle the bankrupt to a discharge without consent of creditors | 915 |
| Under Act June 22, 1874, in voluntary cases, the assets must pay 30 per cent. of debts, regardless of when contracted, or when proceedings were commenced, in the absence of consent of creditors, to entitle the bankrupt to a discharge | 340 |
| In compulsory cases, the assent of creditors and the amount of assets are immaterial | 340 |
| Proper books of account for a tradesman are such as disclose the real condition of his affairs, and need not be in any particular form | 105 |
| The want of such books will prevent a discharge | 105 |
| The failure to keep proper books of account will prevent the discharge of both partners, though the fault may be wholly that of one of them | 193 |
| A stairbuilder who made stairs on order from his own material held a tradesman or merchant, required to keep proper books of account | 49 |
| A memorandum book, with entries only of men's time, is insufficient | 49 |
| To bar a discharge for having given a preference, the bankrupt must have either contemplated bankruptcy or insolvency, or in fact have been insolvent, and knew it, or had good grounds for believing it, and have acted on such belief | 105 |
| The bankrupt must have designedly and intentionally given a preference; but the creditor receiving it need not have known that his debtor was insolvent | 105 |
| A general assignment by an insolvent without preferences 10 months before filing petition in bankruptcy held to have been made in fraud of the bankrupt act, and to prevent a discharge | 564 |
| Conveyances by an alien while residing abroad, made within six months of filing the petition, if they would be preferences under the bankrupt act, or if fraudulent at common law, will prevent a discharge | 594 |
| A preference is committed when a trader, knowing or suspecting that he is insolvent, and must stop payment, pays or secures some creditors in full | 193 |
| Instructions to foreign agent to pay a particular creditor, not acted upon, held no ground for refusing discharge | 58 |
| A trader is insolvent when he cannot pay his debts in the ordinary course, as traders usually do | 105 |
| Specifications in opposition held to be sustained on the testimony of the bankrupt and his brother, in whose hands property was concealed | 613 |
| Costs are not awarded prevailing party unless the objections were frivolous or vexatious, or, on the other hand, the bankrupt is shown to have the means of paying costs | 195 |
| —Scope and effect: Vacating. | |
| The discharge does not release a husband from the obligation to pay alimony | 47 |
| A discharge cannot be set up after judgment as a reason why the judgment should not be enforced | 608 |
| Prohibited or fraudulent transfers. | |
| A general assignment for creditors without preferences is void as against an assignee in bankruptcy | 488 |
| An advance will be considered a present consideration for a conveyance made within a reasonable time thereof, and in pursuance of the prior agreement | 89 |
| To defeat the conveyance, it must be shown that the grantee had reasonable cause to believe the grantor insolvent, and knew that a fraud upon the act was intended | 89 |
| A security given as a preference is none the less void because given in pursuance of a promise made when the debt was contracted | 939 |
| Bona fide payment by an insolvent in satisfaction of judgment is not in fraud of the act if thereby the debtor is enabled to continue his business | 58 |
| A debtor, unable to meet his engagements and pay his debts in the ordinary course of business, as persons in trade usually do, is insolvent | 939 |
| Preference upon a judgment note is obtained when the judgment is entered, not when the warrant of attorney is given; and if the creditor at such time knew of the insolvency of the debtor, or was put on inquiry, the entry of judgment and issue of execution is a preference | 569 |
| A conveyance by an insolvent debtor of his real estate to his wife, without consideration, she giving a mortgage thereon to creditors who knew the debtor to be insolvent, is a preference | 316 |
| The giving of large discounts on commercial paper is not notice of insolvency where similar paper was selling at equal rates in the market | 569 |
| A creditor accepting a security is conclusively presumed to know what appears upon its face, and to have reasonable cause to believe it was intended to accomplish what must be its ordinary and necessary effect | 939 |
| The acts, knowledge and intentions of a husband managing his wife's business, in reference to the business, must be held to be her acts, knowledge, and intentions | 939 |
| A purchase in good faith for a nominal consideration from assignees in insolvency, under a state law, a month before the bankruptcy, held good as against the assignee in bankruptcy | 568 |
| Note to trustee of wife for alleged balance of account for use of her separate property, and deed to secure the same, held fraudulent | 385 |
| A mortgage of the bankrupt's entire personalty to secure a debt, given without request, held fraudulent | 939 |
| A bill of sale, given to a creditor who had obtained the levy of an attachment after notice of the debtor's insolvency, held fraudulent | 1191 |
| Notes and mortgage assigned by an insolvent to a creditor about a month before an adjudication, as security for pre-existing indebtedness and a small additional loan, held void | 964 |
| Creditors who receive an illegal preference are liable to the assignee. The intent of the debtor to give, and of the creditor to secure, an unauthorized preference, may be shown by circumstances | 338 |
| Suits and proceedings in relation to the estate. | |
| A suit may be maintained by the assignee to collect assets of the bankrupt in other district courts than that where the proceedings in bankruptcy are pending | 579 |
| A petition by trustees against trustees for recovery of securities belonging to the estate held not proper remedy | 952 |
| Trover will not lie by the assignee against judgment creditors to recover the value of the bankrupt's property, sold on execution, prior to the commencement of bankruptcy proceedings | 124 |
| Ignorance of the precise amount of goods transferred in fraud of the act will not give the assignee the right to claim a discovery in equity, as he can obtain a full disclosure on examination of the preferred creditor | 53 1207 |
| Bill to set aside chattel mortgage as a fraudulent preference sustained, notwithstanding assignee had sold the chattels, and the mortgagee acquitted him from all liability therefor | 451, 454 |
| Such a bill is not multifarious when brought by the assignee against all parties in interest, seeking a determination of the rights of all of them in the premises | 454 |
| Form of relief of creditors of a corporation, where the bankrupts hold its unpaid stock, and the corporation has not made assessments thereon | 320 |
| No costs allowed defendants on dismissal of bill by assignee who acted under advice of eminent counsel | 611 |
| Review. | |
| The circuit court has no authority to entertain questions adjourned from the district court unless they are distinctly raised | 969 |
| The circuit court will not, on petition for review, hear additional testimony. Its power is simply revisory | 1053 |
| The district court may open the decree, and grant a rehearing, in case of newly-discovered evidence; and, pending application therefor, the circuit court will suspend action on the petition for review | 1053 |
| If the bankrupt can settle all but a few contested claims, the court may, on consent of creditors, dismiss the proceedings on security being given to the nonassenting creditors | 1053 |
| Arrangement with, creditors. | |
| In calculating a majority of creditors (Act June 22, 1874, § 14), those whose debts do not exceed $50 are to he reckoned in value, but not in number | 367 |
| The composition should be accepted if made by the necessary quorum of creditors, acting intelligently, and without undue influence | 1156 |
| The failure to schedule all debts will not prevent confirmation of a composition, for the discharge will only operate as to debts scheduled | 1156 |
| BANKS AND BANKING. | |
| Bank to whom draft was sent “for collection and credit” held to be agent of sender until collection of certified check given by payee in payment; and money received thereon after its suspension is held in trust for the sender | 253 |
| Qualifications of directors of Mechanics' Bank of Alexandria, D. C | 1032 |
| BILLS, NOTES, AND CHECKS. | |
| Validity. | |
| The presumption is in favor of the validity of negotiable paper of a corporation, signed by its financial officer | 1054 |
| Notes given to a broker in payment of market differences on settlement of a gambling contract are void for want of consideration | 1084 |
| What law governs. | |
| A note or foreign bill of exchange is a contract of the state in which it is made payable, and is governed by its laws as to demand and notice | 124, 542 |
| A note “negotiable in the Bank of Alexandria,” D. C. held governed by the laws in force in Alexandria | 405 |
| The statutes of a state enter into and become part of a note made in that state | 1192 |
| Negotiability. | |
| A note not made payable at a bank is not a “promissory note negotiable by the law merchant,” where, under the state law, the maker is entitled to assert, against any indorsee, any equity available against the payee | 1192 |
| Indorsement and transfer. | |
| Payment need not be in cash to make one a bona fide purchaser of a promissory note | 1054 |
| The rule of lis pendens does not apply to commercial paper | 1054 |
| Where a promissory note is fair upon its face, an indorsee is not bound to inquire into the consideration or circumstances under which it was given | 1054 |
| Indorser held liable on partnership note given by one partner after dissolution in renewal of note made before dissolution | 1067 |
| An accommodation maker is entitled to the rights of a surety as against a holder with knowledge of his true relation, and is discharged by a valid extension of time to the one who is, in fact, the principal debtor | 617 |
| Demand: Notice: Protest. | |
| Demand at government office, in which the maker was employed, in his absence, during his usual hours of business, where he lived out of town, held not sufficient | 558 |
| A demand of the bar keeper of a tavern to which the livery stable was attached, in which the maker of a note occasionally left his horse while at a government office, in which he was employed, is not a sufficient demand | 558 |
| A demand and notice more than five years after date on a demand note is not within a reasonable time | 970 |
| The mere fact that the indorser of a note is a member of the firm by which it is made will not excuse a demand and notice, although the firm were insolvent when the note was given, and the indorser knew that it was not paid | 970 |
| Demand of payment on one of the firm held sufficient to charge the indorser of a firm note given after dissolution | 1067 |
| If the maker is not found at his office or his dwelling house on the last day of grace, so that payment of the note cannot be demanded, the note is dishonored | 1067 |
| A written notice of the dishonor of the note, left at the dwelling house of the indorser, is sufficient | 1067 |
| Release or discharge of indorser. | |
| A promise to pay does not bind an indorser who did not know at the time that he was discharged by the laches of the holder | 579 |
| Actions. | |
| A note and trust deed given to secure the same will be construed together, and the note may be declared due under a clause in the deed providing that the debt secured shall become wholly due on default in payment of interest | 1194 |
| The assignee of a note, taking it from the payee after dishonor, cannot enforce it against the maker, who has been released by the payee | 161 |
| Plaintiff cannot recover proceeds of his note, discounted with the defendant's indorsement, unless he has paid and produces the note, or accounts for its nonproduction | 392 |
| Admission to a stranger by an indorser that he is willing to pay the debt will not dispense with proof of demand and notice, etc | 79 1208 |
| BILLS OF LADING. | |
| See, also, “Affreightment”; “Charter Parties” “Demurrage” “Shipping.” | |
| A bill of lading is both a receipt and a contract. As a receipt, it may be explained by parol, but not as a contract | 609 |
| Parol evidence is admissible to show a mistake in the statement of the quantity of goods received | 609 |
| Consumption of part of cargo by crew and passengers in consequence of a short allowance made necessary by protracted voyage is not a peril of the sea, within the meaning of a bill of lading | 554 |
| BONDS. | |
| See, also, “Bottomry” “Principal and Surety” “Municipal Corporations” “Railroad Companies.” | |
| A bond is good at common law if entered into for a valuable consideration, and is not repugnant to any statute or the general policy of the law | 1062 |
| A bond is void which shows upon its face an illegal consideration | 1062 |
| The bona fide purchaser in the regular course of business, and for their market price, before maturity of municipal coupon bonds, transferable by delivery, which had been stolen, takes a good title except as to matured coupons | 354 |
| In Ohio, both want of consideration and fraud can be pleaded to a bond | 1062 |
| To an action on a bond to pay the sum that shall be recovered in a certain action then pending between different parties, a defense other than fraud cannot be set up which might have been available in the first action | 1062 |
| Matters which make a deed void may be given in evidence, under the general issue of non est factum: but matters in avoidance must be pleaded | 1062 |
| The defense that the bond is in restraint of liberty must be specially alleged | 1062 |
| Nothing beyond the penalty of a bond can be recovered | 549 |
| BOTTOMRY AND RESPONDENTIA. | |
| A bottomry bond is not valid as such unless the debt is risked on the loss of the vessel | 1077 |
| The bond may be valid as a bottomry bond where the person is liable in the event that the vessel is not lost | 1077 |
| Marine interest secured is not alone sufficient to show the bond to be in bottomry | 1077 |
| A bond, invalid as a bottomry bond, will not be held good as a mortgage where the possession is not changed, and it is not recorded, as required by the state law | 1077 |
| The bond, when given by the master, must be to enable the vessel to proceed on her voyage, and to leave a port where she is detained for necessary repairs, or for claims upon her, and has no funds, credit, or other means of getting money | 302 |
| An anticipated necessity for funds will not justify the bond | 302 |
| A bond for a pre-existing debt is not valid | 1077 |
| The borrower on a bottom and respondent bond of moneys advanced on the risk of the voyage, payable by its terms on the arrival of the vessel at her port of discharge, and conditioned to be void if the vessel is utterly lost, is discharged, and the bond rendered void, by the total loss of the vessel on her voyage, though part of her tackle and cargo is saved | 446 |
| The premium paid on bottomry will be included in the amount of a decree for the amount due for supplies and repairs, where they were furnished upon bottomry. | 987 |
| Interest held recoverable from the date of a judicial demand, though the bottomry bond contained no stipulation for ordinary interest | 987 |
| BOUNDARIES. | |
| See, also, “Deed”; “Grants”; “Public Lands.”; | |
| The boundary to lands bordering on rivers and lakes is the meandered line established by the government surveyors | 961 |
| BRIDGES. | |
| The court has no authority to control the discretion of the secretary of war as to the position of the draw in the bridge over the Potomac river, between Washington and Alexandria, under Act March 3, 1841 | 234 |
| CARRIERS. | |
| Owners of ships which are employed in transporting goods for hire are common carriers | 554 |
| The liability of a carrier is not diminished by the absence of a bill of lading, and his right to recover for damage to cargo depends upon his possession as a carrier at the time of the accident | 181 |
| It is not contributory negligence for a passenger to ride in the smoking car next to the locomotive | 502 |
| In the case of injuries by a collision to a passenger on a railroad, the burden is on the carrier to show that the accident was not caused by fault of its servants | 502 |
| CHAMPERTY AND MAINTENANCE. | |
| An agreement giving plaintiff the exclusive right to collect claims for damages for infringement of a patent, he to bear all expenses, and to receive half the recovery as compensation, held void for champerty and maintenance | 1185 |
| The fact that a contract tainted with champerty and maintenance was made in a state where the common law doctrines concerning such subject were abrogated by law cannot uphold it in equity where such contract was to operate in many states, where it was clearly void | 1185 |
| A patentee may maintain an action in New York for damages against a person who, not being interested in defending suits brought upon the patent, assists infringers to defend with money, and otherwise | 752 |
| CHARTER PARTIES. | |
| See, also, “Affreightment” “Bills of Lading” “Demurrage” “Shipping.” | |
| Goods loaded by third persons under contract with the charterer are liable only for their own freight, and not for the gross sum named in the charter party, though the charter reads: “Bills of lading to be signed when presented without prejudice to this charter party.” | 953 |
| In the case of delay caused by a sick and incompetent crew, the liability of the vessel is determined by the condition of facts at the time the vessel sailed | 188 |
| The impossibility of procuring a competent crew will not justify the vessel in leaving port with an inadequate crew | 190 1209 |
| A vessel detained in a port of distress from unseaworthiness must take proper means for the preservation of a perishable cargo | *190 |
| Liability of vessel in the case of a cargo of African rawhides injured by heat and worms, where voyage was delayed by sickness and inadequacy of crew | *190 |
| A libel in rem will not lie where the vessel did not enter upon performance of the charter, though stipulating that vessel and merchandise laden on board should be bound for its performance | 182 |
| CIVIL RIGHTS. | |
| Common carriers may provide separate accommodation for white and colored passengers, providing they be equally suitable, and may exclude passengers who refuse to comply with reasonable regulations in this particular | 1090 |
| CLERK OF COURT. | |
| Money must be actually received, kept, and paid out, to entitle the clerk to the one per cent, commission. Rev. St. § 828 | 603 |
| The clerk is not entitled to such commission on moneys which, although ordered to be, are not in fact, paid into his hands | 603 |
| COLLISION. | |
| See, also, “Towage.” | |
| Nature of liability—Contributive fault. | |
| Where the pilot of each vessel saw the other in time to execute all maneuvers, incumbent to avoid a collision, the absence of a lookout is immaterial | 176 |
| Unskillfulness displayed by a vessel under weigh in the measures used to avoid a collision after discovering a vessel at anchor in the channel without a light will render the former liable | 1087 |
| Tug colliding with and sinking steamer in distress in attempting to succor passengers and crew, where she acted with reasonable judgment and skill, held not liable | 412 |
| Rules of navigation. | |
| Mere apprehension of danger of collision will not justify change of course in a vessel whose duty under the rules is to keep her course. A change should only be made where there is actual danger | 184 |
| The swinging out of steamboat when meeting cross tide held not a change of course | 176 |
| Steam vessel meeting sail vessel. | |
| A propeller passing close to a sloop cannot recover for an injury by being struck by the sloop's boom, swinging out from a puff of wind | 215 |
| Collision between sloop and ferryboat held to have been caused solely by fault of the sloop, which luffed while the master was absent from the helm, helping to stow the anchor | 251 |
| Steam vessels meeting. | |
| Tug held liable for collision between ferry boat and tow without light, which was being shifted while lying in the track of the ferry | 820 |
| One vessel overtaking another. | |
| A vessel in advance is not bound to give facilities to enable a vessel in her rear to pass her, but only to refrain from any maneuvers calculated to embarrass the latter in an attempt to pass | 883 |
| The overtaking vessel must exercise the greater degree of care to avoid collision | 883 |
| The burden is upon the overtaking vessel to show that the collision was not caused by her fault | 883 |
| Lights: Signals, etc. | |
| Construction of Act July 25, 1866, as to proper lights for ocean going steamers, coasting steamers, and those carrying sail | 468 |
| A vessel, having lost her colored lights in a storm at night on Lake Michigan, held in fault in running through Mackinaw Straits on following night with the prohibited white light | 1045, 1049 |
| An approaching vessel, considering the white light to be that of a vessel at anchor, held not excused where, by the exercise of ordinary nautical skill and care, the error might have been discovered in time to avoid a collision. Reversing page 1045 | 1049 |
| Lookouts. | |
| The steward, who was standing by the companion way, and was no mariner, and had not been stationed as a lookout, held not a proper lookout | 989 |
| A steamer will be held liable for a collision with a schooner on a dark and cloudy night if it might have been avoided had the steamer a lookout forward | 221 |
| Particular instances of collision. | |
| Between schooners beating up the Hudson river after the vessel ahead came about on her port tack, and failed to keep away from the other, which was running out her starboard tack | 1161 |
| Between lighter sailing free in North river and tow, where the former changed her course, apprehending danger, and was held solely in fault | 184 |
| Between steamer without lookout and schooner in the Kills, where the former was held liable for not keeping away | 989 |
| Between tow and schooner in Kills, where the latter was held in fault for not taking proper course | 990 |
| Between steam and sail vessels on crossing course in Long Island Sound | 468 |
| Between ferryboat crossing East river and steamboat coming up river on her starboard hand near piers, where former was held in fault for not keeping away | 176 |
| Between two steamers on crossing courses in the East river, where both were held in fault | 216 |
| Between canal boats at pier forced together by steamer backing in coming into her berth at the pier, and duly warned | 181 |
| Between tug and ferryboat, caused by an overtaking tug striking the former, and deflecting her course | 186 |
| Procedure. | |
| The testimony of witnesses to facts occurring on their own vessel is entitled to greater weight than that of witness on board the other | 883 |
| Libelant's case cannot be sustained by the evidence alone of his pilot, who was the only lookout | 486 |
| Rule of damages. | |
| Where the witnesses as to value for opposite parties are so far apart that they cannot be approximately correct, it is error to average the amount by their testimony | 417 |
| The measure of damages for the loss of property in a collision is the value of the article at the port of shipment | 815 |
| The measure of damages for the loss of a cargo procured abroad is what the master paid for it, with freight, and not what it cost the owner by his adventure in sending his ship to procure it | 468 1210 |
| Where the owner has repaired the vessel, the recovery may, in some cases, exceed its value, where excess is made up by unexpected amount of demurrage | 468 |
| Vessel detained five days for repairs held entitled only to one third of net freight on contract about to be performed which would have occupied fifteen days | 822 |
| The taking possession of damaged cargo by original purchasers at the contract price, less the sum paid by insurers, held a private sale, and sufficient, with evidence of experts, to support finding as to amount of damage | 181 |
| CONSTITUTIONAL LAW. | |
| A state cannot pass bankrupt and naturalization laws, notwithstanding congress has failed to legislate on such subjects | 542 |
| A legislative act incorporating a railroad company, and granting lands on certain conditions to be performed by the company, is a contract between the state and the company, and a constitutional provision, subsequently adopted, annulling it, is unconstitutional and void | 1006 |
| Laws which go to the remedy on past as well as on future contracts are valid, provided they do not impair their obligation | *817 |
| An alteration by law of a remedy to such extent as to materially affect a right vested under a prior contract is unconstitutional | *817 |
| An act abolishing imprisonment for debt does not impair the obligation of contracts, as it affects the remedy only | 1032 |
| A law authorizing the discharge of a contract by payment of a smaller sum at a different time and in a different manner than agreed held unconstitutional | 542 |
| The words, “the law of the land,” in Const. R. I. art. 1, § 10, mean due process of law, in which is included the right to contest the charge, and be discharged, unless it is proved | 1135 |
| A complaint against no person in particular, and not containing a charge of the substantive facts necessary to constitute the offense, is not due process of law | 1135 |
| Act R. I. Jan., 1853, authorizing a seizure of intoxicating liquors, held unconstitutional in not providing for notice to the owner, or for a trial of the question whether the liquors were held for sale in violation of the law | 1151 |
| CONSULS. | |
| Consuls represent the subjects of their respective nations, if not otherwise represented, where such consuls reside | 264 |
| A consul is not entitled, by the laws of nations, to the immunities and privileges of an ambassador or public minister. He is liable to civil suits, like any other individual, in the tribunals of the country in which he resides | 447 |
| The circuit court of the United States has jurisdiction of a suit against a foreign consul | 945 |
| CONTEMPT. | |
| Where the nature of the inquiry does not appear from the commission, witnesses will not be held in contempt for refusal to make answers on examination | 467 |
| The proper practice to punish for contempt in violating an injunction is by motion to commit, upon proper notice to the parties proceeded against | 1001 |
| CONTRACTS. | |
| See, also, “Sale”; “Vendorand Purchaser.” | |
| Contracts in evasion or fraud of the laws of any state are invalid in the federal court | 1093 |
| Rev. St. III. c. 38, § 130, does not prohibt sales of grain or other commodities for future delivery, where the seller reserves to himself a simple option as to the time of delivery within certain limits | 345 |
| A settlement of a contract to deliver grain during a future month at a fixed price before its maturity does not make it a gambling contract | 345 |
| A contract of sale which does not contemplate an actual bona fide delivery, but is to be settled by payment of difference in market price at future time, is void as a gambling contract | 1084 |
| The law of the country where the contract is made is the law of the contract wherever performance is demanded; and the same law which creates the charge will be regarded if it operate a discharge of the contract | 1117 |
| Words “representing,” etc., added to name of party, held simply words of description | 996 |
| A well-known general meaning of terms used in a grant must be adopted in interpreting the grant, unless it appears that some other or different meaning was intended by them | 649 |
| In determining whether covenants are dependent or concurrent, the intention may be determined by the order of time in which the acts are to be done | 624 |
| In determining whether covenants are independent, the rule of construction as to part performance does not apply where the part unperformed is the essential consideration | 1099 |
| Construction of a contract in relation to the sale of books | 1010 |
| A covenant to pay a certain sum in ease of nonperformance of the contract, held a penalty, and not liquidated damages | 557 |
| Before a contract can be rescinded for any cause whatever, the parties must be placed in statu quo | 5 |
| Parol substitution of a third person for one of several obligors does not release the rest | 12 |
| A person cannot be charged on his agreement to surrender himself to a suit by another, without an averment that the suit was instituted | 379 |
| A notice, before the time of performance, that defendant will not fulfill his contract, will justify an immediate suit. | |
| 996, contra, | 1180 |
| In the case of dependent or concurrent covenants, plaintiff must aver and prove performance, or offer of performance, on his part | 624 |
| COPYRIGHT. | |
| Reporters of judicial opinions delivered in writing cannot appropriate, by copyright, an exclusive property in the publication of such opinions | 877 |
| An arrangement and combination of old materials may be the subject of copyright. | 1035, 1128 |
| A compilation of matter in the form of notes to matter not subject to copyright is protected by a copyright of the entire book | 1035 |
| The copyright is infringed by the adoption of such notes in another edition of the same matter | 1035 |
| The question of violation of copyright may depend upon the value, rather than the quantity, of the selected materials; as where, in an abridgment, only the unimportant parts are omitted, or, under pretense of a review, the substance of an original work is given | 1035 1211 |
| Piratical copying is not confined to literal repetition | 1128 |
| The taking of so much of a copyrighted work as to materially diminish its value, or the appropriation of the labors of its author to an injurious extent, constitutes infringement | 1128 |
| The assignee of a copyright may maintain a suit to enjoin infringement without first establishing his title at law | 877 |
| Complainant must show that he is the author of the copyrighted work, or that he has derived his title from the author | 1128 |
| CORPORATIONS. | |
| A corporation organized under Act Ill. Feb. 18, 1857, has the power to mortgage its property | 126 |
| A corporation may be bound by promissory notes issued by its treasurer in accordance with a usage, as well as by express authority | 1054 |
| A franchise will not be forfeited on the application of individuals; the right belongs to the state alone | 121 |
| But if a bill prays for a receiver and general relief, the court will retain the bill for that purpose | 121 |
| By pleading to the merits, defendant admits the capacity of the corporation plaintiff to sue | 646 |
| A suit against a corporation is abated by a surrender of its charter and acceptance by the legislature pending the suit, where the right of action is not saved by the statute | 1075 |
| COSTS. | |
| A libellant in admiralty who fails as to the greater part of his claim cannot recover costs | 572 |
| Costs refused defendant in the circuit court, where plaintiff recovered less than $500 | 1126 |
| Respondent held entitled to costs where he was called to defend a suit because of an omission in the record by the clerk, which was corrected pending the suit | 406 |
| Costs allowed on reversal in the circuit court on new evidence in an admiralty case, where there was a transparent contrivance to rescue freight from attachment | 575 |
| When docket fee is taxable, and what is considered a “final hearing.” Rev. St. § 824 | 739 |
| It is proper to tax a docket fee where the case is one of a number stipulated to be heard together, the decree in one case to stand as the decree in all | 739 |
| A solicitor's fee for an overruled exception to a master's report is not allowed in the bill of costs | 44 |
| COUNTIES. | |
| A special meeting of the board of supervisors, held without observing the manner prescribed by statute for calling it, is not legal, and cannot initiate a proceeding to subscribe for railroad aid stock | 525 |
| COURTS. | |
| See, also, “Bankruptcy.” | |
| Comparative authority of federal and state courts: Process. | |
| The court which first takes jurisdiction of a controversy and the parties is entitled to retain it to its final termination, and also to take possession of the res, subject of the controversy | 121 |
| The fact that the allegations of the bill were imperfect, and a demurrer was sustained, with leave to amend, does not change the fact of jurisdiction | 121 |
| Jurisdiction once attached cannot be divested or impaired by matter occurring subsequently | 1183 |
| A garnishment sued out in a state court after the institution of a suit against the garnishee in the federal court cannot be pleaded as a defense | 1183 |
| Quaere, whether a sheriff in possession of a vessel has the right to exclude the marshal from executing process to enforce a paramount lien in admiralty | 127 |
| Federal courts—Jurisdiction in general. | |
| The circuit and district courts of the United States cannot send their process into another district, except where specially authorized by law | 911 |
| The grant of jurisdiction over a certain subject-matter to one court does not, of itself imply that that jurisdiction is to be exclusive | 447 |
| The courts of the United States within a state have equal and concurrent power with the courts of the state to render judgments, and carry them into execution | 243 |
| A bill in equity against “D., governor of Texas,” to restrain him from issuing patents for lands included in a grant to plaintiff, revoked by the state, held not a suit against the state | 1006 |
| —Grounds of jurisdiction. | |
| The court has no jurisdiction of a suit in equity for breach of a contract, and for an account, where neither party is a citizen of the state | 678 |
| Where jurisdiction depends upon the parties, it is those named in the record, and not those interested | 379 |
| Persons who are only nominally interested in the controversy cannot confer jurisdiction or take it away | 444 |
| The court may grant a motion to strike out the name of one of defendants where its jurisdiction might otherwise be ousted | 1074 |
| Where the action is between the assignor of a note and his immediate assignee, it is only necessary, to sustain the jurisdiction, that plaintiff and defendant are citizens of different states | 124 |
| The federal court held to have no jurisdiction of an action by an assignee of a note not made payable at a bank, where, under the state law in such race, the maker is entitled to assert, against any indorsee, any equity available against the payee | 1192 |
| The circuit court has jurisdiction, under the judiciary act of 1789, of a suit in equity, brought by the assignee of a bankrupt in one state, against citizens of another state, to recover for a debt due the bankrupt estate | 434 |
| A partnership continues after dissolution for the purpose of liquidation and partition of its assets, and all the partners can be legally sued in the domicile of the firm for such purposes | 608 |
| The circuit court of the state in which a corporation is domiciled has jurisdiction of a suit by its receiver, a citizen of another state, against citizens of the district | 1006 |
| A corporation established by and in a state, and doing business there, is to be deemed a citizen of the state, and the citizenship of the corporators is immaterial to the jurisdiction of the federal courts | 1074 |
| The federal court has no jurisdiction of a hill by a patentee for the specific performance of covenants by a licensee to keep correct accounts, and to permit examination of his books, and to enjoin the use of the patent until such performance | 726 1212 |
| —Circuit courts. | |
| The circuit courts may take jurisdiction of an action by a state | 241 |
| The circuit courts possess full jurisdiction in equity in all cases of fraud, including fraud in obtaining judgments and decrees in other courts, excepting fraud in obtaining a will of real and personal estate, and have concurrent jurisdiction with the state courts in all such cases | 864 |
| The circuit court, on bill or petition filed, may restrain the use of its process by the marshal in a manner contrary to law | 303 |
| —District courts. | |
| A vessel lying, when seized, a half mile from shore off Colloden Point, Long Island, though in Long Island Sound, is on the high seas, and the court into whose district she is first carried has jurisdiction | 141 |
| The fact that persons were temporarily on shore at the time does not affect the jurisdiction | 141 |
| Act Sept. 24, 1878, § 9, giving the district courts jurisdiction in civil cases against consuls and vice consuls, is not in conflict with Const, art. 3, giving the supreme court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls | 447 |
| —Administration of state laws and decisions. | |
| The courts of the United States take cognizance of cases to enforce remedies given by a state statute, where the plaintiff who sues is a citizen of another state | 832 |
| In the construction of the charter of a city the federal courts are bound by the decision of the supreme court of the state | 604 |
| The laws of the several states, constitutionally passed since 1789, are binding on the courts of the United States held therein | 542 |
| The decisions of the highest court of the state are not controlling in the federal courts upon questions of general commercial law, nor are they evidence of a local usage, which controls the law | 495 |
| —Procedure. | |
| The state rules of practice are not binding upon the courts of the United States held within the state | 542 |
| In a suit brought by or against a corporation in the federal court, the state in which the corporation is created and established should be averred | 1074 |
| Other courts. | |
| The circuit court of the District of Columbia has jurisdiction in trespass, although the damages do not amount to $20 | 510 |
| COVENANTS. | |
| A covenant may be pleaded as a release when between the parties, and intended to defeat the right of action | 12 |
| CRIMINAL. LAW. | |
| The district court may designate any place within its jurisdiction as the place of punishment | 137 |
| The district court may direct imprisonment in the state penitentiary in which prisoners are put to hard labor, though hard labor is not imposed by the terms of the sentence. Act June 30, 1834 | 137 |
| The convict cannot object that there is no state legislation authorizing such imprisonment where federal convicts have been received in such prison for many years | 137 |
| The district court does not exceed its power in fixing a part of the term of imprisonment in the county jail, and the remainder in' the penitentiary | 137 |
| The fact that the prisoner is retained for a time, either before or after sentence, in the county jail, does not, in either case, authorize a writ of habeas corpus | 137 |
| The court has jurisdiction to inquire into the legality of the imprisonment of a person held under its own sentence | 1057 |
| CUSTOM AND USAGE. | |
| A custom of a foreign country cannot be set up in opposition to its written laws by one claiming as a citizen of such country | 141 |
| CUSTOMS DUTIES. | |
| Customs laws. | |
| The tackle, apparel, and furniture of a foreign vessel wrecked upon our shore, and landed and sold separate from the hull, are not subject to duty as imported articles, or liable to forfeiture by being landed without permit from the collector | 265 |
| Goods are dutiable under the law in force at the time of their arrival and entry | 836 |
| A declaration that certain duties and rates of duty should be imposed upon certain imports in lieu of the duties heretofore imposed, held tantamount to a repeal of the prior rates of duty | 836 |
| Act June 6, 1872, § 5, exempting certain articles from duty, held not to repeal, by implication, Act June 30, 1864, § 18, placing discriminating duty on articles imported from countries east of Cape of Good Hope. | 104 |
| Rates of duty. | |
| Fresh fish imported frozen together in barrels or large cakes are not exempt from duty as “fish, fresh for immediate consumption.” Rev. St. § 2505 | 103 |
| Though originally caught in American waters, and frozen in Canada, they are still subject to duty, unless identity be regularly proved | 103 |
| The application of the term “similar description” (Act 1862) to imported goods is for the jury | 1168 |
| Such words are to be understood in their popular and generally received meaning,—goods similar in product, and adapted to similar uses, and not necessarily produced by similar processes or methods of manufacture | 1168 |
| Entry: Invoice: Appraisal. | |
| An entry or protest made by an agent is, in law, made by his principal, and is sufficient | 1031 |
| Goods are not fraudulently entered if the entry is made according to the actual cost, no matter how fraudulent the invoice may be | 625 |
| Act March 2, 1799, § 61, in relation to regulations for estimating duties where cost is exhibited in foreign depreciated currency, is not repealed by Act May 22. 1846 | 981 |
| The importer may enter his goods at their cash value in the foreign country, reduced to specie | 981 |
| The amount of “discount for cash” shown on invoice must be deducted from the gross amount in estimating duties | 504, 1031 |
| The appraisers are not bound by prior appraisals of the value of goods of the same kind imported by the same party | 616 |
| An examination of goods by the appraisers is indispensable, but a personal examination of each article, is not necessary. A fair selection of samples is sufficient | 288 1213 |
| Iron purchased in Wales, and transshipped at Liverpool, will be appraised at its market value in Liverpool. Act Aug. 30, 1842, § 16 | 510 |
| The additional charges authorized by law to be added to the appraised value of dutiable merchandise may be added by the appraisers, with the sanction of the collector | 288 |
| Costs of transportation of goods from the interior to the place of exportation are not included in those charges under Act March 3, 1851 | 288 |
| The 20 per cent. penalty for undervaluation (Act July 30, 1846, § 8) is chargeable, whether the importer adds to his invoice, as allowed, or whether an appraisal is made upon the invoice as originally made up | 510 |
| The circuit court has no authority to enjoin the appraisers from taking evidence anywhere as to the value of an importation, or carrying the goods out of the district for that purpose | 616 |
| The secretary of the treasury has no legal power to direct the judgment of the appraisers in valuing goods, or in adding to or subtracting from the charges in invoices, for the purpose of determining market values | 1031 |
| Payment: Protest: Appeal: Action. | |
| Requisites of a protest under Act Feb. 26, 1845 | 510 |
| Proof of a protest, as required by law, is indispensable in a suit to recover back duties paid | 1173 |
| The objection that plaintiffs did not prove that they were the actual parties in interest cannot be taken after verdict | 1173 |
| Customs officers. | |
| The acts of a de facto appraiser are valid. | 288 |
| Shortness of public notice of sale of warehoused goods reported perishable held not per se sufficient evidence of fraud to warrant judgment against the collector | 874 |
| DAMAGES. | |
| The elements of damages for personal injuries from negligence are (1) the bodily injury; (2) the pain undergone; (3) the effect on health, according to degree and probable duration; (4) the expense incidental to attempts to cure or lessen the injury; (5) the pecuniary loss sustained by inability, whether temporary or permanent, to attend to business | 502 |
| Interest on unliquidated damages is not allowed | 420 |
| Where an individual is proved to have been living within seven years, the burden of proving his death lies upon the party who asserts it | 384 |
| DEATH BY WRONGFUL ACT | |
| Act Tex. Feb. 2, 1860, giving right of action for wrongful death, entitles plaintiff to compensatory damages only | 536, 537 |
| Said act is not abrogated by Const. Tex. 1869, § 30, giving exemplary damages for a homicide committed through willful act or omission | 536 |
| DEED. | |
| The acknowledgment and recording of a conveyance of land in Indiana operates as proof of the instrument and notice. They are not necessary to the validity of the deed | 520 |
| Inadequacy of consideration no ground to infer fraud, unless it is so great as at once to strike every person with its grossness | 520 |
| Evidence of identity, which describes the land so as to distinguish it from other tracts, is sufficient for a deed, and also in an action of ejectment | 520 |
| DEMURRAGE. | |
| The consignee is not liable for delays occurring without his fault, where there is no stipulation as to “lay days” or time of unloading | 501 |
| A custom at the port to unload through an elevator, each vessel waiting its turn, will be considered as a part of the contract. | 501 |
| DEPOSITION. | |
| Those who execute a commission are appointed by the court, and, although they may be nominated by the parties, they are not their agents, and their mistakes are not binding on them | 420 |
| A “county commissioner,” in Illinois, is not authorized to take depositions under Act Sept. 24, 1789, § 30 | 1 |
| Form of certificate of magistrate taking deposition under Act 1789, § 30 | 48 |
| A commission is not defective because the commissioners and their clerk were not sworn | 420 |
| If the cross interrogatories are not put to a witness examined under a commission, his deposition cannot be read | 420 |
| It is no objection that the cross interrogatories were not put to each witness until all the direct interrogatories were answered by all the witnesses | 420 |
| The general rule at law is that no evidence shall be admitted but what is or might be under the examination of both parties | 72 |
| A deposition held admissible in equity, where the direct interrogatories were fully answered, notwithstanding the witness died before cross-examination | 72 |
| If a deposition he taken under the act of congress, in the absence of the party, he should take the deposition again, if not satisfied with the examination | 600 |
| A deposition in perpetuam, which has not been recorded according to the law of the state where it is taken, is not competent evidence in the courts of the United States | 864 |
| DESCENT AND DISTRIBUTION. | |
| Creditors must exhaust the personal estate before they can resort to the lands, in equity, whether they were charged by will or by bond | 12 |
| And, in such case, a decree against the executor is not conclusive, but prima facie evidence only against the heir or devisee | 12 |
| Land which descended to the heir is deemed to have been purchased by him to the extent of debts of the ancestor paid by him | 336 |
| As against creditors of the ancestor, land sold by the heir is to be charged to him at its value at the time he sold it | 336 |
| EJECTMENT. | |
| See, also, “Adverse Possession”; “Real Property.” | |
| The action of ejectment existed in the territory of Arkansas from 1807 | 954 |
| Insanity of lessor of plaintiff is no ground of dismissal | 384 |
| The death of the lessor at the time of the demise laid in the declaration will defeat the action | 384 |
| Plaintiff cannot join as defendants persons who hold by several and distinct titles. | 436 1214 |
| Defendants, if not mere trespassers without color of right, may plead in abatement that they occupy in severalty distinct parcels of the land, where such fact does not appear upon the face of the complaint. Civ. Code Or. § 91 | 292 |
| The lessor of the plaintiff, who has a regular paper title, cannot be displaced, unless defendant has a better title, either legal, or such an equitable one as a court of equity would sustain | 801 |
| EMINENT DOMAIN. | |
| Circuit court of the District of Columbia held to have jurisdiction to quash inquisition taken under a turnpike charter | 238 |
| Inquisition will be quashed where the jurors are not disinterested | 238 |
| EQUITY | |
| See, also, “Injunction”; “Pleading in Equity”; “Practice in Equity.” | |
| Where the remedy at law is plain, adequate, and complete, without any reasonable doubt, equity will decline the jurisdiction, provided the objection is taken by demurrer, or is claimed in the answer | 53 |
| Equity has no jurisdiction of a suit on a bond alleged to have been delivered up to be canceled by the fraud of a third person, where no discovery was sought, and where the bill furnished a substantial copy of the bond | 442 |
| A bill will not lie by the holder of bonds of an insolvent city for an injunction and receiver, on default in payment, as the holders have a remedy by mandamus to compel the levy of taxes to pay the bonds | 526 |
| Money paid as a fraudulent preference under the bankrupt act of 1867 may be recovered by the assignee in equity, although the same might also be recovered in an action at law | 591 |
| A suit in equity will lie for infringement of a patent notwithstanding an injunction cannot be granted. (Act July 4, 1836.) | 772 |
| It is no objection to the equity jurisdiction of the federal court that there is a remedy at law under the local law | 795 |
| A court of equity may not decree a forfeiture. It will relieve against a penalty, but not against stipulated damages | 528 |
| Nor will a court of chancery give relief against a bona fide contract of a party, entered into for a valuable consideration | 528 |
| To found a claim for relief in equity, it is not sufficient for the plaintiff to raise suspicion of bad faith, but he must establish it beyond reasonable doubt | 864 |
| A court of equity will never entertain a bill for relief, even in cases of asserted fraud, when the plaintiff has been guilty of gross laches and unreasonable delay | 864 |
| After an interlocutory decree charging executors with a certain sum as rents and profits, held too late on petition to decree a set-off of a debt alleged to be due by an alleged party in interest | 812 |
| Courts of equity follow the law in matters of set-off, unless there is some equity attaching to the particular transactions between the parties | 807, 812 |
| The fact of the existence of mutual demands without some intervening equity between the parties, would not justify a court of equity in allowing a set-off. Mere insolvency does not constitute such an equity | 812 |
| Where a bill is brought on equitable grounds, other matters, though open at law, are subject to inquiry | 64 |
| Equity will not decree, in the first instance, against the party who is ultimately responsible, except where the parties are before the court, and their several liabilities are clearly ascertained | 12 |
| One representing a vessel to be either foreign or domestic is estopped from setting up the contrary | 227 |
| EVIDENCE. | |
| Judicial notice. | |
| The federal court will take judicial notice of the seals of the various states | 6 |
| The courts of the United States are bound to take judicial cognizance of the laws of the different states | 795 |
| Best and secondary. | |
| Oral evidence as to the contents or Purport of an indictment, verdict, or judgment is not admissible | 70 |
| A witness, whose books are out of his reach, so that he cannot have access to them, may testify to their contents | 72 |
| Plaintiff may give parol evidence of the contents of a paper in defendant's possession, which he after notice refuses to produce | 48 |
| Declarations: Admissions. | |
| Conversations between parties, at the time of making a contract, are competent evidence to show the sense which they attached to a particular term used in the contract | 1010 |
| Declarations of plaintiff, after the date of the contract, may be given in evidence by defendant to mitigate damages for a breach, as well as to contradict plaintiff's evidence | 557 |
| When the terms used in a deed are ambiguous, the acts and admissions of the parties are admissible to show their construction | 649 |
| Opinion. | |
| The foundation for testimony to impeach an expert called to testify as to the process of manufacture, quality, etc., of certain fabrics may be laid by asking his opinion as to samples of other fabrics shown him | 1168 |
| Documentary. | |
| A recorded deed, not properly acknowledged, though made notice to creditors and subsequent purchasers under Act III. July 21, 1817, when used in evidence, must be proved as similar instruments of writing | 387 |
| Copies of assignments of a patent, duly certified, are prima facie evidence of the genuineness of the originals on file | 646 |
| Parol, etc., affecting writings. | |
| Recitals in an agreement between two persons, that the note of one was received by the other in payment of a sum that the former was to furnish the latter to be used in his business, cannot be contradicted by parol | 547 |
| When a contract is in writing, conversations previous to and leading to it cannot be given in evidence | 420 |
| Competency: Relevancy. | |
| The copy of a recorded deed may be received in evidence to show that when recorded it had a seal on it, which had been removed from the original | 387 |
| Account of sales of entire cargo held in admissible against one whose interest therein was separate | 420 |
| Handwriting. | |
| The party need not prove the source of knowledge of his witness who swears positively to handwriting | 600 |
| Weight and sufficiency. | |
| The testimony of the crew of a vessel as to their own health will control as against that of persons experienced in the trade in question as to its effect upon seamen. (Reversing 190.) | 188 1215 |
| The testimony of the libellants in admiralty, the one for the other, ought to be narrowly scrutinized and received with caution | 924 |
| EXCEPTIONS, BILL OF. | |
| The court will not seal a bill of exceptions presented two years after the trial, unless satisfied that there was error in the instructions given to the jury | 1180 |
| EXECUTION. | |
| An execution cannot be levied on an undivided part of a mill and its appurtenances where the debtor owns the entirety, although a mill privilege is incapable of severance | 803 |
| A levy should have such certainty as to show to a subsequent purchaser on what the levy was made. It cannot be made certain as against other creditors by parol evidence | 95 |
| A levy on one-half of a lot, without designating which half, or of 100 acres in a section, is too indefinite to convey the title | 95 |
| A defective levy being set aside on motion makes good a junior levy | 95 |
| Where proceedings on execution from a state court are stayed under Code Ga. § 3669, the property is subject to execution from the federal court, or to possession by its receiver | 243 |
| Lien of judgment on real estate held not lost by suspension of proceedings after levy under execution | 1090 |
| In Georgia a writ of fi. fa. for taxes is subject to the same rules as to its mode of execution as writs issued on judgments in favor of private parties | 243 |
| Sufficiency of return to show no property on which to levy | 832 |
| A railroad cannot be cut up into parcels and sold piecemeal on execution | 243 |
| A purchaser at a sale under judgment and execution takes only the right of the debtor at the time of the judgment | 236 |
| A sheriff is protected from liability in obeying the command of an execution on a dormant judgment, and his proceedings cannot be collaterally impeached, especially by the person at whose instance they have been commenced | 832 |
| A person having title to land will not be prejudiced by a sale on process in a suit in which he was not a party, and he cannot move to set aside the sale | 467 |
| The circuit court for the Southern district of Ohio has adopted as a rule of practice the proceeding in aid of execution provided for by the Code of Ohio | 1193 |
| Act Feb. 28, 1839, which adopts the laws of a state in regard to imprisonment of debtors, applies to pending cases | 1032 |
| EXECUTIVE DEPARTMENTS. | |
| The construction of a law by the navy department, and the practice under it, cannot be allowed to alter the law, not to control its construction in a court of justice | 560 |
| The executive cannot alter compensation given to a public officer or agent by act of congress | 560 |
| Instructions not supported by law are illegal, and the inferior officer is not bound to obey them | 355 |
| EXECUTORS AND ADMINISTRATORS. | |
| See, also, “Descentand Distribution” “Wills.” | |
| Allowance of notes given by administrator for valid claims for services during 15 years not set aside on bill by heirs, filed 19 years after settlement by administrator | 864 |
| A report is not binding as to the representatives of a coadministrator who were not before the court | 1110 |
| An administrator who employs an agent to look after the estate of the intestate is personally responsible to the creditors for his acts | 1110 |
| Where the charge is general, the purchaser is not bound to see to the application of the purchase-money, unless he have notice of the debt | 12 |
| A purchaser under a power given by will to the executor to sell real estate for payment of debts is not bound to see that the purchase money is properly distributed among testator's creditors | 1183 |
| If the executor sells a chattel specifically devised, to a person who knows there are no debts, the purchaser takes the property subject to the bequest | 12 |
| The administrator, to whom a patent has been granted for the invention of his intestate, is a trustee holding the legal title for for the benefit of the heirs at law of the intestate | 696 |
| Such administrator need not qualify in the state in which he is suing for infringement | 696 |
| An administrator acting under lettters of administration granted in another state may institute a suit in Pennsylvania without taking out letters of administration there | 467 |
| Each administrator on a joint administration bond is a surety for the other, and is bound for the whole | 110 |
| An action will not lie in Virginia against the sureties in an administration bond, until the plaintiff shall have proved his debt and a devastavit in an action against the administrator | 418, 419 |
| FORFEITURE. | |
| Secret introduction of prohibited articles on board ship by hands, in defiance of regulations, no ground of forfeiture of vessel | 888 |
| The moiety of the proceeds due to the officers and crew of the ship of war that made the seizure must be distributed by the court | 463 |
| FRAUD. | |
| A suit for money obtained on a fraudulent note is not an affirmance of the contract | 323 |
| Though fraud may be inferred from facts and circumstances without direct proof, the presumption is in favor of innocence when they may be explained naturally, consistent with innocence | 54 |
| FRAUDS, STATUTE OF. | |
| A promise to a creditor to pay a debt made by a third person, who had received money from the debtor for that purpose, is not within the statute of frauds, and will support assumpsit | 511 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Bankruptcy.” | |
| A sale of goods in the possession of the seller's bailee is fraudulent as to creditors, unless the possession accompany and follow the sale, or an order be given by the seller, and served on the bailee, to deliver possession to the purchaser | 403 1216 |
| A voluntary conveyance by a debtor is fraudulent as to creditors if made with intent to delay, hinder, and defraud them | 413 |
| A fraudulent intent will, in general, be presumed from the fact that the party conveying was indebted at the time the conveyance was executed | 413 |
| GAMING. | |
| Money paid on a wager cannot be recovered back at common law, but an action will he under the Michigan statute for money lost at play, etc. | 978 |
| GARNISHMENT. | |
| Jurisdiction of circuit court of District of Columbia on fi. fa. issued by order of justice of peace | 878 |
| GIFTS. | |
| Right of creditors of father to gifts made to children | 973 |
| To constitute a donatio causa mortis, there must have been a transfer of property in expectation of death from an existing illness, the donation depending on the condition of death from such illness | 992 |
| GRANT. | |
| See, also, “Public Lands.” | |
| It is not to be presumed that a grantor intends to grant more than he has a right to grant, or that a grantee intends to receive, by way of grant, that to which he has a full right without a grant | 649 |
| In giving an interpretation to a particular clause of a deed, every part of the deed must be looked to | 649 |
| Spanish claim rejected because the conditions were not complied with, and there was no survey of the grant | 472 |
| A later warrantee, without notice, who obtains the first survey, has the better title | 801 |
| The prevalence of the Indian war before the Revolution is no excuse for a neglect by the holder to have a warrant executed beyond the period when the war terminated. | 801 |
| A survey by a deputy surveyor of another district, though specially authorized by the surveyor general, held invalid | 801 |
| An entry takes effect from its date, and not from its place on the entry taker's book. | 919 |
| Of two calls in an entry, repugnant to each other, and both equally notorious, the general call must give way and the locative call be adhered to | 919 |
| HOMESTEAD. | |
| See, also, “Bankruptcy.” | |
| Construction of Florida constitution reserving a homestead to the head of a family, in its application to one who operated a mill upon his farm | 1072 |
| HUSBAND AND WIFE. | |
| Right of husband's creditors to gifts by the husband and by third persons to his wife | 973 |
| INDIANS. | |
| The fee in unsold lands is either in the federal or state governments. The Indians have only a right of use, which, however, cannot be divested, except by purchase or war | 520, 597 |
| An Indian treaty, which cedes lands within certain boundaries, reserving certain parts, does in no respect change, as to such parts, the original right, unless they are referred to therein as grants | 520 |
| Grants and reservations claimed under Indian treaties are strictly construed against the grantee or beneficiary | 597 |
| The treaty between the United States and the Pottawatomie tribe of Indians of November 15, 1861, does not amount to a grant in presenti | 597 |
| Construction of treaties of March 17, 1842, and January 31, 1855, with Wyandot Indians | 1003 |
| A will of the right to a “float” under the treaty of 1855, made and executed according to the laws of the tribe, and proved and allowed by the proper tribunal of the tribe, is valid, and will be respected by the civil courts | 1003 |
| Relation of the Wyandot Indians to the civil laws of the territory of Kansas, in respect to the disposition of property before and after the treaty of 1855, considered | 1003 |
| Lands reserved to individual Indians can only be conveyed with permission of the president; and permission once given cannot be revoked by his successor, so as to affect rights of third persons | 520 |
| INJUNCTION. | |
| See, also, “Equity”; “Patents.” | |
| In courts exercising equitable jurisdiction, injunctions are allowed by the judge in vacation solely under the authority of a statute | 1001 |
| An injunction allowed by a district judge under Act Feb. 13, 1807, expires at the commencement of the term next succeeding its allowance | 1001 |
| The judges of the supreme court have power to grant injunctions in vacation which do not expire with the vacation | 1001 |
| Enforcement of judgment confessed by indorser of note, under agreement with holder to proceed at once against solvent maker, enjoined where the holder delayed action, and the maker became insolvent | 1 |
| The enforcement of a judgment obtained on a note given as the purchase price of slaves cannot be enjoined on the ground that the slaves were unsound, where the debtor still retains possession | 5 |
| Injunction granted to stay proceedings on a judgment at law obtained in a suit instituted in the name of a person not interested, whose name was used only for the purpose of preventing a defense, which the defendant had against the real plaintiff in interest | 1171, 1172 |
| INSOLVENCY. | |
| A state insolvent law, which discharged the debt and the person of the insolvent, held unconstitutional as to the debt, but not as to the person | 471 |
| The United States are not affected by discharges under state insolvent laws | 471 |
| A discharge under a state insolvent law does not entitle a defendant, in the custody of the United States courts on mesne process, to be released on common bail | 373 |
| INSURANCE. | |
| See, also, “Marine Insurance.” | |
| Subsequent insurance in other companies, in contravention of the terms of a policy, will, if it so provides, avoid the same | 157 1217 |
| Certain circumstances held to amount in law to a waiver of the condition respecting the amount allowed to be insured in other companies | 157 |
| Owner must disclose the fact that property insured has been sold under a mortgage | 156 |
| False statements by the assured in the application respecting the existence of a mortgage on the property insured held to avoid the policy | 157 |
| Disclosure of facts relating to title held waived where company's agent knew the facts, and filled in blanks for illiterate assured | 156 |
| What acts and conduct on the part of the local agent who wrote the application and issued the policy will estop the company to set up the existence of a mortgage to defeat the action | 157 |
| A notice of cancellation of a policy need not be formal. Mere conveyance by acts or words of knowledge of cancellation is sufficient | 894 |
| Insurance broker, who procured insurance, held, under terms of policy, to be agent of insured to accept notice of cancellation | *891 |
| A premium note to an insurance company, payable “atsuch times as the directors may require,” is rendered due and payable when the directors have properly required the money to be paid | 125 |
| A premium note made payable to the insurance company, “or the treasurer for the time being,” is a good note to the company. | 125 |
| Circumstances of mere suspicion will not warrant the conclusion of fraud | 157 |
| Fraudulent overvaluation in the preliminary proofs held to be a “fraud” “or attempt at fraud,” within the terms of the policy, and to defeat recovery | 157 |
| Prima facie case is made out by production of policy and proof of loss, delivery of preliminary proofs, and the value of the property destroyed | 157 |
| Where insured took his own life, the burden is on plaintiff to show that he was not conscious of the act. It is immaterial that he was not capable of understanding its moral aspects | 114 |
| INTEREST. | |
| Interest may be given as damages for the nonpayment of money received by the defendant to the plaintiff's use after demand and refusal | 952 |
| INTERNAL REVENUE. | |
| A railroad owned and managed by a state, and whose profits form a part of its revenue, is not liable to taxation under Act June 30, 1864, amended March 3. 1865 | 241 |
| What are banking institutions within Int. Rev. Act, § 110, providing a tax on deposits | 258 |
| Though a deposit in a savings bank exceed $2,000, that amount thereof is exempt. (Rev. St. § 3408.) | *260 |
| An addition of 100 per cent, is authorized for an untrue return, although the return is not willfully false. (Rev. St. § 3176.) | *260 |
| The tax imposed by Rev. St. § 3408 is a tax on the bank, and not on the depositor, and is not subject to the objection that it is not a uniform tax. (Const. U. S. art. 1, § 8.) | *260 |
| Knowledge that the ingress or egress over the premises was to or from a distillery is necessary to subject it to forfeiture for having suffered its use for ingress or egress to or from an illicit distillery. (Rev. St. § 3281.) | 1195 |
| The circuit court has power to enjoin threatened proceedings of a collector of internal revenue to collect a tax which is not authorized by act of congress | 241 |
| JUDGMENT. | |
| See, also, “Bankruptcy.” | |
| Operation and effect. | |
| The jurisdiction of every court is open to inquiry, and want of jurisdiction renders the judgment unavailable for any purpose | 1025 |
| Jurisdiction is presumed as to superior courts until the contrary appears. The jurisdiction of inferior courts must be affirmatively shown by parties claiming benefits there under | 1025 |
| The presumption in favor of the judgments of superior courts ceases when it appears that defendants were without their territorial limits, or that their proceedings were not in accordance with the course of the common law | 1025 |
| The provisions of a statute authorizing a suit against a nonresident upon constructive service of summons by publication must be strictly pursued in order to sustain the judgment recovered | 1025 |
| A'judgment in a state court is conclusive in every other state, and extinguishes the original ground of action | 1117 |
| A prior judgment between parties not nominally the same must be alleged and proved to be between privies in interest, or it is no bar | 1076, 1077 |
| A prior judgment of nonsuit between the same parties on the same subject must be alleged to have been on the merits or the point in controversy, in order to prevent another recovery | 1076, 1077 |
| A prior judgment in favor of evicted grantee, in which he relied upon title under which he was evicted, held conclusive, in a suit to quiet title, upon the witnesses who appeared for him | 567 |
| A judgment of foreclosure will operate as a bar or estoppel only between the parties and their privies, and is inoperative as against prior purchasers from the mortgagor, and their possession under it is not subversive of their right to redeem | 795 |
| A judgment at law does not overreach a prior equity of a third person, bona fide acquired for a valuable consideration | 236 |
| Relief against; Opening: Vacating | |
| Defendant can have no relief in equity against a judgment at law rendered against him on plaintiff's stipulation to discharge it on defendant's performance of impossible conditions | 620 |
| JURY. | |
| The legislature cannot make the right to a trial by jury, in a criminal case, dependent on giving a bond, with surety, for the payment of the penalty and costs | 1135 |
| JUSTICES OF THE PEACE. | |
| Justices of the peace have no authority to bind out an orphan child while the orphans' court is in session | 524 |
| Plaintiff cannot withdraw a part of his account so as to bring the balance within the jurisdiction of the justice, except by consent of defendant | 1178 |
| An order made by a justice upon a matter not within his jurisdiction is void | 1135 |
| The justice has no jurisdiction where the law conferring jurisdiction, so far as it respects the process, is unconstitutional | 1135 1218 |
| LANDLORD AND TENANT. | |
| In an action of covenant for rent the landlord cannot recover interest. | 379 |
| To such action defendant cannot plead that his lessor had not paid the ground rent according to his covenant. | 378 |
| The plea of no rent arrear admits the demise as laid in the avowry. | 1184 |
| LIBEL AND SLANDER. | |
| The words “crim. con.” and “flagrante delicto” defined. | 311 |
| Amendment of answer allowed to permit denial of statements in complaint as to manner and amount of damages. | 750 |
| Other libelous articles in defendant newspaper are admissible to show reckless conduct in publishing libels. | 311 |
| A verdict for $3,875 against a newspaper having a large circulation, for libel in charging plaintiff with adultery, held not excessive | 311 |
| LIMITATION OF ACTIONS. | |
| Where a bond has run for the full term of the statute in the state where it was executed, and the parties continued to reside, it is barred in another state. | 419 |
| Act June 11, 1864, which suspends the running of the statute of limitations during the Rebellion, is not itself a statute of limitation, and is not within the provisions of a state constitution (Tex. art. 12) declaring statutes of limitation suspended. | 1045 |
| In order to remove the bar of the statute, there should either be an express promise to pay, or an admission of the debt, in such terms as imply liability and willingness to pay. | 248 |
| List of debts filed on application for benefit of insolvent law held not an acknowledgment of the debt. | 248 |
| A payment of part of a debt by the executor within the limitation does not take the case out of the statute as to heirs and devisees. | 419 |
| In Alexandria, D. C, the statute of limitations may be pleaded on setting aside the office judgment at the first term. | 1192 |
| LIS PENDENS. | |
| An order for examination in proceedings in aid of execution, without an order restraining the disposal of property, does not operate as a lis pendens. | 1193 |
| MANDAMUS. | |
| The circuit court has power to issue a mandamus to a collector commanding him to grant a clearance. | 355 |
| MARINE INSURANCE. | |
| If the contemplated trade be contrary to the laws of the country or the laws of nations, a policy upon the ship or cargo is void | 1039 |
| If the contract be legal when made, and the performance is rendered illegal by a subsequent law, both parties are discharged from its obligations. | 1039 |
| The insurer on advances is liable only to the extent that the res as security is impaired by the peril insured against. There is no contribution for general average | 262 |
| A clause giving to each party the right to act in recovering, saving, and preserving the property applies only to its relief from present peril, and the temporary care of the property. | 495 |
| A warranty in a policy of insurance that the ship shall not load more than her registered tonnage, means that cargo shall not be carried beyond that amount. | 1051 |
| Necessary and proper dunnage is no part of the loading within this warranty, though it is carried on freight | 1051 |
| A reasonable stop at Santos to avoid enemy's cruisers on a voyage from Guada-loupe to France on the Atlantic held excusable | 891 |
| A waiver of a deviation, made upon a misstatement of fact, is unavailing | 476 |
| The taking possession and repairing a vessel by the insurer after an abandonment amounts to an acceptance of the abandonment | 495 |
| The invoice of the cargo is uniformly admitted as prima facie evidence of its value. | 935 |
| Bill of lading and invoice may be given in evidence, though made out after usual and regular time, where delay is satisfactorily explained. | 935 |
| MARITIME LIENS. | |
| See, also, ‘Admiralty’ ‘Atrreightment’ ‘Shipping,’ etc. | |
| Nature and grounds. | |
| There is no lien for supplies procured from another state by a vessel lying in her home port. | 920 |
| Supplies and materials furnished in a home port give a maritime lien, enforceable in admiralty under rule 12 | 372 |
| By the general maritime law, the presence of the owner does not preclude giving credit to the vessel | 227 |
| It is a question of fact whether credit is given to a vessel or her owners. The equitable ownership does not always determine the question of credit | 227 |
| A lien for supplies or repairs upon a vessel under mortgage, and in possession of the mortgagor, is valid, and will be enforced after the possession is transferred to the mortgagee by decree in a suit in admiralty for possession | 964 |
| A stevedore has a lien upon a foreign vessel for his services, rendered at the request of the master in a case in which the vessel is to stow the cargo | 227 |
| Priority and enforcement. | |
| Salvage claims are paramount to that of the holder of a bottomry and respondentia bond | 446 |
| The lien for cargo sold for necessaries of the vessel held prior to that for materials previously furnished | 986 |
| The first action by which the property is seized is entitled to hold it as against all other claims of no higher character | 477 |
| In the distribution of proceeds after the sale of a vessel in admiralty, parties having liens under state laws are entitled to payment in preference to the owner | 899 |
| A sale under a judgment in a proceeding in rem under the Ohio law for supplies and repairs will pass an unincumbered title to the purchaser. (Reversing 480.) | 477 |
| A mortgage recorded under Act July 29, 1850, prior in point of time, takes preference to liens of material men under state laws | 899 |
| Master not allowed, as against other lienors, to enforce his mortgage by stripping the vessel and selling the sails | 222 |
| Waiver; discharge; extinguishment. | |
| A lien for supplies to a foreign vessel must, as against bona fide purchasers, be enforced with due diligence. Generally it must be soon after the termination of the first voyage | 180 1219 |
| An assignment of the claim is not a waiver of the lien | 180 |
| Where the seaman obtains a commonlaw judgment, which he sells, no libel can be maintained thereupon, either by himself or for the benefit of the assignee | 84 |
| A sale of a vessel by a sheriff, on execution for debt under a state law, does not divest paramount liens in admiralty | 127 |
| Liens under state laws. | |
| Certificate for lien under Laws Mass. 1855, c. 231, must contain the given as well as the surname of the lien claimant | 883 |
| A ship whose legal owner is foreign, and whose flag is foreign, is a foreign ship, so far as material men are concerned, though the equitable owner lives in the state | 227 |
| Such a ship is not within the Massachusetts statute, requiring a record to be made of claims for supplies and repairs to vessels | 227 |
| MASTER AND SERVANT. | |
| Where the original construction and plan of a railroad structure is not faulty, and it is regularly inspected by competent men, the company is not liable to an employe for an injury received from a defect of which it had no notice | 537 |
| MORTGAGES. | |
| Foreclosure of right of redemption by taking possession under Act Me. Feb. 5, 1821 | 795 |
| Sufficiency of entry by mortgagee to foreclose mortgage under St Mass. 1788, c. 22; Id. 1798, c. 77 | 803 |
| A mortgagee of a satisfied mortgage cannot maintain an action at law to recover possession against the mortgagor, or persons claiming under him, by the law of Maine | 1021 |
| A mortgagee is not permitted in a court of equity to set up an adverse possession, except for 20 years, to bar the right to redeem of his mortgagor, or of purchasers under him | 795 |
| Act Me. Feb. 5, 1821, requiring tender, of money due on a mortgage does not apply in a suit in the federal court | 795 |
| Quaere, if the purchasers of an equity of redemption can take the objection that the mortgage was upon a usurious consideration, or, as plaintiffs, can have any relief in equity, without offering to pay the amount due | 795 |
| Where the answer to a bill to redeem asserts a mortgage title in the whole of the premises, it is not competent for defendants to set up a different title, as for a moiety, before the master | 807 |
| The surplus rents and profits, after the satisfaction of the mortgage debt, may be assigned as a chose in action, and the assignee maintain a suit in equity for an account | 807 |
| The rents and profits are incidents de jure to the ownership of the equity of redemption | 807 |
| A second mortgagee, after the satisfaction of the first mortgage, may claim from the first mortgagee, after notice, rents and profits not accounted for to the mortgagor. | 807 |
| A mortgagee will not be allowed to get any advantage out of the mortgage fund beyond principal and interest | 807 |
| If the amount of rents and profits received by a mortgagee in possession cannot be ascertained, resort may be had to a fair occupation rent | 807 |
| No allowance is made for expenditures on mortgaged premises by a mortgagee in possession if their value is not enhanced thereby | 807 |
| A mortgagee in possession, receiving and retaining rents after the debt is satisfied, is liable for interest if be did not act under a mistake | 807 |
| MUNICIPAL CORPORATIONS. | |
| See, also, “Railroad Companies.” | |
| A municipal corporation has no implied power to issue negotiable bonds in payment of a debt which it is authorized to contract | 1099 |
| The power of a municipal corporation to borrow money and to issue negotiable securities therefor depends upon its charter, and the legislation applicable thereto | 96 |
| It has no incidental or inherent authority under the usual grants of municipal powers as a means of discharging its ordinary municipal functions | 96 |
| Bonds to borrow money to erect and repair wharves and to open streets, issued under the general grants of municipal power in a charter, held not binding | 96 |
| Where bonds of a city are issued without authority for money borrowed and actually received by the city, the remedy against the city is not by an action on the bonds, but to recover the money | 96 |
| In an action on negotiable municipal bonds the federal court refused to declare the state statute under which they were issued to be in conflict with the state constitution | 366 |
| A bona fide holder of negotiable municipal bonds issued under express and unrestricted authority may recover thereon, although made payable at an earlier date than directed in the ordinance relating to the mode of executing them | 366 |
| The city of Chicago has not the right to contract for lighting the streets and public buildings for a term of years | 49 |
| If the other contracting party has gone to great expense in pursuance of such a contract, a strong equity may arise in his favor | 49 |
| Where the contract is to run for years, the authority to make it should be clear | 49 |
| A city which has assumed to remove obstructions from a river, which it is under no obligations to remove, is not liable for subsequent damages caused by such obstructions, where it abandons the work without having changed the status of the obstructions | 604 |
| Right of corporation of Georgetown, D. C. to sell real estate for taxes | 231 |
| The corporation of Georgetown, D. C, has power to rent fish wharves | 234 |
| An auctioneer's bond given to the corporation of Georgetown, D. C, by its corporate name, held void | 231 |
| The license must be under the corporate seal | 231 |
| NAME. | |
| Where two names have the same original derivation, or where one is an abbreviation or corruption of the other, but both are taken promiscuously, and according to common use, to be the same, though differing in sound, the use of one for the other is not a material misnomer | 798 |
| If the name be wholly mistaken, and repugnant to truth, the misnomer is fatal | 798 |
| NE EXEAT. | |
| A judge of the district court of the United States has no authority to issue writs of ne exeat | 263 1220 |
| A demand, to be a foundation for a writ of ne exeat, must be an equitable debt or pecuniary claim, and be certain or capable of being reduced to certainty | 945 |
| The affidavit upon which this writ will issue should be positive to a debt, or to the belief of the plaintiff that a certain balance of account was due | 263 |
| Plaintiff was permitted to amend his affidavit | 263 |
| NEUTRALITY LAWS. | |
| A sale by a belligerent of a war ship to a neutral in a neutral port is invalid by the law of nations | 239 |
| A war ship of a belligerent, sold in a neutral port to a neutral, who had full notice of its character, but bought it in good faith for the merchant service, is subject to capture on the high seas, and condemnation as a prize | 239 |
| NEW TRIAL. | |
| New trial granted defendant only on condition of allowing amendment of declaration to save a nonsuit | 252 |
| The effect of an equal division of opinion in the court on a motion for a new trial | 505 |
| NOTARIES. | |
| Where a notary public, in signing a jurat, appended to his name the words “notary public,” and affixed a seal bearing his name and the words “notary public,” held a sufficient compliance with Act Sent. 16, 1850 | 696 |
| OFFICE AND OFFICER. | |
| A magistrate is a person intrusted with power as a public civil officer | 795 |
| PARDON. | |
| A prisoner confined under a legal sentence can voluntarily accept a conditional pardon | 1057 |
| PARTIES. | |
| The general doctrine of courts of equity in relation to parties out of the jurisdiction | 1025 |
| All the creditors must be made parties to a bill for an account to fix the amount of a trust fund for creditors. Without them, the court cannot distribute parts of the fund to those who are entitled to them in severalty | 1154 |
| PARTNERSHIP. | |
| A partnership does not exist from an agreement to form one in the future | 761 |
| An advance of money by one to another in contemplation of their becoming copartners at a future time does not work a copartnership | 761 |
| The conduct of parties alleged to be partners is competent evidence to show the copartnership | 761 |
| Conduct to estop one from denying liability as a partner must have been so open and notorious that all the creditors believed him to be a partner in the firm, and were thereby induced to become its creditors | 761 |
| A purchaser under an execution against one partner becomes a tenant in common with the other partners in an undivided share of the land purchased, subject to all the rights of the other partners and the partnership creditors | 413 |
| A bona fide transfer of an interest in a partnership may be made without writings or vouchers | 1054 |
| After competent evidence has been given to prove a partnership, the declarations of one are admissible to prove that the debt is a partnership debt | 48 |
| A tort of one partner will not bind the firm if not authorized or adopted by the firm, or within its proper scope and business | 932 |
| A usurious loan and conveyance is not within the proper scope and business of the partnership, so as to make the ignorant partner liable, in an action of tort, for the violation of law by his copartner | 932 |
| All the partners, or their representatives, are indispensable parties to a bill filed to procure a dissolution of the copartnership and an account | 1025 |
| Invalidity of a decree in such case against a partner not properly brought into court | 1025 |
| One partner cannot maintain an action at law against the other partner upon a partnership transaction, unless for a balance struck, with a promise to pay | 558 |
| PATENTS. | |
| Patentability. | |
| The degree of superiority of result obtained, or efficiency or economy, by the substituted material, may be such as to amount to a difference in kind | 754 |
| Changes made in the construction and operation of an old machine, so as to adapt it to a new and valuable use, not known before, are patentable | 841 |
| A prior patent, containing merely a statement that a certain result may be accomplished, will not anticipate a patent for a mechanism by which such result is produced | 921 |
| The court will not declare a patent invalid, as anticipated, unless the alleged earlier invention was embodied in distinct form, and carried into operation as a complete thing, and was not merely an unperfected or abandoned experiment | 841 |
| A rude machine, constructed for the purpose of experiment, and subsequently broken up, deserted, and abandoned, will not defeat a patent | 841 |
| Who may obtain patent. | |
| A patent is valid although the invention may have been in use for years anterior to the patent, if the patentee was the original inventor. (Act 1793.) | 700 |
| He who reduces speculation to practice, whose experiments result in discovery, and who then afterwards first puts the public into practical and useful possession of the compound, art, machine, or product, is entitled to the patent, though he did not first conceive the practicability or existence of the thing | 678 |
| Joint invention is the result of mutual contributions of the parties | 841 |
| To overthrow the presumption of joint invention raised by the filing of a joint application upon a joint oath, the evidence must be clear and unequivocal | 841 |
| Prior description, or foreign patent. | |
| A British provisional specification of prior date will not invalidate a patent unless sufficiently full to enable a person skilled in the art to construct or practice the invention | 533 |
| Abandonment: Laches. | |
| The publication of an invention on discovery by a defective specification is not an abandonment | 677 1221 |
| The sale of a peculiar manufacture, which does not disclose the process, is not an abandonment of the discovery | 677 |
| What sufficient laches, either before or after application, to show an abandonment. | 689 |
| A delay of not quite two years from the date of perfecting a design before applying for a patent is not such laches as will defeat the inventor's right, when he has not used or sold the invention for profit, or secreted it | 294 |
| Invention held not abandoned by eight ‘years’ delay in making a new application after an improper rejection, where the patentee pressed his claim in the meantime as his means afforded | 743, 743, 754 |
| Application and issue | |
| In an application for a design for sewing machines in the shape or configuration of the letter G, it was not necessary to describe the working machinery of the sewing machine, which was already well known | 294 |
| A new product or article of manufacture, and the process by which the same is produced, may be the proper subjects of separate patents | 712 |
| The title of the patent ought not to be repugnant to the specification | 664 |
| A patent for an entire machine is valid, although the invention consists only of an improvement, but the monopoly will be limited to the improvement. (Act 1793.) | 700 |
| A patent for a design must be for the means of producing a certain result or appearance, and not for the result or appearance itself | *827 |
| A patent may be valid in part and void in part where the patentee has not fraudulently claimed more than he was entitled to | 712 |
| If the patented machine can be made from the specifications and drawings without the model, the patent is not defective | 985 |
| Defects in the specifications, in order to render the patent void, must be the result of fraudulent or intentional concealment, by tie patentee | 985 |
| A material defect in the specification will not invalidate the patent, unless the patentee intended, by concealment of parts of the machine, to deceive; and, where practical mechanics are enabled to supply any omissions in the specification, such an intention will not be presumed | 1015 |
| The patent for a new and improved process for the cheaper and better construction of a product or manufacture before known in commerce grants nothing but the ex-elusive right to use the particular process. Otherwise where the product itself is new | 664 |
| A patent cannot in a collateral proceeding, be impeached for fraud in procuring it | 130 |
| The presumptions of the law are in favor of the patent and the utility of the invention | 160 |
| The grant of a patent is prima facie evidence that the proofs required by law to be made have been regularly made, though the patent contains no recitals to that effect | 130 |
| A disuse after the patent is granted is not an abandonment of the rights of the patentee | 1015 |
| Form of bill and proceedings in a suit in equity for the grant of a patent under Act July 8, 1870, § 52 | 1069 |
| Extent of claim. | |
| The specification and claims should be liberally construed to cover the actual invention | 631, 664 |
| Claims containing words referring back to the specification must be construed in the light of the explanations contained in the specification | 841 |
| Neither the correspondence between the commissioner of patents and the applicant, nor the proceedings in the patent office pending an application, are admissible to enlarge, diminish, or vary the language of the claim | 735 |
| The words, “by means substantially as described and for the purposes set forth,” construed | 841 |
| A patent “for an improvement in the art of making nails, by means of a machine which cuts and heads the nail at one operation,” is for a machine as described | 1015 |
| A patentee is not bound by the qualities imparted to the article in his description, but by the qualities of the article as derived from the product of the process or compound patented | 708 |
| Interference. | |
| Two patents interfere, within the meaning of Act 1836, § 16, only when they claim, in whole or in part, the same invention | 539 |
| Failure to give notice of taking of depositions in interference proceedings is waived by appearance | 294 |
| Appeals from commissioners' decisions. | |
| The right of appeal is lost where the reasons are not filed within the time fixed by the commissioner, notwithstanding the pendency of a motion for rehearing | 1176 |
| On appeal in an interference case the burden is on appellant to prove that he is the prior inventor | 39 |
| The declarations and conversations of a person made at the time of exhibiting and explaining his invention are a part of the res gestae, and admissible to prove priority of invention | 297 |
| Admissions made by a person in an offer of compromise, voluntarily made without any pending negotiation, and without stating it to be without prejudice, are admissible against him | 297 |
| Conversations and declarations of a party in the statement of an invention will be deemed an assertion of his right at that time, as an inventor, to the extent only of the facts and details which he then makes known | 39 |
| Reissue: Disclaimer. | |
| A reissue is not authorized unless the original patent is inoperative or invalid from a defective or insufficient specification, or the claim of the patentee exceeds his right. (Act 1870, § 53.) | 280 |
| The commissioner, on the application for a reissue, cannot look beyond the patents as' originally granted, with the specifications, diagrams, models, etc., filed or deposited to ascertain the invention. (Act 1836.) | 280 |
| If the patent does not relate to a machine, the only modification that can be made is to make the claim and specification correspond | 280 |
| While enlargement by the use of new instrumentalities is forbidden in a reissue, restriction by the disuse of some of the old is allowable | 855 |
| Where the patent is for a process, reissues for a compound are invalid | 280 |
| A reissue of a patent for an improvement in the manufacture of hard rubber held void as including other vulcanizable gums than Indian rubber | 712 |
| A patent may be reissued in several parts. (Act March 3, 1837, § 5.) | 712 |
| If a patent is reissued in divisional parts, each division must be for some distinct and separate part of that invention | 280 |
| An original patent for a process held properly reissued in two patents, one for a process and the other for the product | 729 1222 |
| A second reissue on surrender of the first must be limited to the invention embraced in the first reissue | 280 |
| The reissue of an extended patent will be for the full term of the extension, regardless of the grant | 318 |
| The decision of the commissioner of patents must he regarded as conclusive in all collateral proceedings | 712 |
| Duration: Extension: Renewal. | |
| Letters patents granted prior to Act July 8, 1870, limiting domestic patents to the term of a foreign patent, are not affected thereby | 533 |
| The provision that “notice of the day set for the hearing of the case shall be published, as now required by law, for at least sixty days,” held to be satisfied by a publication for three successive weeks commencing sixty days before the hearing | 130 |
| The commissioner obtains jurisdiction by the filing of the petition, and it is his duty to cause a proper notice to be published | 130 |
| A renewal to a person as administrator is conclusive on the courts, in the trial of the validity of such renewal, that such person was administrator | 646 |
| Use of the invention by the infringer before the renewal is no justification of an infringement thereafter | 677 |
| After an extension of a patent under Act July 4, 1836, § 18, the original patent becomes virtually a patent for the term of 21 years | 318 |
| A law extending a patent is binding on the courts until repealed, though alleged to have been procured by fraud and misrepresentation | 317 |
| An equitable interest in the applicant is sufficient to sustain an extension | 130 |
| A stipulation that the applicant should be interested to the extent of one-half the proceeds from sales or uses of the patented invention is sufficient | 130 |
| A conveyance made before a grant of extension becomes operative upon the right as soon as the extension has been granted | 130 |
| The fact that a person was an assignee under the original term of letters patent furnishes no presumption that he is interested in the extended term | 696 |
| The assignee of a patent has no interest in an extension by act of congress unless so expressly agreed | 314 |
| Where the act contains no reservations in their favor, they cannot continue to use their patented machines | 317 |
| Assignment. | |
| An assignment of an interest in a patent, reserving to the grantor the whole and sole power of disposal, conveys no legal title, but the assignee is only a cestui trust, to the extent of his interest, in the profits | 677 |
| A grant by a patentee of the exclusive right under his patent, for the unexpired terms of all “patents or renewals of patents owned by him, or in which he may have an interest, issued or to be issued,” carries the right to extensions of such patents, including extensions of patents issued to him | 649 |
| Words “to be held to the full end of the term for which said letters patent are or may be granted,” when used in the habendum of the deed, considered | 130, 135 |
| An assignment of an interest in a patent, made by a receiver, appointed by a state court, of fie property of the owner of the patent, conveys no title to the assignee, because the assignment is not a written instrument signed by the owner of the patent | 772 |
| The right, franchise, or-monopoly granted by a patent, is by the statute made divisible in the category of its locality only | 664 |
| An assignment of an invention before the issuing of a patent is valid under Act March 3, 1837, § 6, though made after an appeal from the commissioner's decision rejecting the application | 110 |
| The assignee may file a bill to annul the patent issued to another, and to have one granted to himself. (Act July 4, 1836, § 16; Act March 3, 1839, § 10.) | 110 |
| It is not necessary that the assignment should be recorded in the patent office before the filing of the bill. It is enough if it he recorded at any time before the issuing of the patent | 110 |
| There can be no assignment of an interest in an extension before its grant | 314 |
| A bona fide purchaser for valuable consideration without notice takes a good title as against a person holding a contract for an interest made before the grant | 314 |
| The assignment of an exclusive territorial right must be in writing, and recorded within three months, to defeat the title of a subsequent purchaser without notice and for a valuable consideration. (Act July 4, 1836, § 11.) | 314 |
| Within the three months an unrecorded prior assignment in writing will prevail | 314 |
| Rights of parties determined in the case of conflicting assignments of rights in an extended patent where one party failed to fulfill his agreement | 307 |
| An assignment of a right of action under a patent need not be recorded | 129 |
| The commissioner's certificate that the annexed “is a true copy,” annexed to various assignments of a patent, attached so as to constitute one document, applies to all of such assignments | 646 |
| Licenses. | |
| The purchaser of the right to make, use, and vend the invention in a particular place buys a portion of the franchise which the patent confers | 638 |
| The grantee from a licensee must pay the license fees stipulated in the license from the patentee | 674 |
| But he will not be enjoined from acting under the license because of failure of his grantor to pay license fees accrued before the conveyance, nor is he liable therefor | 674 |
| The impairment of profits of a licensee by the use of the invention by others, though unlawful, is a good defense to a suit for license fees, where it was stipulated that the fees should cease if the licensee's profits were impaired by use by others | 678 |
| If a patented machine is torn down, and afterwards rebuilt, and in the rebuilding changed so as to lose its identity and become substantially a new construction, its owner will not be authorized to use it under a license limited to the original machine | 841 |
| Sale of patented machine or product. | |
| On the sale and unconditional delivery of a patented article it passes outside of the monopoly of the patent | 638 |
| On the sale, by the patentee of a process and product, of the patented article, the purchaser may use the materials of which it is composed for the manufacture of any articles not themselves protected by a patent | 638 |
| And this is the case although the patented article was bought of the patentee's licensee, who was restricted by the license to a use of the patented product different from that to which it was devoted by the purchaser | 638 |
| The sale or use of the product of a patented machine is no violation of the exelusive right to use, construct, or sell the machine itself | 664 1223 |
| The product and the process being both new and patentable, the patentee may prohibit the sale or use of the composition, unless when purchased from persons licensed by him to use the process and vend the product | 664 |
| Infringement—What constitutes. | |
| Proper tests for determining infringement of a patent for a design | *827 |
| A simple, economical invention is not anticipated by a complex and expensive one | 839 |
| The invention of an improvement gives no right to use the original machine 1015, | 1019 |
| It is not material that the original machine was so inferior to other machines used for the same purpose as to have no intrinsic value | 1019 |
| Where two machines are substantially the same, and operate in the same manner to produce the same kind of result, they must be, in principle, the same | 1015 |
| A patent for a combination is not infringed unless defendant uses, constructs, and operates it in substantially the same way as under the patent. To change the form and obtain a new manner of operating, or to obtain a new and useful result, is subject to a patent | 826 |
| A patent for a dental plate held infringed by replacing parts by new parts made of the materials and in the mode described in the patent | 740 |
| A patent for vulcanized rubber is not infringed by the use of a substance which is rendered plastic, and not hardened by heat | 735 |
| A dental plate made of celluloid held not an infringement of a patent for a vulcanite plate 733; contra, | 740 |
| Facts held not to constitute a dedication of a patented product to a patented use | 646 |
| —Who liable. | |
| The managing directors of a manufacturing corporation, under whose direction it manufactures and sells infringing articles, and its selling agents, are responsible for such infringement, and will be restrained by injunction | 711 |
| A person who used a driven well for household or other purposes on his property held liable to an injunction and accounting. Otherwise as to one who boarded with his mother, and contributed to the expenses of the family | 1109 |
| An admission that a third person had a right to grant a license will estop the owners from prosecuting those who relied thereon | 130 |
| —Remedy generally. | |
| The fact that there is a remedy at law will not prevent relief in equity under Act July 4, 1836, § 17 | 696 |
| —Preliminary injunction. | |
| The only question arising on the application is whether complainant presents an undebatable case | 689 |
| The court will not decide the question of infringement summarily, where it admits of doubt, or the facts are in dispute. Otherwise where the solution depends only upon the construction of the patent | 664 |
| Possession of sufficient duration and exclusiveness may be a sufficient foundation without a trial at law | 664 |
| Not granted where complainant's assignor had never done anything with the patent in the state, and defendants bought their machines in good faith | 135 |
| Not granted where defendant is acting under letters patent which cover his process or machine | 684 |
| Not granted where defendant shows a belief that he has a just defense, and is not a willful pirate of the plaintiff's invention. | 684 |
| Denied where it appears that the infringing articles were manufactured and sold in another district, in which defendant resided | 673 |
| Granted, as of course, where the validity of complainant's patent has been established by protracted and expensive litigation, and the proof of infringement is clear, | 309, 329, 1107 |
| Validity of patent Will be considered as prima facie established by prior adjudication in another court in which it was fully contested and sustained | 692 |
| Abandonment of defense will not detract from the force or effect of a verdict or judgment at law where plaintiff made a plain case | 664 |
| Whether acquiescence can be inferred from failure to bring suit against defendant during the pendency of other suits against other parties, considered | 1107 |
| The bill need not contain a special prayer for an interlocutory injunction | 707 |
| Allegations in the affidavits in answer to the motion may be rebutted by proper testimony | 707 |
| —Defenses. | |
| Want of utility may be a good reason for not issuing a patent, but is no cause for avoiding it | 1015, 1019 |
| Where the defense is that the patentee is not the first inventor, the answer in equity must allege the names and places of residence of those relied on to prove the fact | 925 |
| The defense that the specification did not set forth the invention in full, clear, and exact terms must be made by the answer, to be available, where the record shows that application was made to the court to amend in that particular | 712 |
| Proof of fraud in obtaining an extension will not avail respondents, shown to have consented to the acts complained of | 712 |
| The bill need not aver that the patentee had marked the articles made or vended under the patent as required by Act March 2, 1861, § 13 | 629 |
| To prevent the recovery of damages it must appear, either from the bill or in the proofs, that the patentee has made or vended the articles under the patent | 629 |
| After defendant shows failure of the patentee to mark the articles, plaintiff has the burden of showing that defendant continued to make and vend the articles after notice of infringement | 629 |
| The failure to mark patented articles does not affect the right to an injunction. It only takes away the right to damages | 629 |
| —Procedure. | |
| The executor to whom the patent was issued, though not the sole executor named in the inventor's will, may maintain suit thereon | 712 |
| An action at law may properly be brought in the name of the patentee, in behalf of his licensee, who is damaged by the infringement. (Act July 4, 1836, § 14.) | 699 |
| Replication in an action so brought, where defendant sets up a release from the patentee | 699 |
| A mere licensee, or a party interested as cestui que trust in the profits of the patent, need not be made a party to the suit for an infringement | 677 |
| The party who is immediately injured by the infringement, and who is equitably entitled to the fruits of the recovery, may be joined with the owner of the legal title | 629, 664 |
| The bill may be properly verified by the equitable owner of the patent | 629 1224 |
| Where the suit is brought in the name of the holder of the legal title for the benefit of an exclusive licensee; it will not be discontinued without the latter's consent, but the court may compel him to give security for costs | 642 |
| A bill for the infringement of two patents owned by plaintiff by one article manufactured by defendant is not bad for multifariousness | 385 |
| The fact that the assignment of one of the patents embraces other territory, than that in question does not make the bill bad | 385 |
| Plaintiff must allege all the facts to show title | 1019 |
| The description of the machine as stated in the specification need not be set out where the declaration describes plaintiff's improvement in the words of the patent | 1019 |
| The issue tendered by respondent must be clear and unconditional | 925 |
| An amendment in a suit by a patentee by adding an exclusive licensee as plaintiff not allowed | 648 |
| A plea by a single defendant, alleging that the sales of the infringing articles were made by himself and another, held bad in not alleging that such other person was living, and within the jurisdiction of the court | 725 |
| The court will not send the case to a jury where, after a hearing on full proofs, it is well satisfied of the originality of the invention, the regularity of the patent, and of the fact of infringement | 678 |
| Where the patent is sustained, and infringement found, but only nominal damages are given on a reference, plaintiff is entitled to costs, except of the reference, report, exceptions, and hearing thereon | 40, 45 |
| —Evidence. | |
| Proof of title derived from an administrator | 129 |
| Letters patent are prima facie evidence that the patentee was the first inventor, as against a subsequent patentee | 735 |
| A consent by defendant to a judgment on making a settlement by taking a license under the patent held an admission of the validity of the patent | 677 |
| Testimony of prior use and printed publications, of which no notice was given in the answer, can be considered only to show the state of the art | 160 |
| If it should appear that such testimony clearly established the invalidity of the patent, the court might grant the respondent leave to amend | 160 |
| Proof of mere finding of infringing machines in defendant's possession will support a finding for plaintiff where the answer does not explicitly deny infringement | 129 |
| The court ought to be fully convinced, by a clear preponderance of evidence, before declaring a patent void on the ground of prior knowledge and use | 130 |
| —Decree, and its effect. | |
| A cessation to use the infringing article is no bar to an injunction and account | 631 |
| In a suit for infringement against a person Who had bought his infringing machine from one against whom complainant had obtained a decree for profits and damages, held that injunction would not issue on defendant's giving security to pay any decree rendered against him | 348 |
| Payment of the prior decree will vest the right to further use in defendant | 348 |
| —Accounting: Damages. | |
| The court can decree an account of profits in a suit in equity, brought after the patent has expired, notwithstanding an injunction cannot be granted, and the bill is not one for a discovery | 772 |
| In an action at law the question of damages is exclusively for the jury. Plaintiffs are entitled to actual damages | 985 |
| The jury must find the actual damages sustained by the plaintiff, which the court will treble | 1015 |
| In order to find actual damages, the jury must find, in the evidence, the facts or data from which such actual damages are to be deduced | 642 |
| The uniform license fee fixed by the patentee will constitute the actual damage of the patentee | 642 |
| Method of measuring damages where there is no fixed and uniform license fee | 642 |
| Report of master set aside on the ground that what he had reported as an established license fee was not shown to have been such | 1175 |
| It is no answer to a claim of damages that defendant made no profits by his infringement | 749 |
| Where plaintiff retains a close monopoly of his invention, damages are computed by investigating defendant's profits: but where he grants licenses the uniform rate of fee will control | 749 |
| The measure “of damages for infringement of a patent for an improvement are the profits arising from the improvement, not the profits arising from the entire machine | 879, 882, 930 |
| The patentee must give evidence tending to apportion the defendant's profits and the patentee's damages between the patented and unpatented features of the article sold, or show that its entire marketable value was due to the patented feature | 40, 45, 879, *882 |
| Where plaintiff fails to show the profits arising from the use or sale of the improvement, nominal damages only can be recovered | 879, *882 |
| Where plaintiff fails to give such evidence, he will not be allowed, after a finding of nominal damages, to put in other evidence | 40 |
| It is not the province of the master or the court to suggest the proper line of proof to adopt | 45 |
| Profits or losses from the use of the structure as a whole cannot be considered | 930 |
| A loss made on infringing mechanisms not counted on in the bill, cannot be considered | 930 |
| The question of profits is not effected by the fact that defendant made the infringing contrivance cheaper than he could make the contrivance in the exact form and shape described in the patent | 930 |
| Defendant must account for the profits on repairs sold upon infringing mechanisms previously made and sold by him | 930 |
| The amount paid by defendant in satisfaction of complainant's rights against purchasers from defendant is not a legitimate “charge against the manufacture, and cannot be deducted in accounting for profits | 930 |
| Expenses of commencing and closing out the business are not properly chargeable to the patent | 642 |
| —Violation of injunction. | |
| Injunction against infringement of patents held to be violated by fitting up machinery for another, and keeping it in running order, in a factory known to be manufacturing the infringing articles | 701 |
| After imprisonment for 50 days, defendant, without means of paying fine, was released on his own recognizance | 705 |
| Various particular inventions and patents. | |
| Bungs. No. 87,163, for improved method of rendering wooden bungs impervious to liquids and gases, held valid | 160 1225 |
| Carburetter. No. 93,268, for improved apparatus for carburetting air, held valid and infringed 350; contra, | 352 |
| Dental plate. No. 43,009 (reissued No. 1,904), for improvement in artificial gums and palates, held valid and infringed | 735, 743, 743 |
| Design for handles of table spoons and forks. Patent to Gorham and others, held not infringed | *827 |
| Explosive compounds. Reissues Nos. 4,818. 4,819, held to be invalid as for compounds where the original patent was for a process | 280 |
| Furnaces. No. 45,803, for improved method of desulphurizing and oxydizing metallic ores, held to interfere with No. 41,897, for improvement in stoves | 539 |
| Harvester. No. 74,342, for improvement, held valid and infringed | 921 |
| Horse powers. Reissue No. 1,322, for improvement, held not infringed | 1014 |
| India rubber. No. 3,633 (reissued No. 156, and No. 1,085), for improvement in manufacture of India rubber fabrics, held valid and infringed 638, | 712 |
| India rubber. No. 8,075 (reissued No. 556 and No. 557), for improvement in manufacture and product, held valid and infringed | 631, 646, 685, 701, 707, 708, 723, 729 |
| Photographic shield. No. 21,829, held valid | 772 |
| Pitching barrels. No. 42,580, for improved method of pitching inside of barrels, held valid and infringed | 839, 841 |
| Planing machines. Woodworth's patent and reissue held valid and infringed | 309, 317, 318, 329 |
| Sewing machines. Priority awarded to Johnson over Gibbs for chain stitch | 297 |
| Sewing machines. Gibbs' automatic or self-feeder held not equivalent to Johnson's hand-feeder | 297 |
| Suspender straps. Greeley's invention of an improvement, held to have been anticipated | 1069 |
| Trunks. Reissue No. 7,149 for improvement in corner clamps or protectors for trunks, held invalid for want of novelty | 855 |
| Turning lathe. No. 10,204, for machine for turning and cutting irregular forms, held valid and infringed | 130 |
| PAYMENT. | |
| Payment of a bond is presumed in 20 years if no interest has been paid in that time. If a shorter period is relied upon, the presumption should be fortified by circumstances | 549 |
| A balance of account, for advances made at Boston, upon goods consigned to the plaintiffs at Trieste, held payable at Boston, and to be estimated at the par, and not at the rate of exchange | 978 |
| Foreign charter to pay freight “in cash” on delivery in New York held to mean in specie | 460, 460, 461 |
| A creditor suing for a balance due on account, payable in a foreign country, is entitled to be paid at the rate of exchange | 978 |
| A payment by a partner to his private creditor, who is also a creditor of the partnership, will be presumed to be on his private account | 72 |
| Payments on running accounts, where there is no direction, are to be applied to the earliest items | 72 |
| The creditor cannot elect to what debt to apply an indefinite payment, except where it is utterly indifferent to the debtor to which it is applied | 72 |
| Where a payment is not applied by either party, the court will make the application according to the equities of the case | 787 |
| The right of appropriation exists only between the original parties. The assignee of the one making the payment cannot insist on a specific appropriation | 787 |
| PILOTS. | |
| See, also, “Admiralty.” | |
| A state law requiring that a pilot licensed by the inspectors of steam vessels (Act Feb. 25, 1867) shall also be licensed by the state pilot commissioners when navigating a vessel within the state, held valid | 224 |
| Tender of services by a Hell Gate pilot to a vessel bound through Hell Gate at a point 17 miles east of Sand's Point held, effective | 248 |
| PLEADING AT LAW. | |
| It is sufficient to state the title of the court in the caption of the declaration | 82 |
| The venue, if substantially laid, is sufficient. And so of other averments in the declaration | 82 |
| Pleading puis darrein continuance waives all previous defenses | 578 |
| A plea which does not traverse the facts averred in the declaration, but sets up new matter in defense, admits the case made in the declaration | 1062 |
| On a demurrer to any pleading the court may go back to the first fault | 1062 |
| In covenant, when several breaches are assigned, some of which are sufficient if defendant demur to the whole declaration, judgment must be given against him though part are bad | 379 |
| Over of plaintiff's letters of administration cannot be demanded after pleading to the merits | *947 |
| Declaration allowed to be amended by increasing the damages laid | 1192 |
| The writ and declaration may be amended by substituting the corporate name of the plaintiff for “The Corporation of Georgetown,” on payment of all costs, and a continuance and leave to plead de novo | 233 |
| Non assumpsit, sworn to, puts in issue the execution of the writing sued on, and it then devolves on the plaintiff to prove the execution | 1041 |
| Under a plea of the general issue evidence may be introduced to show fraud or fraudulent representations on the part of the plaintiff as to the subject-matter of the suit | 678 |
| PLEADING IN ADMIRALTY. | |
| A supplemental libel in replication is not necessary where the libelant intends merely to deny the truth of the allegations in the answer. Otherwise where it is sought to avoid them by new facts | 459 |
| PLEADING IN EQUITY. | |
| More than one defense may be presented in an answer in equity, but each should be separately and clearly alleged without condition or qualification | 925 |
| If an amendatory answer repeat what was said in the original answer without varying the defense, it may be considered as impertinent, and will be referred to a master, etc | 339 |
| An answer responsive to allegations in a bill is to be taken as true, unless disproved by the testimony of two credible witnesses, or of one credible witness and facts entirely equivalent to and as corroborative as another witness | 263, 864 1226 |
| A plea in avoidance of, and not responsive to. the bill, stands for nothing as evidence of tlie facts stated in it | 263 |
| Where the replication denies all the allegations in the plea, the plea must be supported by evidence | 263 |
| POWERS. | |
| A power of attorney authorizing a public sale of property will not authorize a private sale of it | 277 |
| PRACTICE AT LAW. | |
| The effect of an equal division of opinion in the court on a motion for a rule or order | 505 |
| Notice to produce deeds, given to attorney of party living at distance, and a reply of references to pages of records, held sufficient | 275 |
| Defendant given leave to withdraw the plea of covenants performed and to file a special plea | 376 |
| PRACTICE IN ADMIRALTY. | |
| Where the marshal arrests the respondent, and also attaches his property on a warrant in the alternative, the attachment mubt be set aside | 894 |
| The stipulation for discharge from arrest is for the appearance of the party to abide by the decree, and not for the payment of the sum decreed | 894 |
| A seaman will be required to file a stipulation for costs when suing in rem to enforce a conditional agreement outside the written articles | 1050 |
| Former owners of tug libeled for negligence may file a cross libel under the fifty-third rule, and have proceedings stayed until security given | 214 |
| The cross libelant must act promptly. A motion for security, made upon the eve of trial, and after the witnesses had been summoned, and case was ready to proceed, comes too late | 214 |
| A default decree in favor of the master was opened where his lien was disputed and it did not clearly appear that the sum claimed was due | 222 |
| Sale of vessel under default decrees not set aside where it brought full value | 222 |
| Default decrees in admiralty, founded upon valid claims, held should not be set aside | 222 |
| Where the proceeds on a sale under a default decree are not sufficient to pay the lien, the default will not be set aside on petition of one alleging an inferior lien | 986 |
| Time for preparation to argue a legal point will not be given where counsel had previous notice that it would arise | 1198 |
| PRACTICE IN EQUITY. | |
| The equity practice of the federal courts, when not controlled by act of congress or the rules prescribed by the supreme court, is in general regulated by the chancery practice of the parent country | 712 |
| A defendant who appears and puts in an answer waives all objections to the regularity of the service of the subpoena | 673 |
| A plea of nonjoinder will be overruled where it appears that the parties omitted are not inhabitants of the federal district, and do not voluntarily appear | 1034 |
| The want of the certificate and affidavit as required by rule 31 is waived where plaintiff demurs to the plea without objection | 725 |
| The cause is not at issue under equity rule 69 unless it is at issue as to all of the defendants not in default, and taken as confessed as to the others | 347 |
| Where complainant unreasonably delays compelling an issue, or taking the bill for confessed as to any of defendants, the defendants as to whom the cause is at issue may have an order to compel complainant to speed the cause or have his bill dismissed | 347 |
| The accidental omission to make technical proof of an uncontroverted fact, such as corporate capacity to sue, may be supplied, in the discretion of the court | 646 |
| The verdict of a jury on a feigned issue is only advisory, and may be set aside, or even overruled | 712 |
| An objection to the competency of a witness cannot be made after publication, if the incompetency was known before the commission issued | 70 |
| On an examination to test the credibility of a witness after publication and before the hearing, the interrogatories should be so framed as not to call for evidence on the merits | 70 |
| After the hearing and an interlocutory decree, a party cannot object before the master to tie credibility of a witness, whose testimony was read at the hearing without objection | 70 |
| A witness, who has given his deposition, which has been read at the hearing, cannot be examined anew before the master, without a special order of the court | 70 |
| Proper practice to test the competency of a witness who has previously testified, after the cause has been referred to a master by interlocutory decree | 70 |
| The master cannot acquire any authority beyond his commission by consent of the parties. He cannot report as to matters embraced in the bill, but not within his commission | 787 |
| Questions raised before the master are considered as waived or abandoned if not made matter of exception, unless it appears on the face of the report that the master has committed an error | 807 |
| Exceptions to a master's report should particularly point out the error alleged | 1128 |
| An exception which merely alleges that the master has arrived at a wrong conclusion upon the evidence is insufficient | 1128 |
| The party excepting should require the evidence upon which the exception is grounded to be stated by the master | 1128 |
| PRINCIPAL AND AGENT. | |
| A clerk, as such, has no authority to bind his employer by an agreement to receive goods from a carrier at an unusual time; nor has a truckman such authority | 512 |
| Defendant, who handles property as agent of plaintiff, is liable to him for the proceeds, although other persons may have been jointly interested with the plaintiff | 1035 |
| Private collateral, taken for himself by an agent when contracting for his principal, will be considered as held in trust for the principal | 54 |
| PRINCIPAL AND SURETY. | |
| See, also, “Executorsand Administrators.” | |
| Change of relation from that of agent to sell and collect to purchaser with right to return goods held a discharge of the agent's surety | 64 |
| Surety held entitled to discharge as to future liability on giving the required notice, notwithstanding unsettled accounts between the principal and the obligee | 64 |
| The omission to at once return a new boud given on the withdrawal of a surety | 64 |
| on the old bond held a presumption that it was accepted | 64 1227 |
| The defense that defendant signed as surety on the representation that another would join held not sustained where the bond contained no room for another signature | 37 |
| PRIZE. | |
| Probable cause is a sufficient justification for a capture. But such protection may be forfeited by subsequent misconduct or negligence | 201 |
| Circumstances which warrant a reasonable suspicion of illegal conduct will constitute probable cause for capture. It is not necessary that there be prima facie evidence to condemn | 201 |
| Effect of false and simulated papers | 201 |
| Captors are bound to good faith and ordinary diligence, and are therefore liable for ordinary negligence | 201 |
| Under what circumstances further proof is admissible in cases of an asserted collusive capture | 196 |
| Further proof in prize causes is never admitted by way of oral testimony, but always by written evidence and depositions | 196 |
| No delivery on bail will be made to either captor or claimant until after hearing | 196 |
| A sale is preferable to an appraisement when the value is to be ascertained for the purpose of a delivery on bail | 196 |
| If the vessel and cargo are subject to condemnation, claimants cannot contest the competency of libelants alone to control the proceeds of the forfeiture | 573 |
| Where title of claimants and captors was defeated, and the United States interposed a claim, the property was condemned to them | 155 |
| A loyal citizen converted his property into a vessel and cargo for the purpose of withdrawing himself and effects from the enemy's country. held not subject to capture as enemy's property. (Reversing 172.) | 173 |
| Vessel and cargo discharged from seizure and restored to the claimant, with costs and damages, because of a wrongful arrest | 471 |
| Cargo restored, but without costs or damages, there being probable cause for the capture, it being laden in an enemy bottom during the war | 179, 180 |
| Vessels and cargoes were held to be neutral property, and ordered to be restored to the claimants. (Reversing 573.) | 575 |
| Vessel and cargo condemned for an attempt to violate the blockade, and because of false papers as to destination, and because the cargo was partly contraband of war, on transportation to a port of the enemy | 265 |
| Vessel and cargo condemned for an attempt to violate the blockade of Wilmington. N. C. | 963 |
| Vessel and cargo condemned as enemy property, and for a violation of the blockade of Galveston | 38 |
| Vessel and cargo acquitted of a violation of, or of an attempt to violate, the blockade of Beaufort, N. C. (Reversing 573.) | 574 |
| Vessel and cargo condemned for attempt to violate blockade of New Orleans | 436 |
| PUBLIC LANDS. | |
| See, also, “Boundaries” “Grant” “Indians.” | |
| A survey made without an entry is of no validity, nor is the survey valid, after an authorized or ratified withdrawal of the entry, and the land may be located by another warrant. (Act March 2, 1807.) | 94 |
| Claiming the land, and exercising acts of ownership over it, which has been located by the withdrawn warrant, held a ratification of an unauthorized withdrawal | 94 |
| Act May 30, 1862, does not change the qualifications of pre-emption claimants prescribed by Act Sept. 4, 1841, or the limitations imposed thereby | 433 |
| Rights of scrip or certificate holders in the New England Mississippi Land Company. | 392 |
| QUIETING TITLE. | |
| Relief in equity cannot be had, in Maine, to remove a cloud from the title to land, caused by an invalid levy, inasmuch as a plain, adequate, and complete remedy at law is provided by Rev. St. Me. c. 104, § 6 | 1001 |
| RAILROAD COMPANIES. | |
| See, also, “Bonds” “Master and Servant” “Municipal Corporations.” | |
| Town held liable on aid bonds issued to new corporation in which old corporation was merged under general law after subscription to stock | 1042 |
| Const. Tenn. art. 2, § 29, and Act Tenn. Jan. 23, 1871, c. 50, do not authorize the issue of municipal bonds for stock subscriptions | 1099 |
| The holder of coupons of negotiable railroad aid bonds cannot recover thereon without proof of a compliance with the recited condition that the railroad shall be constructed in a certain manner | 1099 |
| The time for the construction of the road as conditioned in railway aid bonds in which it was not specified held to be seven years, as required by an amendatory act passed before their issue | 1099 |
| A requirement to pay for subscription for stock in “not exceeding” six annual installments, with authority to issue “short bonds” bearing 6 per cent, interest, held imperative, and 10 years 7 per cent, bonds are invalid upon their face | 1099 |
| Earnings of mortgaged railroad held subject to attachment by general judgment creditors until mortgagee took possession | 403 |
| A railroad company must lay its tracks and construct its road so as to render it safe for the public as well as for its employes | 537 |
| REAL PROPERTY. | |
| See, also, “Adverse Possession” “Boundaries” “Deeds” “Ejectment” “Grant” “Mortgages” “Public Lands.” | |
| Permanent and useful improvements made upon the land may be given in evidence in mitigation of damages in an action of trespass for mesne profits after recovery in ejectment | 376 |
| RECEIVERS. | |
| The creditors of a corporation are neither proper nor necessary parties to a suit by its receiver to protect its property | 100 |
| RECORDS. | |
| Courts of record may at any time, and without notice, correct the mistakes and supply the omissions of their clerks or recording officers, so as to make the record conform to the truth of the case | 400 |
| They are the exclusive judges of the necessity and propriety of so doing, and of the sufficiency of the proofs offered to show the necessity of such action | 400 1228 |
| RELEASE ABED DISCHARGE. | |
| Where, on a joint decree against the executors of two persons, a creditor receives a moiety of the debt from the representatives of one of them, and covenants not to levy the residue of the decree upon the estate of that one, it does not discharge tie representatives of the other | 12 |
| RELIGIOUS SOCIETIES. | |
| See, also, “Associations.” | |
| An unincorporated religious association cannot hold property in its assumed name, nor can the directors and their successors in office hold it, but another may hold it by a conveyance in trust | 528 |
| REMOVAL OF CAUSES. | |
| Right of removal. | |
| Act April 20, 1871, does not authorize removal in every case in which the United States courts would have original jurisdiction, but only in the circumstances specified | 91 |
| A claim of title to land under a sale by a marshal upon fi. fa. issued from a federal court is not good ground of removal | 112 |
| Such a case cannot be removed unless the validity or effect of the judgment, or the proceedings and sale under which the plaintiff claims title, is brought in question | 112 |
| To remove a case under Judiciary Act 1789, § 12, each defendant must be either an alien or a citizen of a state other than that of the state to which plaintiff belongs | 436 |
| The alien defendant may remove a case where the other defendants are not served and do not appear | 436 |
| Whenever the controversy is between citizens of different states, the cause is removable, though some of the persons on opposite sides may be citizens of the same state. (Act March 3, 1875.) | 444 |
| Act March 3, 1875, invests the federal courts with jurisdiction, arising from diverse citizenship of litigant parties, coextensive with the judicial power conferred upon the general government by the constitution | 444 |
| If some of plaintiffs and some of defendants are citizens of the same state, the removal must be sought by all the plaintiffs or all the defendants. (Act 1875.) | 444 |
| But if all the plaintiffs on the one hand, and all the defendants on the other, are citizens of different states, then any one or more of either may remove the cause | 444 |
| The whole suit must be removed, or no removal can take place. (Act 1875.) | 444 |
| Act March 3, 1875, does not repeal that part of Act July 27, 1866, which authorizes removal of separable controversies | 444 |
| A suit against tenants in common or persons claiming to be such, concerning the title to or possession of land, is divisible and removable by either defendant under Bev. St. § 639 | 588 |
| The substantial controversy in a suit to quiet title brought against resident grantors and nonresident grantee of land held to be wholly between plaintiff and the grantee, and wholly removable | 588 |
| Where the landlord or real owner appears as a party, being called in by the tenant in trespass to try title in Texas, the controversy is one wholly between him and the plaintiff, and, if he is a citizen of another state, he may remove the cause. (Act March 3, 1875.) | 1152 |
| Time of removal. | |
| The application for removal by the landlord or real owner in trespass to try title in Texas is in time if made on the day after he becomes a defendant, though this be not the first term to which the suit was brought, provided the cause had not been previously at issue or ready for trial | 1152 |
| The state court cannot agree to consider the petition to have been filed as of a preceding term | 320 |
| Effect of removal: Subsequent proceedings. | |
| The matters raised by the application to remove, and passed upon by the state court, and made the subject of bills of exception by plaintiff, cannot be inquired into on a motion to remand, based alone upon the matters contained in the transcript sent from the state court | 1152 |
| The case stands in the circuit court as it did at the time of the removal in the state court | 339 |
| On removal of a criminal case under Rev. St. § 643, the prosecution is not commenced until the finding of an indictment | 243 |
| Upon the trial the right of the parties to challenge jurors is regulated by the law of the United States | 245 |
| Upon the trial of an indictment for murder, the accused is called to answer to the offense as defined by the laws of the state | 245 |
| REPLEVIN. | |
| Replevin lies in the circuit court in Massachusetts for writings or documents of value unlawfully detained | 303 |
| Property taken from an officer who held the same on a levy under execution will be ordered restored | 1183 |
| Reporters. | |
| See “Copyright.” | |
| RIPARIAN RIGHTS. | |
| The owner below the line of a riparian proprietor cannot subtract from the proprietor above by swelling or backing the water upon him | 578 |
| Accretions formed after the entry on government land bounded by a meandered line on a river or lake belong to the party holding title under the entry | 961 |
| Otherwise where swamp or waste lands lie between the meandered line and the river or lake | 961 |
| SALE. | |
| See, also, “Contracts”; “Vendor and Purchaser.” | |
| The question whether the title has passed depends upon whether anything remains to be done by the seller | 87 |
| The title does not pass on delivery where the purchaser has agreed that the goods shall remain the property of the seller until payment of purchase price | 120 |
| On a dispute whether the price—$3.25—on the sale of shingles was for a hunch or for a thousand, held that, unless both parties had understandingly assented to one of those views, there was no special contract as to the price | 1126 |
| The purchaser, having sold the shingles after the seller refused to accept his understanding or their return, held liable for the amount for which he sold them, after deducting fair compensation for his services | 1126 |
| The examination by supercargoes of goods purchased, and their expression of satisfaction to the purchaser, held not conclusive of quality if in fact the goods were not as represented | 420 1229 |
| It is no excuse for the nonperformance of a contract to deliver “prime” “first chop” teas that the season of the year when the teas were to have been delivered was unfavorable to the best teas being at market. | 420 |
| The sale of imported goods of the quality contracted for compared with sales of the goods as delivered held to furnish the rate, but not the amount of loss | 420 |
| No damages are to be allowed for any profit or gain the plaintiff might have obtained by exchange or otherwise | 420 |
| It is no defense to an action for the price of goods sold that the vendor knew that they were purchased to be sold in another jurisdiction, in violation of its law, unless ne did or agreed to do some act in furtherance of the illegal intention | 1093 |
| Assumpsit in the nature of an action of deceit will lie for false representation as to soundness, though there is a bill of sale under seal warranting title | 977 |
| SALVAGE. | |
| Right to salvage compensation. | |
| The seizure and bringing into port of a vessel in distress in command of mutinied slaves, who had killed the commanding officers, held a salvage service | 141 |
| Salvage awarded in such case notwithstanding treaty provision requiring restoration of vessel taken from owners within jurisdiction | 141 |
| The court awarded one-third the appraised value of vessel and cargo as salvage compensation, but refused salvage as to the slaves, they having no value as such in the district (Connecticut), and there being no law under which they could oe sold | 141 |
| Contracts for salvage services. | |
| Vessel towing disabled steamer held not entitled to contract price where the hawser parted, and the latter proceeded under sails, but entitled to salvage | 61 |
| Amount. | |
| Compensation fixed by the court, upon consultation with merchants and owners of ships as to the value of service rendered | 208 |
| Salvors of derelict vessel stand on same footing as other salvors | 249 |
| Two-fifths allowed where vessel with valuable cargo saved derelict vessel of little value without much risk or labor | 249 |
| $2,800 awarded where valuable steamer saved, with little danger, in a few hours, brig and cargo valued at $95,000 | 213 |
| Remedies for recovery. | |
| The rules in admiralty are not to be regarded as restrictive, but as enumerative of the more common remedies | 87 |
| Where the depositary of saved property has rendered himself liable for the lien of the salvors, he may be proceeded against in admiralty | 87 |
| Apportionment. | |
| Distribution of salvage between owners and men | 251 |
| SEAMEN. | |
| The contract of shipment. | |
| A description of a whaling voyage “to the Northern Pacific Ocean and elsewhere” is defective, having no termination of time and place, and the contract is void | 341 |
| A whaling voyage is properly a cruise for taking whales, and does not include a trading voyage to dispose of the cargo after it is obtained | 341 |
| A voyage between the West Indies and the United States is not within Act June 7, 1872, requiring seaman's contract to be executed before shipping commissioner | 900 |
| Articles for a voyage from Salem, Mass., to Goree and a market, and back to a final port of discharge in the United States, do not authorize an intermediate trading voyage among the islands and on the coast of Africa | 163 |
| Where a new intermediate trading voyage is undertaken, a seaman having well-grounded apprehensions of danger to health may leave vessel at port at which a substitute may be procured | 163 |
| It is not necessary that a seaman shipping in a foreign port should sign articles | 459 |
| A mate may be discharged before leaving the home port, for intoxication rendering him disobedient, insolent, and negligent in his duty | 11 |
| Seamen may be discharged at the inception of the voyage for failure to provide clothing and bedding suitable for the voyage | 209 |
| The master may discharge seamen at the inception of the voyage where they are quarrelsome and intend mischief | 209 |
| Seamen, so discharged, are entitled to demand wages only for the time they have actually served | 209 |
| A mate, succeeding to the command of the ship upon the death of the master, does not thereby lose his character as mate, but may sue in the admiralty for his wages | 205 |
| He is also entitled to be cured at the expense of the ship, in the same manner as a seaman. And where put on shore, from sickness, for the convenience of the ship, his expenses for medicines, advice, attendance, and board, are to be borne by the shipowner | 205 |
| Where a voyage was broken up by a sale of the vessel on execution, the seamen were allowed wages up to the time of the sale, and compensation for their time and expenses in returning to their home port | 127 |
| Mariners who properly remain by their vessel may recover the amount paid for necessary subsistence not furnished by the master | 127 |
| Conduct of master or mate in respect to seamen. | |
| A minor placed aboard ship by his father to improve his health, and to learn navigation, is subject to the discipline and punishment of an ordinary seaman, though a person of refinement and gentle breeding | 857 |
| Measure of damages for excessive or unlawful punishment in such case | 857 |
| A master sued for an assault and denying the same in his answer, cannot, on proof of the assault, rely upon a justification | 215 |
| Wages—Right to. | |
| A seaman disabled and leaving the privateer before departure on her cruise is not entitled to share in prizes | 336 |
| Where by the articles the crew of a fishing vessel were to make the fish, readiness and willingness to make the fish, held equivalent to actual performance | 605 |
| Where no agreement in writing is made as required by law, seamen may quit at any time, and recover, for the time actually served, wages at the highest rate paid on the voyage, or the price agreed upon | 920 |
| Seamen who ship on a trading voyage will be decreed wages to the last port of delivery, regardless of the agreement for freight where the vessel is lost before her return | 174, 639 |
| A stipulation not to demand wages until arrival of vessel at final destination will not bar wages | 174 1230 |
| An attachment of a vessel on mesne process does not break up the voyage | 127 |
| Seamen forcibly put on shore by the captors, from a vessel, afterwards ransomed, and arriving at her destination under a new crew, held entitled to wages, subject to a contribution for the ransom | 441 |
| The net proceeds of the ship and cargo, at the port of discharge, and not the invoice cost of the cargo, with the wages of all the persons belonging to the ship, must contribute to the ransom | 441 |
| —Remedies for recovery. | |
| A seaman's lien is not waived by receiving notes on settling attachment proceedings under state law, where they afterwards become worthless | 84 |
| A mariner's lien will not be considered as waived by anything less than an express contract | 84 |
| Seamen shipped by direction of one claiming to be the master, held to have no lien, where the voyage was never performed, and there was no evidence of the alleged master's authority | 391 |
| A libel for the lay of a minor who shipped under direction of his father, who furnished his outfit, is rightly brought in the father's name | 341 |
| A minor may recover his wages as seaman upon a libel promoted by his father as prochein ami, where the father has agreed that the son may receive his own wages | 895 |
| The voyage ends when the vessel is safely moored at her port of final destination | 965 |
| Libel will not be dismissed where action brought prematurely becomes perfected before stipulations and answer of respondent are filed | 965 |
| The crew of a steamer, comprised of sharesmen and strikers engaged in porgy fishing, have a maritime lien upon the vessel for their wages, but the master does not | 895 |
| Such crew, upon being refused payment for their services at the time agreed upon, may enforce their lien upon the vessel before their term of service has expired | 895 |
| The 10 days' exemption from arrest of a ship under Rev. St. §§ 4546, 4547, is waived by appearance, claim and answer without protest, after that time has elapsed | 895 |
| The provisions of Rev. St. §§ 4546, 4547, apply only to merchant ships and their masters and crews | 895 |
| Title 51, Rev. St (“Regulation of Fisheries”), does not apply to vessels and crews engaged in porgy fishing | 895 |
| The crew of a fishing vessel, not having signed shipping articles as required by title 51, Rev. St., may collect their shares or wages | 895 |
| Title 53, § 4612, Rev. St., applies only to merchant vessels | 895 |
| A stipulation that seamen shall not sue for wages until the vessel is unladen, if fairly made, is binding upon them | 965 |
| But in such case, leaving the vessel before she is unladen after her arrival is not a desertion which works a forfeiture of wages | 965 |
| —Deductions: Extinguishment, etc. | |
| There is no inflexible rule requiring the court, in all cases, to withhold wages for a wrongful refusal of duty | 459 |
| A mate, because improperly put off duty, and charged with incompetency and impropriety, is not justified in refusing to return to duty when ordered | 459 |
| The maritime rule that desertion works a forfeiture is not imperative; and the court may consider palliating circumstances, not amounting to justification, and mitigate the penalty to reasonable indemnity to the owners | 341 |
| The only case of desertion in which the forfeiture is absolute of the whole wages is when all the requisites of the statute have been strictly observed. (July 20, 1790.) | 341 |
| SET-OFF AND COUNTERCLAIM. | |
| Courts of equity, independently of any statute of set-off, do not exercise jurisliction to set off mutual disconnected debts, unless where the dealings of the parties imply it as matter of agreement, or mutual credit | 1144 |
| Where a set-off or defense to a debt was available at law, and the party omitted by laches to take advantage of it, it seems a court of equity will not relieve him | 1144 |
| Courts of equity, in cases of set-off, follow the law | 72 |
| How far notice of a set-off is necessary to defeat the rights of an assignee | 1144 |
| Quaere, whether a party, who has procured an assignment of a debt of the plaintiff, can set it off against his own debt due to the plaintiff, which was previously assigned | 1144 |
| SHIPPING. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Bottomry”; “Carriers”; “Charter Parties”; “Collision”; “Demurrage”; “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage”; “Wharfage.” | |
| Public regulation: Title to vessel. | |
| Clearing for one legal port with design to proceed to another legal port, in order to conceal the real voyage, for mercantile purposes, is not an offense | 302 |
| If such a vessel be captured, the owner may libel against the capturing vessel and her captain, for reparation of the loss and damage sustained by such capture | 302 |
| A mortgage recorded as prescribed by Act July 29, 1850, is binding upon all parties | 899 |
| The circuit court will administer equitable relief in a case where it is sought to recover back interests in vessels conveyed under a usurious contract | 939 |
| Where a reconveyance is impossible, the value will be awarded | 939 |
| Liability of vessels or owners, etc. | |
| The United States may have an action against a vessel for tonnage duties | 227 |
| In admiralty, the owner and vessel are liable for injuries done to person or property by the negligence of master and crew only where the owner would, under the same circumstances, be liable in a suit at common law | 255 |
| The master. | |
| The master in a foreign port represents both owners and shippers not having any other agent on the spot | 264 |
| The master has no lien on the vessel, for his wages or perquisites, enforceable in admiralty | 956 |
| Having no lien for services as master, he cannot maintain a libel for additional services as clerk or manager without showing a special contract designating the extra compensation | 84 |
| Quaere, whether disbursements made by the master for the ship would create a lien enforceable in admiralty | 956 |
| Quaere, whether a master can proceed in personam in admiralty for his wages | 956 1231 |
| SLAVERY. | |
| Length of time does not raise a presumption, against a slave, that his owner took the oath required by law | 46 |
| Burden of proof on petition for freedom. | 348 |
| Bight of freedom on sale of slave and of her children | 916 |
| Proceedings under the fugitive slave act (Sept. 18, 1850) | 6 |
| Validity of power of attorney to arrest a slave under such act | 294 |
| Action for the rescue of a slave. Pleadings, evidence, and damages therein | 424 |
| SPECIFIC PERFORMANCE. | |
| A specific performance will not be decreed at the instance of the vendor, unless his ability to make a title be unquestionable | 12 |
| The vendee's objections may be extended to incumbrances of every description, which may embarrass him in the full enjoyment of his purchase | 12 |
| Where time is material, the right to specific performance may depend upon it | 12 |
| If a contract is unreasonable when made, or becomes so afterwards, equity will not interfere, if the applicant is at fault, though mere inadequacy of price is no ground of refusing assistance | 12 |
| To sustain the vendee's allegation that the contract was abandoned by implication, the conduct of the vendor ought to be such as to justify a reasonable man in believing that he acquiesced | 12 |
| STARE DECISIS. | |
| The principles upon which the several circuit courts of the United States are bound by the decisions of each other examined and discussed | 754 |
| One circuit court which fully considers and deliberately decides a question will be followed by the other circuit courts | 754 |
| STATES. | |
| The grant of unqualified power to the general government to do a particular act is considered exclusive, where its exercise by the state government would be inconsistent therewith | 542 |
| STATUTES. | |
| A statute requiring execution against the principal before suing on appeal bond, in force when the bond was executed, held to be the law of the contract, and it is not affected by the repeal | 832 |
| The construction given to a statute by the officers appointed to execute it, and acted upon for a long term of years, though not conclusive, is entitled to great consideration by the court | 130 |
| TAXATION. | |
| The question whether property is benefited by being included within corporate limits, with a view to determine the validity of a tax, is a legislative, and not a judicial, one | 550 |
| Restriction of taxation to the proceeds alone of “mines and mining claims” does not exempt surface improvements. (Const. Nev. art 10.) | 550 |
| The lien of the state for taxes upon railroad property in the custody of the law is prior to all other liens whatsoever, except for judicial costs | 243 |
| A sale of land under several levies is void if one of the levies is illegal | 1199 |
| Tax deed held void where there was added to the sum assessed the price of a revenue stamp | *151 |
| The statute of limitations held inapplicable in such a case | *151 |
| Recitals in tax deed in Wisconsin held sufficient compliance with the statute | *151 |
| TORTS. | |
| A tug in charge of her pilot, during absence of master on shore, went alongside a ship at anchor, and took off eight sailors and their baggage, against remonstrance of ship. held, that the tug was not liable for the tort, and the bonding of the vessel when sued for the tort was not a raitification of the pilot's acts | 278 |
| TOWAGE. | |
| See, also, “Collision.” | |
| A lien attaches for towage services rendered in the home port | 169 |
| An action to recover damages arising out of the negligent performance of a towing contract rests in contract and not in tort | 624 |
| Where the tug acts pursuant to the direction of the owners of the tow and a pilot employed by them, it is not liable for resulting damages | 624 |
| The burden is on the tug to show that the object under water, which the tow struck, was one the presence of which the tug was not bound to have known | 212 |
| Tug held not in fault when, having a clear passage, she was forced ashore, with her tow, by a cake of ice which swung on the tide | 187 |
| Tug held relieved from responsibility where master of injured tow refused to be towed to a place of safety, and tow sank | 178 |
| Tug held not liable for loss of canal boat by striking pier, where it did not have strength enough to bear ordinary contacts and blows | 178 |
| Tug held negligent in casting off tow at destination without inquiring as to the condition of one of the boats, with which she had come in violent contact during the day | 416 |
| TREATIES | |
| The stipulations in a treaty between the United States and a foreign nation are paramount to the provisions of the constitution of a particular state | 801 |
| Construction of treaties of 1762-83, between Spain and England, as to right to cut mahogany in Honduras | 935 |
| TRESPASS. | |
| Trespass vi et armis will lie for the master against one who beats his slave, although there should be no loss of service | 1 |
| In trespass, defendant cannot justify under the general issue | 510 |
| In trespass quare clausum fregit, plaintiff must prove a trespass in the county in which the suit is brought | 831 |
| An entry on the part of land lying within the county, with intent to do injury in the part lying without the county, is unlawful | 831 |
| TRIAL | |
| After defendant has closed his testimony, plaintiffs will not be permitted to give additional evidence on a point, upon which they had already examined witnesses, and defendant has proved nothing new. Otherwise where defendant has brought out other facts or transactions | 420 1232 |
| Where a finding in favor of plaintiffs would be contrary to evidence, the court may instruct the jury to find a verdict for defendant | 510 |
| What defects in pleading title are cured by verdict | 1019 |
| On overruling motion for new trial, judgment will be entered for the amount of the verdict, with interest from the day it was rendered, both in actions of contract and tort | 309 |
| TRUST. | |
| A trustee acting bona fide under invalid letters testamentary should not be charged with interest, where the property did not earn interest | 992 |
| USURY. | |
| The purchase of a rent charge of $1,000 per annum for $12,500 held not usurious, where the legal rate was 6 per cent | 783 |
| A lease at a yearly rental of $270, taken from a mortgagee on a mortgage to secure a loan of $3,000, held void for usury. | 787 |
| VENDOR AND PURCHASER. | |
| See, also, “Specific Performance.” | |
| A simple hope, expectation, or possibility of benefit is a sufficient consideration to support a contract of sale | 54 |
| A person holding a bond for a deed whose conditions have been broken acquires no title to timber which he has cut on the land without the consent of the owner | 1186 |
| The words “sale in gross,” when applied to the land itself, are synonymous with “contract of hazard,” and preclude any claim for abatement in the purchase money | 1120 |
| Notes given for taxes on real estate in Georgetown, D. C., held to create an equitable lien on the land, of which a purchaser was bound to take notice | 236 |
| A purchaser by deed will take a fee, as against one holding from his grantor a prior bond for a deed whose conditions have been violated | 1186 |
| A deed, although not witnessed, acknowledged, or recorded, is valid at common law between the parties and their privies, and against those taking with notice thereof | 588 |
| The grantee in a conveyance obtained throught the agency of a third person is bound by the knowledge of such agent as to the existence of a prior unrecorded deed | 588 |
| Notice of a claim is sufficient if it put the party on inquiry | 520 |
| A vendor's lien for unpaid purchase money does not exist, as against a bona fide purchaser without notice | 392 |
| A vendor's lien will not be decreed where the parties do any unequivocal act by which they clearly show that they do not contemplate such a lien to exist | 392 |
| If the vendor take a distinct security for the money, either of property, or of the responsibility of a third person, the lien is waived | 392 |
| But merely taking the note or bond of the vendee himself, without a surety, is no waiver of the lien | 392 |
| Taking a negotiable note of the vendee, indorsed by a third person, payable at future times by installments, extinguishes the lien | 392 |
| A lien is neither a jus ad rem nor a jus in re; and the lien of a vendor on the land sold is so mere a creature of the court of equity, that its existence cannot be safely predicated in any case, until established by the decree of the court | 392 |
| WAR. | |
| See, also, “Amnesty.” “Prize.” | |
| Operation of the treaty of 1783, upon the exercise of legislative powers for the confiscation of enemy's property | 798 |
| The statute of limitations was suspended, as between citizens of the Confederate States and citizens of those states which adhered to the national government, during the whole period of the war | 601 |
| As far as South Carolina is concerned, the Civil War began April 19, 1861, and ended April 1, 1866 | 601 |
| WAREHOUSEMEN. | |
| The title to goods in a warehouse does not pass by the indorsement and delivery of warehouse receipts, as against an attachment laid before notice of the assignment | *323 |
| WHARVES. | |
| Wharfage is the use of a wharf by a vessel for the loading or unloading of goods or passengers. Mere anchorage at a wharf is not wharfage | 161 |
| The use of a wharf is not “material” for a ship, within the meaning of the twelfth rule, nor is a wharfinger a material man | 161 |
| The maritime law does not give a lien for wharfage | 161 |
| WILDS. | |
| See, also, “Descent and Distribution”; “Executors and Administrators.” | |
| Any instrument may constitute a will which appears toobe intended to operate after the death of the one making it, and not before | 992 |
| The law of the place of the testator's domicile governs in relation to a will of personal property, although the will be made in another state or country, where a different law prevails | 992 |
| A good title acquired after the date of a devise of land by a testator who had possession with claim of ownership, which might have ripened into a good title, is not merged therein so as to pass the land as land acquired prior to the date of the devise | 437 |
| WITNESS. | |
| In an action against husband and wife, where the wife was not a necessary party, held, that the husband was competent as a witness in her favor, but not against her. | 1120 |
| The wife of the lessor in ejectment is not a competent witness to prove that he is living, on a motion to dismiss the action on the ground that he is dead | 384 |
| An indorser is a competent witness for the maker of a note, to prove that the indorsement was without consideration, and to give credit to the note, but the payee is not a competent witness for plaintiff | 405 1233 |
| The usual questions asked, in order to discredit a witness, are: What is the witness general reputation for truth? Is it good or bad? | 70 |
| It is not necesasry that the subpoena for witnesses should be served by the marshal | 816 |
| The party who serves the subpoena is entitled to recover for service and mileage. | 816 |
| Attachment and penalty on failure to obey summons of justice of peace | 831 |
| WRITS AND NOTICE OP SUITS. | |
| A proceeding in rem will bind the res, in the absence of any personal notice to the party interested; otherwise as to personal actions | 477 |
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