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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
12FED.CAS.
12FED.CAS.—77
12FED.CAS.—78
| Page | |
| ABATEMENT. | |
| Where there is not concurrent jurisdiction, the pendency of an action at law cannot defeat a suit in equity. | 912 |
| Accord and Satisfaction. | |
| See “Payment” | |
| ACCOUNT. | |
| A person who has changed the marks on goods of others, and mingled them with his own so as to prevent identification, must Jose the entire amount. |
1157, 1160 |
| ACTION. | |
| A schooner at anchor slipped her cable to avoid collision with a steamer drifting in an ice field with a disabled engine, and both anchor and cable were lost. Held, that the vessels were each liable for a moiety. | 549 |
| Where the connection in a joint adventure terminates with the sale of the property, and one party appropriates the proceeds, an action on the case will lie by the other for his portion; but where the connection is not thus terminated, account render is the proper form of action. | 593 |
| Instead of consolidating actions for trespass to the person and for trespass to property, arising out of the same transaction, the court directed that they be tried at the same time and to the same jury. | 422 |
| ADMIRALTY. | |
| See, also, “Affreightment”; “Average”: “Bills of Lading”; “Bottomry and Respondentia;” “Charter Parties”: “Collision”; “Death by Wrongful Act”; “Demurrage”; “Marine Insurance”; “Maritime Liens”; “Pilots;” “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping”; “Towage.” | |
| Jurisdiction—Waters and places. | |
| The admiralty jurisdiction extends to a salvage suit for services rendered from the land in completion of services rendered by other salvors at sea. | 996 |
| The admiralty jurisdiction extends to a salvage suit by a city fire department for services rendered from the land to a burning vessel brought to the city's wharves. | 996 |
| —Persons and property. | |
| Admiralty will take jurisdiction of a suit by foreign seamen against a foreign vessel to recover wages, where the voyage is completed or broken up or the seamen are wrongfully discharged. | 24 |
| —Rights and controversies. | |
| A contract for the transportation of goods on the high seas is of maritime jurisdiction. | 984 |
| A bond executed as an hypothecation of a vessel, but not upon the principles which govern such security, cannot be enforced in admiralty. | 1017 |
| Where a debt of a seaman to the master or owner did not arise out of or was not connected with, his employment, it cannot be allowed against his claim for wages. | 805 |
| Allowances may be made to the master or owner by rebatement of wages in compensation of losses or injuries caused by negligence or fault of the seaman, in the performance of his duties. | 805 |
| Admiralty will not enforce the equitable title of one to whom a yacht was sold in the presence of lie builder by one for whom she was built against the legal title which never passed from the builder by deed or absolute delivery. | 150 |
| —Torts. | |
| The jurisdiction over marine torts depends upon the locality of the wrong, and not upon its extent or character, or the relations of the person injured. | 138 |
| Procedure. | |
| The acts of congress adopting state statutes abolishing imprisonment for debt do not apply to process of arrest in admiralty. | 270 |
| ADVERSE POSSESSION. | |
| See, also, “Ejectment” | |
| The possession of a purchaser at a tax sale is not to be considered under claim and color of title until the tax deed is actually executed. | 330 |
| AFFREIGHTMENT. | |
| See, also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Demurrage”; “Shipping.” | |
| The master of a whaler wrecked on a desert island, and escaping in a small boat to Oahu, purchased a brig by means of a draft on the owners of the wrecked vessel, and rescued the crew and oil left on the island. Held, that the drawee of the draft, on its acceptance and payment, became the owner of the brig, and was entitled to compensation for such service over and above his expenses and risk. | 331 |
| The master's liability as a common carrier ceases when the cargo is unladen on a wharf, by direction of the consignee. | 736 |
| The receipt by the consignees of part of the cargo on one day is notice to attend and receive the rest as fast as it should be discharged, and where it is burned on the pier after it is unloaded and ready for delivery, the vessel is not liable. | 1167 |
| A custom of a vessel to land and store goods without notice of the consignee is not applicable where the carrier transships the goods by rail without notice to the shipper. | 659 |
| The freight is not due where the cargo is not carried to its destination. If voluntarily accepted at any other port freight prorata is due, but if received by compulsion no freight is due. | 1050 1214 |
| Where the contract of shipment is made with the master he may sue for freight in his own name. | 1051 |
| The vessel is liable where damage to cargo is due to the defective and obsolete construction and arrangement of her bulwarks and stanchions. | 655 |
| The owner of the cargo may recover for a loss caused by the capsizing of the vessel due solely to improper loading. | 267 |
| The vessel owner is not liable for the loss by sea perils of goods laden on deck with the shipper's consent, in the absence of culpable neglect or misconduct. | 132 |
| A shipper of money is entitled to reimbursement where it is surrendered by the master of the vessel to prevent her capture and burning by a privateer. | 954 |
| Agency. | |
| See “Principal and Agent.” | |
| Aliens. | |
| See “Courts”; “Removal of Causes.” | |
| APPEAL AND ERROR. | |
| See, also, “Bankruptcy”; “Collision.” | |
| An appeal will not lie from a decree pro forma in admiralty. | 200 |
| Appeals in admiralty on questions of mere fact will be discouraged. | 155 |
| The affidavit of the surety on an appeal bond, as to his responsibility, where he does not personally appear, is not sufficient. There must be independent evidence of his responsibility. | 267 |
| After a judgment against defendant in the supreme court on appeal on demurrer, he will not be allowed to amend. | 284 |
| After reversal, on error to the supreme court, of an order sustaining demurrers to the plaintiff's petition, further demurrers cannot be filed. | 224 |
| APPEARANCE. | |
| See, also, “Removal of Causes.” | |
| A party may appear in person or by counsel at any time in the course of the action. | 142 |
| APPRENTICE. | |
| An entry on the minutes of the orphans' court “that A. B. be bound apprentice to C. D.” does not constitute a lawful binding. | 204 |
| ARBITRATION” AND AWARD. | |
| See, also, “Reference.” | |
| The administrator of a deceased partner may submit to arbitration the question as to the value of his interest in the partnership. | 766 |
| A mistake by the referees in a point of law need not appear on the face of the award, to induce the court to set it aside. | 1028 |
| On such examination into the award, new evidence cannot be admitted. | 1028 |
| Army and Navy. | |
| See, also, “Prize”; “War.” | |
| ARREST. | |
| See, also, “Admiralty”; “Bail.” | |
| A party to a cause depending for trial is privileged from arrest during the continuance of the court at which the trial will take place. | 1019 |
| Such privilege will prevent his arrest when coming to and returning from court, and while at his lodgings. | 1010 |
| ASSIGNMENT. | |
| See, also, “Mortgages.” | |
| A debt due on a single contract or obligation cannot be split up by assignment so as to give a right of action by each assignee. | 860 |
| An assignment of a debt carries with it all the accessory obligations by which the debt is secured. | 860 |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | |
| See, also, “Bankruptcy.” | |
| A stipulation for a release, and that the dividends of creditors refusing to become parties shall be paid to the assignor, does not render the assignment fraudulent and void on its face, by the law of Rhode Island. | 87 |
| ASSUMPSIT. | |
| See, also, “Contracts.” | |
| Advances made for a person after his death cannot be recovered in assumpsit against his executor. | 593 |
| Assumpsit will lie for money due upon a special contract. | 1112 |
| A promise to account for the proceeds of a bill of exchange “as soon as the fate of the bill is decided” held a promise to pay, conditional upon the bill being paid. | 1101 |
| A promise to pay a claim out of the proceeds of a bill of exchange is not enforceable where the bill is protested for nonpayment. | 1101 |
| Attachment. | |
| See, also, “Bankruptcy”; “Garnishment.” | |
| ATTAINDER. | |
| Evidence of the political character and conduct of a person is admissible to show that he was not the person intended by a proclamation under the attainder laws. | 1123 |
| A person claiming title to land cannot controvert in a collateral action the title of a purchaser under an attainder. | 1129 |
| Operation and effect of the attainder laws of Pennsylvania. | 1123, 1129 |
| ATTORNEY AND CLIENT. | |
| Where several attorneys appear for defendants, the attorney's fee in the bill of costs will be equally divided between them. | 1027 |
| AVERAGE. | |
| Where a vessel captured by a privateer was detained until security should be given that the cargo would not be carried to the port of destination, the expenses of the detention are subjects of general average. | 1047 |
| The contributory value of freight to a general average is ascertained by a deduction of one-third of the gross freight. | 876 |
| BAIL. | |
| The affidavit to hold to bail must show that the debt was due at the time of issuing the capias. | 174 1215 |
| Bail are discharged by an amendment adding a cause of action which could not be given in evidence upon the original declaration, or which is not contained in the affidavit to hold to bail. | 1121 |
| Bailment. | |
| See “Carriers”; “Pledge.” | |
| BANKRUPTCY. | |
| See, also, “Assignment for Benefit of Creditors”; “Insolvency.” | |
| Operation and effect of bankruptcy laws and of proceedings thereunder. | |
| The bankrupt law of 1841 is inoperative as to transactions occurring before the date when it went into effect. | 537 |
| A petition by a partner of a dissolved firm against his copartners will be dismissed where it appears that the firm was dissolved by judicial decree, and all its assets transferred to a receiver. | 492 |
| Cases pending under state insolvent laws when the bankrupt law came into operation are not affected thereby. | 401 |
| A. prior general assignment for the benefit of creditors, valid under the state law, will not be sustained against a valid adjudication of bankruptcy. | 269 |
| Contempt proceedings in a state court for failure to appear for examination on proceedings supplementary to execution will not be stayed by the bankruptcy court. | 149 |
| A suit commenced in a state court before bankruptcy, in which the title to the property surrendered by the bankrupt is in controversy, will not be abated by the bankrupt proceedings. | 71 |
| A party arrested on a ca. sa. from the state court, before petition filed in bankruptcy, cannot be released from custody on the order of the bankrupt court, where the creditor did not prove his debt. | 541 |
| The circuit court has power to enjoin the prosecution of an action of trover in a state court against the marshal, for seizing the property of a third person under his warrant in bankruptcy. | 814 |
| A state court cannot, by its process, take property surrendered by a bankrupt from the possession of his assignee in bankruptcy. | 71 |
| An assignment in bankruptcy will dissolve an attachment issued and levied two days before the filing of the petition in bankruptcy. | 596 |
| The dismissal of the bankrupt's appeal in the state court on its being called in its order, which would have been ineffectual, so far as the assignee is concerned, had it been successful, held not a violation of the order of court forbidding further proceedings to enforce plaintiff's claim.—. | 211 |
| Jurisdiction of courts. | |
| Where the want of jurisdiction appears on the petition, the consent of the parties cannot give jurisdiction, and the court, of its own motion, should take notice of the point. | 492 |
| Commencement of proceedings—Voluntary bankruptcy. | |
| A fraudulent transfer by the petitioner will not prevent his being declared a bankrupt under the act of 1841. | 586 |
| The jurat is not essential in a petition under Act 1841. | 586 |
| A demand for a trial by jury, where the petition under Act 1841 is dismissed, must be made at the term at which the decision was made. | 950 |
| The register, at the instance of the bankrupt, cannot inquire into the authority to act, of an attorney who appears for the creditors. | 144 |
| —Involuntary bankruptcy. | |
| A firm may be declared bankrupts, although one of its members may have already been adjudicated on a creditor's petition. | 930 |
| For the purposes of petitioning, a partnership is held to subsist so long as there are oustanding debts against the firm, or assets, undistributed, belonging to it. | 930 |
| A debt contracted prior to passage of the act of 1841 is within its operation, and will support a decree. | 853 |
| “Insolvency.” as applied to involuntary proceedings, means the bankruptcy of the debtor as known to the court as a ground for proceedings. (Act 1841.). | 853 |
| A promissory note, overdue on its face at the time the petition is presented, is sufficient to support the proceedings. (Act 1841.). | 149 |
| A debt merged in a judgment which is clearly a fraudulent preference cannot be the foundation of a petition by the judgment creditors, unless the preference is surrendered. | 900 |
| The rule for computing the requisite number and amount of petitioning creditors. | 1136 |
| A denial by the debtor that the requisite number and amount of creditors have joined in the petition, and the list of creditors filed therewith, must be verified by oath of the debtor. | 1136 |
| On such a denial a reference will he ordered, to ascertain the fact, on 10 days' notice to all creditors, on which reference the creditors have the affirmative of the issue. | 1136 |
| A petition against a married woman, grounded on nonpayment of her notes, dismissed, where it did not appear from the notes, or by allegation, that they were given for the benefit of her separate estate, or in course of trade. | 727 |
| If neither the petition nor the deposition of the act of bankruptcy are signed by, the petitioner, the defect is fatal. | 930 |
| The jurat subscribed by the commissioner need not contain a venue, when it appears from the deposition itself that the oath was administered where the officer resides. | 149 |
| The answer of the debtor need not be in writing. It is sufficient if he appear in court, and deny the truth of the facts set forth in the petition. | 86 |
| The court may allow amendments where defective averments in the petition resulted from misapprehension of counsel. | 149 |
| The decease of one partner prior to adjudication upon the question of bankruptcy is not legal cause for dismissing the petition. | 930 |
| Creditors alleged to have been fraudulently preferred may appear and contest the allegations of the petition. | 70 |
| A creditor at large may suggest suspicious circumstances, upon which the court will direct an inquiry to ascertain whether the petition is not collusively and fraudulently prosecuted. | 490 |
| Acts of bankruptcy. | |
| Insolvency is the inability to pay debts in the usual course of business. | 335 |
| “In contemplation of bankruptcy” (Act 1841) means simply in contemplation of a state of bankruptcy, or a known insolvency and inability to carry on business, and a stoppage in business. | 1079 |
| An assignment, by one apparently insolvent, of his stock of goods, in payment of a debt to a firm of which his father-in-law was a member, held a preference made in contemplation of bankruptcy. | 597 |
| A general assignment with preferences, made after the passage of the act of 1841, but before it was to go into operation, is an act of bankruptcy. | 1079 1216 |
| An imprisonment for but seven days, exclusive of the first day, is not sufficient to support an adjudication. | 930 |
| A mortgage to secure prior advances is not in the usual course of business, and is prima facie fraudulent and evidence of an intended fraud. | 335 |
| The suspension of payment of commercial paper must be fraudulent, and must continue for 14 days, to be an act of bankruptcy. | 381 |
| Such suspension or nonresumption of payment is fraudulent where, liability not being bona fide disputed, it is done purposely, and not by accident or mistake. | 381 |
| But it is not an act of bankruptcy where there was a bona fide denial of liability. (Act July 14, 1870.). | 12 |
| “Commercial paper” means paper, which, by the law governing the contract, has the ordinary qualities and incidents of negotiable paper, in the sense of the law merchant. | 381 |
| A life insurance company is a business corporation, within section 37, Act 1867. | 12 |
| Schedule. | |
| The statement of the sum due the creditors, with the date of the debt or judgment, held sufficient. | 144 |
| Debts of the bankrupt, purchased by his father at a discount, are properly listed in the schedule at their full amount. | 587 |
| An inventory of the personal estate, failing to set forth the separate items, is defective, but may be amended. | 144 |
| The register's certificate as to the correctness of the inventory of debts is not conclusive. | 144 |
| Adjudication. | |
| An adjudication made after the return day, but upon petition and appearance, will be sustained in a collateral inquiry. | 269 |
| After the amendment of June 22, 1874, an order of adjudication in involuntary proceedings cannot be entered nunc pro tune on a direction made before the passage of the act. | 148 |
| Meeting of creditors: Notice. | |
| A variance in the middle letter of the bankrupt's name, in the notice, is not material. | 144 |
| The marshal's return as to the service of notice is not conclusive. | 144 |
| Sixty days from the date of the warrant for the first meeting of creditors held a reasonable time, where all the creditors resided in Germany. | 91 |
| No creditor has a right to be heard in opposition to any of the proceedings until he has proved his debt. | 144 |
| No objection to any proceedings can be considered an opposition to the discharge until application is made for a discharge. | 144 |
| Assignee—Appointment and removal. | |
| A notary public cannot take the acknowledgment of a creditor to a power of attorney to vote for the assignee. | 127 |
| The register cannot take proof of a claim for the purpose of determining the right of the alleged creditor to vote for the assignee. | 54 |
| A mortgage creditor, who, after the adjudication, sells the mortgaged premises, and himself becomes the purchaser, cannot vote on the deficiency as an unsecured creditor. | 902 |
| —Rights, duties, and liabilities. | |
| One who pays a debt to the bankrupt, in the usual course of business, after the petition is filed, but before the adjudication, and without actual notice or knowledge of the pendency of the proceedings, is liable to the assignee therefor. | 639 |
| An assignee appointed upon the adjudication of a member of a firm upon his individual petition, whether the firm be existing or dissolved, acquires no title to its property. | 800 |
| A foreign assignee may sue to collect the assets of the bankrupt in a federal court in New York to the same extent as the bankrupt could have sued if no bankruptcy had taken place. | 924 |
| Property of bankrupt—What constitutes. | |
| A cestui que trust may have a trust declared in trust moneys deposited by the bankrupt (who was a trustee) in a bank with his own, in his own name. | 260 |
| Money deposited with a banker to pay a note and mortgage of the depositor when they should be sent to him is not held by the banker in a fiduciary capacity. | 540 |
| Money given by a reinsuring company to the original insurer, for delivery to the insured, who had suffered a loss, and retained by the assignee in bankruptcy of the original insurer, may be reached by a bill in equity charging the assignee as the trustee of an express trust. | 543 |
| —Custody and control. | |
| The court cannot, under a provisional warrant, order the seizure of any property except such as belongs to and was in possession of the debtor on the filing of the petition. | 338 |
| The marshal to whom a warrant is delivered in involuntary proceedings is the proper person to have custody of the bankrupt's property, and the register must deliver up the writ to him on demand. | 712 |
| Rights of joint occupants of leased premises on the bankruptcy of one of them, who was in debt to the others for his share of the rent. | 548 |
| Where the bankrupt elects to occupy his farm and cultivate the crops until harvested, he must secure to the assignee a reasonable rental. | 1052 |
| The assignee in bankruptcy of a mortgagor, under the Indiana law, is entitled to rents of the property, for the benefit of the unsecured creditors, until the mortgagee takes steps to have them applied to his debt, for insufficiency of the security. | 955 |
| The bankrupt court has power to order a bankrupt to pay over to the assignee sums which apparently are in his hands. | 621 |
| The district court, in an involuntary case may issue an injunction to prevent the disposal of property by a person to whom the debtor has transferred it. | 338 |
| —Exemptions. | |
| Exemptions created by a state statute are void as to creditors whose debts were contracted previous to the passage of such statutes. | 68 |
| The exemption by Const. Ark. 1868, art. 12, § 1, of personal property of the value of $2.000, is self-executing, and its provisions are exclusive, and not cumulative. | 92 |
| Growing crops are exempted under Rev. St. Me. 1871, c. 81, § 59. | 1052 |
| The individual partners are not entitled to exemptions out of the firm assets. | 832 |
| The title to exempt property, on the death of the bankrupt, passes to his legal representative. | 68 |
| —Wife's claim. | |
| The widow of a bankrupt dying after the issuing of the warrant held entitled to dower in land owned by him at the time the petition was filed, where the state statute theretofore passed restored the common-law right of dower on repealing the statutory provision. | 68 |
| —Liens. | |
| The landlord's lien for rent, under a state statute, on goods seized by the marshal, is valid. | 251 1217 |
| A lien on land held not affected by the taking of a mortgage on personal property to secure the same claim. | 1094 |
| Where a seat in a stock exchange can be transferred only on approval of the board, and is subject to payment of the claims of other members on the insolvency of the holder, his assignee in bankruptcy has a right only to the surplus after the payment of such claim. | 1114 |
| A levy upon the stock of goods in the bankrupt's store, where the sheriff put a custodian in charge, but did not close the store, held valid. | 833 |
| The lien of process issued upon a judgment obtained in attachment proceedings relates back to the service of the process, as between judgment creditors, and Rev. St. § 5044, has no application thereto. | 806 |
| “Where the goods of a debtor are in the possession of the sheriff under an attachment, an execution in favor of another is a lien thereon from its delivery to the sheriff as against the assignee in a subsequent bankruptcy, though the attachment be vacated by the bankruptcy proceedings. | 858 |
| The sheriff who has attached goods of the bankrupt has a lien for fees accruing up to the time of the filing of the petition in bankruptcy. | 596 |
| After proceedings in bankruptcy commenced, a mortgagee cannot take possession of property under his mortgage, or foreclose the same in the state court, where the assignee objects. | 1076 |
| A sale made after, but under, an execution levied before the petition was filed, may be set aside or confirmed, in the discretion of the bankruptcy court. | 819 |
| —Sale. | |
| The court, against the protest of a receiver appointed by a state court, will not summarily order a sale of property forcibly taken by the marshal from his possession. | 869 |
| It is imperative, under the statute, that notices of all public sales shall be published for three consecutive weeks. | 951 |
| The register may designate the newspaper for advertising notices of sale. Sufficiency of designation. | 188 |
| A mistake in judgment by the assignee as to the proper place and notices of a sale will not invalidate the sale, in the absence of fraud or collusion. | 188 |
| An assignee need not adjourn a sale to give a bidder time to search the title. | 188 |
| Creditors who have full notice cannot complain, where they failed to exercise proper diligence to protect their interest. | 188 |
| A creditor who, with full knowledge of the circumstances of a sale, accepts a dividend from the proceeds, and silently allows the purchaser to sell the property, cannot avoid the sale for fraud and collusion. | 188 |
| A sale by the marshal, as messenger, under a special order, prior to the appointment of an assignee, is to be considered as in the nature of a sale made by a provisional assignee. | 247 |
| Where the marshal sells, as movables, articles which really passed on a prior sale to another, as fixtures, the purchaser may file a claim therefor against the assignee. | 247 |
| Proof of debts—What is provable. | |
| A debt against which the statute of limitations has run, but which is included in the debtor's schedules, is provable. | 59 |
| Rent, and damages for nonperformance of covenants in a lease, accruing after petition filed, are not provable. | 819 |
| The loss of rent after the bankruptcy of the lessee, on a reletting by the landlord, who terminated the tenancy under the terms of the lease, for a breach of covenant, cannot be proved. | 584 |
| A judgment for deficiency on a sale under foreclosure in the state court, permitted by the bankrupt court, cannot be proved. | 43 |
| A person to whom notes are sent for discount, who fails to pay drafts drawn against the proceeds in favor of an indorser of the notes, cannot prove his claim on the notes against the bankrupt payee of the drafts. | 628 |
| Notes signed by the bankrupt for the accommodation of the maker, and transferred to the holder after maturity, held not provable. | 463 |
| In the case of negotiable paper, nothing short of actual payment, or a present right to receive a dividend, from the maker's estate, will operate to reduce the creditor's right to prove against the indorser's estate. | 113 |
| The holders of a note, who have received a dividend from the estate in bankruptcy of the maker, can prove only the balance against the estate in bankruptcy of the indorser. | 625 |
| A joint and several note, signed individually by three partners, and by others as sureties, cannot be proved against the joint assets of the firm. | 317 |
| A joint and several note, given for money borrowed by a firm, and signed in the firm name, with other names following, may be proved against the joint assets of the firm. | 317 |
| The bankrupt partner's proportion of the debts of the firm cannot be proved by his copartner unless it appear that the latter had paid such debts. | 69 |
| The father of the bankrupt, being assignee of his estate, under a voluntary assignment, cannot purchase debts owing by the bankrupt, at a discount, with the trust funds, and hold them, as against other creditors, for their face value. | 586, 587 |
| The assignee under a general assignment for creditors without preferences is not prohibited from proving his debt in bankruptcy. | 536 |
| —Secured debts. | |
| Where a preference is received on account of several debts, the creditor must surrender the entire preference, to prove any of his debts; otherwise where the preference is separate as to separate debts. | 337 |
| Security given by the bankrupt to a surety must be surrendered or applied before he proves, his debt against the assets of the principal. | 317 |
| The mortgagee must release or surrender the mortgaged property, or agree with the assignee as to its value, before he will be allowed to prove his debt, or any part of it. | 133 |
| A joint debtor, having security on the separate estate of one of the creditors, may prove his entire claim against both estates, but is not entitled to greater dividends than, in the aggregate, amount to his debt. | 625 |
| A creditor of a firm holding security from one partner may prove against the joint estate without surrendering, selling, or valuing his security. | 317 |
| A mortgage securing a note is not extinguished, by proving the note as unsecured, but the assignee is subrogated to the rights of the holder. | 213 |
| —Set-off. | |
| A deposit in a bank becomes, upon the bankruptcy of the depositor, a security for, and payment pro tanto of, his liabilities to the bank, by the operation of the law of mutual credits. | 564, 653 |
| A liability as indorser, where the principals are solvent, cannot be set off. | 653 |
| A court of equity may disallow a set-off of a claim against the bankrupt, when it would work injustice. | 231, 237 |
| A court of equity will not aid a debtor to a bankrupt's estate to set off against his debt, debts of the bankrupt, bought upon a speculation of probable dividends. | 916 1218 |
| A debt of the bankrupt, purchased immediately prior to the filing of the petition in bankruptcy, to offset the purchaser's indebtedness to the bankrupt, is protected. | 604 |
| The assignee of a claim against an insolvent insurance company for loss under its policies, assigned after notice of insolvency, cannot set it off against his previous indebtedness to the company. | 231, 237 |
| Otherwise where the claim was purchased before the filing of the petition in good faith and for value, and without notice of insolvency. | 231, 237 |
| One who purchases a negotiable note after a commission of bankruptcy has issued may prove the same, subject to all legal set-offs existing at the time of the bankruptcy. | 875 |
| —Procedure. | |
| A proof of a claim, which has been postponed by the register until after the election of an assignee, is then to be treated as if it had not been tendered before the election of the assignee. | 53 |
| Where proof of a debt was made under a mistake of law or fact, the creditor will be permitted to withdraw it, but only where all parties will be restored to their original position. | 775 |
| Where a creditor, without any fraudulent intent, has, in ignorance of his rights, proved a secured claim as unsecured, he will be allowed to amend by setting up his security. | 487 |
| Payment of debts: Priority: Dividends. | |
| Attorney's claim for services in preparing the petition and schedules, and for disbursements, held not entitled to priority. | 212 |
| If the declaration of a dividend on a particular claim was unauthorized, the assignee may withhold its payment. | 42 |
| A judgment against partners and others jointly is a several claim, as against the bankrupts, and cannot receive a dividend from the joint estate. | 42 |
| Examination of bankrupt, etc. | |
| The debtor, at the instance of contesting creditors, may be subjected to an examination in relation to his indebtedness to the petitioning creditor. | 70 |
| The bankrupt cannot be attached for contempt for the disobedience of an order for examination served on him without the jurisdiction of the court. | 281 |
| The bankrupt will be compelled by the court to answer all proper questions propounded. | 428 |
| A receiver appointed by a state court, against whom a suit by the assignee is pending for the possession of the bankrupt's books, is not privileged to refuse to produce the books and testify before the register. | 869 |
| Costs: Pees: Disbursements. | |
| Costs may be awarded the prevailing party in a proceeding to annul a discharge, brought under Rev. St. § 5120. | 335 |
| Unless an attachment dissolved by bankruptcy could not have been effectual to preserve the property for the general creditors, the costs may be paid out of the fund. | 392 |
| An assignee's account for counsel's services will be submitted to a meeting of the creditors, to act thereon. | 791 |
| A counsel fee will not be allowed out of the general fund where the services were rendered for the benefit of a special fund of a class of creditors. | 488 |
| The fees of the register incident to a second general meeting called by a trustee appointed under section 43, Act 1867, are not chargeable against the estate. | 207 |
| The register's fee for taking and certifying a deposition in proof of debt is $1, and is a charge on the fund. | 588 |
| A fee for a letter or power of attorney by a creditor is not a charge on the fund. | 588 |
| An assignee who examines the bankrupt under section 26 must pay the register's fee, whether he has assets of the bankrupt or not. | 829 |
| If the examination is for the benefit of the creditors, under section 28, the expenses must be advanced or secured by the creditors. | 829 |
| If the examination is one of the steps preliminary to the bankrupt's discharge, he must advance or secure the expenses. | 829 |
| The expenses of an examination of the bankrupt do not include any compensation to the assignee. | 829 |
| The assignee should pay from the assets the rent of a store occupied by him, from the filing of the petition to the date of surrendering possession. | 819 |
| A landlord's claim for use and occupation of premises used by the marshal for keeping and storing the goods, and costs on reference to adjust the amount, are to be paid as expenses of administration. | 251 |
| Discharge—Proceedings to obtain. | |
| The bankrupt need not apply for his discharge within one year from the adjudication, where debts are proved, and assets come to the hands of the assignee. (Rev. St. § 5108.). | 402 |
| The proceedings are under the control of the register, and should proceed without unreasonable delay. | 1134 |
| —Proceedings in opposition. | |
| Claims against a bankrupt cannot, as a matter of course, be proven to bar his discharge on a date subsequent to the day fixed for the creditors to show cause against the discharge. | 69 |
| It is discretionary with the court to permit opposition to the discharge after the return day of the order to show cause, where the proceedings have been adjourned for other purposes. | 589 |
| A general charge of fraud against the act is too vague. | 146 |
| Specifications stating that the bankrupt has placed his property in the hands of his wife, and withheld his books, papers, and documents, held too general, unless intended to apply to all his property, books, papers, and documents. | 146 |
| After specifications of objection are filed, further proof may be taken, if desired, by a reference to the register. | 146 |
| Where the bankrupt has taken the oath required by section 29, act 1867, the creditor has the burden of showing that he has forfeited his right to a discharge. | 146 |
| Where a creditor opposes the discharge, the register must make a certificate of his proceedings, and return the papers into court. | 829 |
| The fact that the assignee has reason to expect that he may receive money for the estate is no ground of denying a return, under Form 35, when requested by the bankrupt. | 829 |
| A petitioner under the act of 1800 was discharged on taking the prescribed oath, after the making of an order that the clerk should execute an assignment in trust for the creditors generally of his interest in a certain legacy. | 873 |
| —Acts barring. | |
| A fraudulent sale of property before the passage of the bankrupt act will preclude a discharge. | 1073 |
| The giving of preferences before the passage of the bankrupt act, which would be fraudulent thereunder, will not bar the discharge. | 346 |
| Where the husband's equitable interest in his wife's property has been sold on execution, it is not a false swearing for him to state that he has no interest or estate in such property. | 871 1219 |
| The concealment denounced by section 29, Act 1867, embraces a concealment of title to property, as well as the hiding from view of the property itself. | 1073 |
| Bankrupt doing business in his wife's name held guilty of fraud in placing property in her name, where it appeared that she was without means when he married her, a few years before, and had inherited no property. | 147 |
| —Scope and effect. | |
| A discharge granted on consent in writing by the majority in number and value of creditors whose debts were contracted after January 1, 1869, operates as to debts contracted both before and after that date. | 57 |
| The discharge of a partner upon his individual petition, and without any proceedings by or against the firm, does not discharge him from partnership debts. | 800 |
| —Vacating: Setting aside. | |
| Discharge set aside within two years on petition of creditors alleging fraud in the bankrupt's omission of their names from his schedule, where they had no knowledge thereof until after the discharge was granted. | 41 |
| Prohibited or fraudulent transfers. | |
| A note and mortgage given to creditors to induce them to come into a composition on apparent equality with other creditors is a fraudulent preference. | 707 |
| Warrants of attorney given to a creditor with knowledge that the debtor is insolvent are fraudulent, though given more than two months before petition filed. (Act 1874.). | 40 |
| The validity of a transfer procured by a warrant to confess judgment is to be determined at the time when the judgment is entered and execution issued. | 456 |
| A bank holding the note of the bankrupt received from him, in payment, with knowledge of his insolvency, a check on the bank, covering the amount of his deposit and a payment in cash. Held, that only the payment in cash was a fraudulent preference. | 564 |
| Where a debtor utterly insolvent, and without reasonable prospects of being able to pay his debts, passively permits certain creditors to appropriate all his assets to their debts, an action will lie against the creditors to recover the amounts received. | 1106 |
| A sale made by a person contemplating bankruptcy is not ipso facto void. | 898 |
| A mortgage of an entire stock in trade and book accounts to secure an antecedent debt is prima facie fraudulent, and the burden to show that it was made in good faith is on the mortgagee. | 1014 |
| A mortgage given by an insolvent within four months of bankruptcy proceedings, to secure a pre-existing debt, to one who had reasonable cause to believe the debtor insolvent, is void. | 1014 |
| Suits and proceedings in relation to the estate. | |
| The bankruptcy court will not entertain a petition by the bankrupt to have real estate set apart as a homestead, and for an injunction to restrain a creditor from selling the same on execution issued before the bankruptcy; the remedy, if any, being in the state court. | 902 |
| Property held by the bankrupt to secure him as surety for another cannot be reached by the creditor by summary petition against the assignee, but only by a plenary suit. | 1044 |
| Where the vendee purchased in good faith, without knowledge of the bad faith of the vendor, and is financially responsible, the court will not settle the question of the validity of the sale upon motion. | 898 |
| A bill in equity will lie by the assignee to recover shares of stock purchased by a third person with funds of the bankrupt, fraudulently put into his hands. | 1106 |
| The assignee is not entitled to any greater rights in respect to recovering back money, or other property under section 39 than under § 35, Act 1867. | 776 |
| The assignee cannot recover back money paid with a view to give a preference, unless he show that the preference was given within four months before the filing of the petition in bankruptcy. | 776 |
| The fact that a conveyance by the bankrupt was made more than six months before the commencement of the proceedings in bankruptcy will not prevent its being set aside where it was fraudulently made and intended to cheat and hinder creditors. | 1113 |
| The bankruptcy court has jurisdiction to determine the question of lien, on petition by a chattel mortgagee, though he has not proved his debt in bankruptcy. | 133 |
| Testimony of neighbors as to a person's reputation for solvency is entitled to but little weight to negative the knowledge of a mortgagee who was informed that the mortgagor could not pay his debt, which had long been overdue. | 1014 |
| Review. | |
| An order made by the district court in the exercise of its summary jurisdiction may be reviewed in the circuit court by petition, or on bill filed in a plenary suit, the former method being favored. | 1044 |
| Arrangement with, creditors: Composition. | |
| The petition for a composition must set forth its nature and terms, and the belief of its acceptance by two-thirds in number and one-half in value of the creditors. | 393 |
| A general order requiring meetings to be held before a register held prospective in its operation, and not to affect a pending meeting presided over by the deputy clerk. | 393 |
| The presiding officer at the meetings has power to regulate the form and order of proceedings, and to decide questions that arise, subject to review by the court. | 393 |
| The proceedings must be recorded, and the examination of the debtor should be conducted like that of a witness in court. | 393 |
| A vote should not be taken so long ascreditors are prosecuting inquiries to aid in determining whether the composition proposed shall be accepted. | 393 |
| On such inquiries the debtor's books must be produced, if desired, and a reasonable time allowed for their examination. | 393 |
| Pending the composition the court may enjoin a creditor from suing on an unsecured debt; otherwise after the time for paying the composition has passed. | 207 |
| The debtor held not estopped, by the amount at which a debt was fixed for voting purposes, from questioning the amount on which the percentage of the composition should be calculated on its payment. | 396 |
| In composition cases, in which no assignee has been appointed, the debtor stands in the position of the assignee, in respect to set-off. | 653 |
| A provision of the resolution of composition that upon delivery of the composition notes the assignee shall deliver all the property in his hands to the bankrupt, and be wholly discharged, is nugatory, and is not validated by a confirmation by the court. | 1135 |
| A resolution of composition is not effectual to discharge the debtor until the dividend is in fact paid to the creditor. | 1020 |
| Payment in an indorsed promissory note is a payment of money, under the statute. | 1020 |
| The surplus funds in the hands of the assignee after settlement of the estate are to be paid to the bankrupt on petition on oath showing that further debts will not be proved. | 760 1220 |
| The court can enforce in a summary manner only the executory provisions of the composition, under Act June 22, 1874, § 17. | 207 |
| The court cannot summarily compel a creditor to take the money and notes provided for by the composition. | 207 |
| A creditor who receives a composition with full knowledge of all facts cannot afterwards require a set-off to be enforced by a court of equity, which he had opportunity to assert at the time the composition was made. | 916 |
| Composition not set aside after two years, as procured by preferences to certain creditors, where the debtor had entered into new business relations, and the creditors had failed to move promptly after knowledge of the wrong. | 18 |
| Repealing acts. | |
| The repealing act of March 3, 1843, must be considered as being in force from the first moment of that day. | 715 |
| BANKS AND BANKING. | |
| See, also, “Bills, Notes, and Checks”; “Corporations.” | |
| The implied contract between the owner of a note and the bank with whom it is deposited for collection does not follow the note into the hands of a second bank, and the owner has no remedy against it. | 1110 |
| A national bank held bound, under the local law, to recognize a transfer of its stock by a foreign executor duly appointed in another state, when not in conflict with its by-laws or articles of association. | 265 |
| BILLS, NOTES, AND CHECKS. | |
| Validity. | |
| Collusion between the captors of a Spanish vessel and an American citizen, by which she was wrecked within the territory of the United States, and the cargo landed and duties regularly paid, is no bar to a recovery on bills of exchange given by the American citizen on purchase of the cargo. | 522 |
| Negotiability. | |
| A note which, during four of the five years it has to run, may, at the maker's option, be paid in buggies at wholesale prices, is not negotiable. | 707 |
| A note which, in addition to interest, provides for the payment of taxes whose amount is uncertain, is not negotiable. | 707 |
| A stipulation to pay attorney's fees if a suit be instituted on the note does not affect its negotiability. | 710 |
| Indorsement and transfer. | |
| A deed conveying a number of negotiable instruments of various kinds will not be considered as a negotiation of the paper on mercantile principles. | 504 |
| A contract of guaranty indorsed on the note can only be enforced between the parties to it. | 622 |
| The acceptor of a bill which came into his hands after it was put in circulation is presumed to be the owner, and he may recover thereon against the maker. | 956 |
| The holder of a negotiable note taken as security for a pre-existing debt is a holder for value, unaffected by equities subsisting between the original parties. | 798 |
| Where a note, after indorsements to others, is indorsed to the first indorser, who reindorses it, the intermediate indorsers are not liable thereon. | 710 |
| Demand: Notice: Protest. | |
| The day of the date is excluded, in computing the time when a note without grace is due. | 174 |
| The usage of the banks in the District of Columbia to make a demand on the fourth day of grace only applies to notes negotiated by the bank. | 174 |
| Notes left for collection in the bank are due on the third day of grace, under the general commercial usage. | 174 |
| A state of war between the countries in which the drawer and drawer respectively reside will excuse notice of nonpayment and protest to the drawer until within a reasonable time after the impediment is removed. | 504 |
| Notice of nonpayment and protest is unnecessary where the drawer, having a trifling balance due to the drawer in his hands, gave notice that bills would not be honored. | 504 |
| Notice of dishonor need not be given to parties who are not liable on account of the dishonor, and can look to no person on the bill for indemnification, or for payment of it. | 1101 |
| A notice to an indorser, who is a member of congress, then in session, left in the post office of the senate or house of representatives, is not sufficient. | 174 |
| A personal notice, to charge the indorser, may be served anywhere. | 1142 |
| Where the indorser lives in the city the notice must be served on him personally, or at his place of business or residence. | 1142 |
| But if deposited in the post office, and in fact received by him in time, it is sufficient. | 1142 |
| Actions. | |
| A judgment and execution against the drawer of a bill of exchange is no bar to a judgment against the indorser. | 286 |
| It is no defense to a suit against the maker of a note, by one to whom it was assigned after it was dishonored, that it was given to pay for land which had not been conveyed, where defendant has not demanded a conveyance. | 439 |
| Property received collaterally, and not in payment of a note, cannot be set up, in an action on the note, by way of set-off. | 445 |
| A plea, in an action on a note, that the payee received another note and mortgage to be applied to the note, to be good, must aver the receipt of proceeds, etc. | 445 |
| In an action against the indorser of a foreign bill of exchange, for nonpayment, it is not necessary to produce a protest for non-acceptance. | 286 |
| An acknowledgment of indorsement of a draft drawn by defendant, which was not produced, held prima facie evidence of indorsement in a suit against the drawer. | 1121 |
| An averment of an indorsement to “Hyer and Burdett, survivors of Bremner,” held not supported by an indorsement to “Messrs. Hyers, Bremner, and Burdett.”. | 1121 |
| BILLS OF LADING. | |
| See, also, “Admiralty”; “Affreightment”; “Carriers”; “Demurrage”; “Shipping.” | |
| The title of a person who makes a bona fide advance on a bill of lading of cotton subsequently delivered alongside the vessel is not affected by the removal of the cotton by the owner from the custody of the vessel, and shipping it in another vessel under a new bill of lading. | 1157, 1160 |
| The master of the vessel is not liable for a greater quantity of cargo than that actually laden on board, though less than that stated in the bill of lading, where the weighing was done by the shipper. | 497 |
| The time allowed for delivery will be determined by the usages of the port, where the bill of lading is silent in regard thereto. Evidence of an oral contract as to the time is inadmissible. | 131 1221 |
| Where the bill of lading is silent as to the place of delivery, the vessel is obliged to discharge the cargo at the shipper's wharf according to the usages of the port. | 131 |
| The usage of the port in such case is binding as a maritime contract on both parties. | 131 |
| Brokers by whom a shipment is made may bind the owner to the usual stipulation limiting the carrier's liability. | 1051 |
| The carrier is liable for loss of oil by leakage caused by the casks not being properly wet, where the bill of lading stipulates for such wetting, notwithstanding a clause, “Not accountable for leakage.”. | 895 |
| During heavy weather a noise was heard below, and, on the hatches being opened, several casks of wine, which had been well stowed, were found broken. Held, that the vessel was not liable under the exception of sea perils, or insufficient package. | 1051 |
| A strongly-built ship, loaded with wheat, whose bins were properly constructed, and pumps properly arranged, when a few days out from Baltimore, met heavy weather, began leaking, and shipped water, and, her pumps becoming choked with wheat, was obliged to put in to St. Thomas. Held a peril of the sea. | 475 |
| The burden is on the shipowner to snow that the loss of the cargo was caused by perils of the sea, within the exception of the bill of lading. | 475 |
| Where casks of hardware, shipped in a tight, staunch, and well-manned steamer, arrived in a damaged condition, held that the burden of showing that the damage was within the exception of dangers of navigation was sustained by proof that the vessel encountered a storm, shipped water, and leaked. | 904 |
| BONDS. | |
| See, also, “Counties”; “Municipal Corporations”; “Principal and Surety”; “Railroad Companies.” | |
| A railroad mortgage coupon bond, payable to bearer, containing a condition “to make the scrip preferred stock attached to this bond full-paid stock” upon surrender of the bond, held valid in the hands of a bona fide purchaser for value, where it was stolen from the owner, and sold with the certificate detached. | 554 |
| In a several action against one of the obligors in a joint and several bond given for duties, it is no objection that a co-obligor has been taken in execution on a judgment on the same bond, and discharged under Act June 6, 1798, c. 66. | 948 |
| Interest is recoverable on interest coupons payable to bearer after their maturity. | 352 |
| BOTTOMRY AND RESPONDENTIA. | |
| The master cannot hypothecate the vessel for a pre-existing debt, but only for advances to enable him to complete the voyage. | 1017 |
| Where money is advanced for repairing a vessel on the credit of the owners, a bond given therefor by the master is invalid. | 951 |
| A consignee having cargo and freight or funds in his hands cannot take a bottomry bond from the master for advances made by him. | 1017 |
| A bottomry bond may be held good in part and bad in part, or the maritime interest may be moderated. | 951 |
| A bill of exchange on the owners for the same sum for which a bottomry bond is given by the master does not invalidate the bond, but is collateral thereto, and subject to the same contingencies. | 951 |
| An acquittance written on a bottomry bond by a son-in-law of the vessel owner, to whom it was sent for collection, who substituted himself as debtor, held fraudulent, and not available to one who purchased with notice of the lender's claim. | 63 |
| Such bond is not waived by bringing suit and recovering judgment against the person to whom it was sent for collection, in ignorance of the facts constituting the fraud. | 63 |
| A bottomry bond given by the master, though invalid as such, may create a lien on the vessel where the master had power of attorney from the owner to borrow money upon the vessel. | 1015 |
| Insurers, having satisfied a bottomry claim where the vessel is lost, are entitled to the salved freight, as against a subsequent assignee of the master and owner, who advanced money on the freight for the benefit of the ship and cargo. | 313 |
| BOUNDARIES. | |
| See, also, “Public Lands.” | |
| The line of a creek held the proper boundary, though not corresponding to the straight lines, of courses and distances run along the general course of the creek. | 193 |
| CARRIERS. | |
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Charter Parties”; “Demurrage”; “Shipping.” | |
| The owners of a steamboat employed in carrying passengers and merchandise on a regular route are responsible as common carriers. | 984 |
| Manuscript books, the property of a student, and necessary to the prosecution of his studies, are to be regarded as baggage. | 495 |
| A baggage-transfer company, by conditions printed upon receipts given for baggage checks, may limit its liability for certain goods, and in certain amounts, unless specially agreed otherwise. | 495 |
| A person who delivers his baggage check to a transfer company for delivery to his house, and receives a receipt therefor, is chargeable with notice of a printed condition therein limiting the liability of the transfer company in case of loss. | 495 |
| Construction of the words “any article, in a clause limiting liability in a receipt given by a transfer company for a baggage check. | 495 |
| Under a bill of lading silent as to the method of delivery, the carrier must at least give notice of the time and place of unlading, or the place of deposit. | 659 |
| A usage or custom, to excuse such notice, must be so clear and notorious as to afford a presumption that all parties acted with an understanding of its character and application. | 659 |
| Where goods were to be shipped by water, the mere transshipment by rail and deposit in warehouse, subject to charges, and without notice to the consignee, is not a conversion entitling him to recover the full value. | 659 |
| In the case of a horse, in apparent good condition when shipped, delivered in a dying condition, but without any fractures or external or visible injury, the shipper must show some negligence of the carrier, to charge him with liability. | 1066 |
| Common carriers are liable for a loss caused by a wrongful delivery of goods. | 984 |
| Where a misdelivery is caused by the failure of the owner to properly mark the goods, or to present them to the carrier or his servant, the carrier, if without fault, is not liable. | 984 1222 |
| The delivery by the carrier to the actual owner is a good defense to an action by the shipper, who had no title. | 1157, 1160 |
| A carrier in possession may maintain a suit to recover damages to the goods transported, resulting from the wrongful act of a stranger. | 608 |
| Payment to a carrier, by an insurance company, of damages to a cargo by a collision, will not prevent the carrier from maintaining a suit against the wrongdoer for the full amount of the damage. | 608 |
| CERTIORARI. | |
| See, also, “States.” | |
| Certiorari may be issued by the circuit court of the District of Columbia to a justice of the peace, in a case of forcible entry and detainer. | 391 |
| CHARTER PARTIES. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Demurrage”; “Shipping.” | |
| Where there was a failure to give security as required, held, that the charter was not completely executed, though the vessel had gone to take in coal for the voyage. | 1104 |
| A charter to carry Chinese coolies between foreign ports is not void on the ground of immorality, when made before the law prohibited American vessels from engaging in such business. | 590 |
| Construction of charter of a ship to carry Chinese coolies from China, to a foreign country, as to the number that might be carried, where it was the custom of the business to overcrowd the vessels. | 590 |
| A vessel, under a charter containing no exception, of restraints of princes, held liable where she failed to take in a cargo of barilla at the Canary Islands, where the authorities required that she should first go to Spain, to quarantine. | 440 |
| As between the charterer and the owner, the charter party, and not the bills of lading, controls, where their terms are conflicting. | 132 |
| After the cargo had been loaded the charterer took it out of the vessel, and refused to fulfill the charter party. Held, that the owner had a lien on the cargo for the breach. | 27 |
| Where the meaning of the charter party is clear, a mistake cannot be alleged in defense to a suit in rem for a breach. | 27 |
| On a libel for freight under a charter, the charterers can recoup damages for a breach only to the amount of the freight. | 440 |
| Chattel Mortgages. | |
| See, also, “Bankruptcy.” | |
| Chinese. | |
| See, “Constitutional Law.” | |
| CITIZEN. | |
| Defendant, born in New York, in 1760, of Irish parents, left in 1771, and resided in the British dominions until his return to America, in 1795. Held not a citizen of the United States. | 356 |
| Cloud on Title. | |
| See “Quieting Title.” | |
| COLLISION. | |
| See, also, “Admiralty”; “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | |
| Nature of liability—Contributive fault. | |
| It is a fault for the entire crew of a sail vessel, including the lookout, to be engaged in handling the sails. | 771 |
| The owners of a vessel whose master gave the order, obedience to which by the mate of the other vessel caused a collision, cannot sustain a claim for damages. | 982 |
| Between sail vessels. | |
| A bark sailing almost directly before the wind will be held in fault for collision with a schooner to leeward, sailing within two points of closehauled. (Rev. St, § 4233, Rule 17.). | 124 |
| A bark closehauled upon the starboard tack, approaching a schooner closehauled upon her port tack, at an angle of about six: points, has the right to keep her course. | 771 |
| The fact that the vessel whose duty it was, under the rules, to give way, was disabled and partly unmanageable, does not impose upon the other vessel the duty to avoid her, unless the disability was manifest. | 771 |
| Where the fault of luffing is induced by the wrongful act of the other vessel, in not giving way, it will not render the vessel liable for damages caused by the collision. | 196 |
| Between steam and sail. | |
| The steamer will be held in fault for the collision, for not slacking speed, stopping or reversing, on discovering the sail vessel, until she learns her course. | 24 |
| A steamer which loses sight of an approaching sail vessel's light must check her speed or stop until she again discovers it. | 1169 |
| The sail vessel will alone be held liable, where she changed her course without reason, and when not in danger, if the collision would not have happened, had she held her course. | 1008 |
| Overtaking vessels. | |
| A vessel sailing closehauled, upon being overtaken by another sailing the same course slightly to windward, is at fault in luffing so as to cause collision. | 532 |
| The overtaking vessel must keep clear, but has a right to assume that the forward vessel will hold her course. | 532 |
| Tugs and tows. | |
| A tug with a tow drawn by a hawser is bound by the rule requiring vessels meeting to pass to the starboard. | 31 |
| A steam tug and canal boat lashed alongside are to be regarded, in respect to the duties of navigation, as one vessel, and that a steam vessel. | 7 |
| Speed: Fogs. | |
| Where, in a thick fog, dangerous proximity is first discovered by the noise of each other's paddles, a vessel will be held at fault for not immediately reversing, where the collision might thereby have been avoided. | 602 |
| Lights: Signals, etc. | |
| It is an act of blamable misconduct for a vessel to run through a harbor at nighttime without exhibiting the lights prescribed by law. | 548 |
| A sail vessel will be held in fault in presenting a confusion of lights to a steamer, where due to want of proper screens or faulty positions. | 994 |
| Schooner sailing in James river on a clear night held not in fault in not exhibiting a signal light. | 553 |
| Particular instances of collision. | |
| Between yacht, after passing under the stern of the tow, and steamer in Chesapeake Bay without a lookout, and whose officers were strangers to the locality. | 386 1223 |
| Between steamer and sail vessel, where the latter presented a confusion of lights, and the former failed to slacken her speed, and both were held in fault. | 994 |
| Between ship towed to sea on a hawser, and schooner coming into the harbor, which came about, instead of keeping her course, and, missing stays, fell across the hawser. | 111 |
| Between tug, with canal boat lashed alongside, and schooner, near Blackwell is Island, where the former crossed the latter's course. | 7 |
| Between steamer coming down the East river, and turning on the Brooklyn side so as to make her berth on the New York side, and schooner running free, close to the New York shore, where the latter was held in fault for not taking any measures to avoid the collision. | 1013 |
| Between steamer, at anchor in the track of a ferry, and the ferryboat, in a fog, where the former failed to ring a bell, and was held solely in fault. | 803 |
| Procedure. | |
| The libel must state the facts constituting the fault in navigation. A mere general allegation that the vessel “was so carelessly, negligently, unskillfully, and recklessly navigated,” etc., is not sufficient. | 770 |
| The testimony of persons on board a vessel as to her movements is entitled to greater weight than that of persons on board of another moving vessel | 7 |
| The rule that the testimony of those on a vessel should prevail, as to what takes place on board her, does not obtain in all cases. | 532 |
| Steamer held not in fault, on the testimony of four witnesses that they were keeping a sharp lookout, and, because of the excessive darkness, did not see the sloop until too late to avoid the collision. | 57 |
| Rule of damages. | |
| A charge for lay days in a charter party furnishes no test to determine the damages for detention during the repair of a vessel. | 24 |
| The net freight which the injured vessel was earning, and has lost, is allowable as an item of damage. | 38 |
| The expenses which the vessel would have incurred in successfully performing the voyage must be deducted from the gross freight. | 38 |
| Division of damages. | |
| The vessel solely at fault must bear the loss occasioned to the other, as well as her own. | 498 |
| Review. | |
| The circuit court, on appeal, will not reverse the decree of the district court, except on a preponderance of evidence. | 39 |
| Compositions. | |
| See “Bankruptcy.” | |
| Compromise. | |
| See “Bankruptcy.” | |
| CONGRESS. | |
| Congress may, within the limits of federal jurisdiction, modify or repeal the existing rules of evidence. | 898 |
| CONSTITUTIONAL LAW. | |
| The equality of protection assured by the fourteenth amendment implies that no charges or burdens shall be laid upon one person which are not equally borne by others and that, in the administration of criminal justice, one person shall suffer for his offenses no greater or different punishment than another. | 252 |
| The inhibition upon the state applies to all instrumentalities and agencies employed in the administration of its government, and to the subordinate legislative bodies of its counties and cities. | 252 |
| A city ordinance requiring that prisoners shall have their hair clipped held invalid, as directed against the Chinese only, and imposing upon them a degrading and cruel punishment. | 252 |
| A grant by the state of immunity from taxation cannot be abrogated without impairing the obligation of the contract, unless the right so to do was reserved as a part of the contract. | 75 |
| CONTEMPT. | |
| Any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is a contempt of the court, and punishable by attachment. | 359 |
| A rule to show cause why an attachment should not issue for a contempt must be served personally, but in a proper case the court will order that service at the last place of abode shall be deemed sufficient. | 367 |
| CONTINUANCE. | |
| The refusal of one of the parties in an action at law to file an answer to a bill seeking discovery of facts essential to the case of his opponent is a ground for continuance | 1028 |
| A newspaper publication of the evidence, arguments of counsel, etc., in a case depending upon the same facts and principles, is no ground for a continuance. | 1046 |
| Cause continued in favor of an administrator who, a few days before, discovered material testimony among intestate's papers. | 596 |
| Cause not continued on affidavit of defendant, made at the trial, that he has heard of one who could be a material witness for him. | 355 |
| An affidavit for continuance on the ground that defendant's receipts have been mislaid must state their amount and date, and set forth facts showing reasonable diligence in searching for them. | 1112 |
| The circumstances of diligence used to obtain the testimony of an absent witness may be proved ore tenus. | 133 |
| CONTRACTS. | |
| See, also, “Assumpsit”; “Sale”; “Vendor and Purchaser.” | |
| Matters incidental to the performance of a contract are governed by the law of the place of performance, while matters which go to its execution or validity are determined by the law of the place where it is made. | 710 |
| Contracts are to be construed to effectuate the intention of the parties, where that is consistent with the principles of law. | 378 |
| Ambiguous terms are to be explained by the common use of such terms in the country where the contract, etc., was made. | 984 |
| If a written instrument be so expressed as that a reasonable construction can be given to it, and, when so given, it does not plainly appear to be at variance with the agreement, the latter is not to be regarded. | 309 |
| Where the time of payment is made a substantial, and not a mere formal, circumstance, it enters into the essence of the contract, and must be observed. | 378 |
| An action will lie for breach of an agreement by B. that if A., who had a claim against B. and C, would obtain judgment against C, and levy on his property, B. would bid the amount of the claim, though the claim was lot valid as against B. | 525 1224 |
| Conversion. | |
| See “Trover and Conversion.” | |
| CORPORATIONS. | |
| See, also, “Banks and Banking”; “Counties”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers.” | |
| Certain persons formed a corporation under Act Cal. April 11, 1862, and before transacting any business, but without a formal disincorporation, reincorporated themselves under Act 1853, under which all their business was done. Held, that the validity of their acts must be determined by Act 1853. | 1109 |
| A corporation has power to make commercial notes, without express authority. | 12 |
| A corporation may borrow money, or deal in credits, or become a party to negotiable paper, in the transaction of its legitimate business, unless expressly prohibited. | 881 |
| The president of a turnpike company, without the authority of the directors, held to have no power to issue certificates of stock without consideration. | 322 |
| Authority under seal or under order entered on the corporate books is not necessary to charge the corporation for an injury done by its agent. | 461 |
| The validity of the incorporation cannot be questioned after a party has been impleaded, and recognized in decrees made in the cause, as a corporation. | 641 |
| A purchaser of bank stock becomes its legal owner on its full sale to him, without waiting the formal transfer on the books of the bank. | 777 |
| The court will compel a bank to permit a transfer of shares of its stock to be made upon the proper books to the rightful owner, regardless of the by laws on that subject. | 777 |
| Trustees in an attachment suit, who unsuccessfully contest a transfer of bank stock on the books of the bank on the ground that the sale by the debtor was fraudulent as to the attachment creditor, are liable for costs. | 777 |
| The fact that a corporation is insolvent will not authorize it to apply for a receiver to wind up its affairs. | 829 |
| Service upon a corporation of process from a federal court must be made under the United States, and not the state, statute. | 870 |
| A corporation cannot be served with process outside of the state where it was created. | 870 |
| COSTS. | |
| In actions for slander, or trespass vi et armis, the plaintiff, recovering less than $10, can recover only two-thirds of the costs of suit. (Geyer, Dig. Ark. 260.). | 176 |
| Full costs allowed upon a verdict of nominal damages in an action upon the case, against a city for injury done by raising the level of a street. | 462 |
| The rules for the guidance of the court in allowing or disallowing costs in equity stated by Woodbury, J. | 615 |
| Costs in equity are given to the prevailing party, except where such a course would be inequitable. | 957 |
| Costs are in the discretion of the court, in admiralty cases. | 178 |
| Costs will not be imposed upon seamen, in admiralty, when they establish probable cause for instituting suits for redress. | 730 |
| Costs allowed seamen for an underpayment by mistake by the master, who refused to correct the error, though they failed on their main contention. | 307 |
| It is the duty of each party to pay his own costs as they arise in the course of proceedings. Its performance the court will compel by attachment, if necessary. | 761 |
| A consent to a taxation of costs equitably made by the clerk cannot be withdrawn upon the coming in of the master's report. | 325 |
| The supreme court has power to diminish any fees fixed by statute, but not to increase them. | 588 |
| In ordinary cases an independent charge for costs of a reference to a commissioner in a suit for seamen's wages is not allowed. | 403 |
| The expenses of plaintiff and his counsel in attending court at a distance, on a motion to modify a decree in equity, cannot be taxed as part of his costs on a decree in his favor on final hearing. | 1059 |
| Nor are expenses for printing pleadings, testimony, and briefs, and of making drawings used on the final hearing, and of reporting arguments of counsel for the court, proper items of taxation, unless so stipulated. | 1059 |
| The amount paid for telegraphic dispatches is allowable, if shown by affidavit to have been properly and necessarily expended in the suit. | 1059 |
| The amount paid for copying papers to be used in the suit is not allowable. | 1059 |
| In a patent suit, the expense of models which are copies of those on file in the patent office, and are properly procured for use in evidence, is allowable, but not that for other models. | 1059 |
| A bond for “all costs that may accrue in this suit, and be adjudged against the plaintiff,” is sufficient, under a rule requiring a bond “for all costs for which the plaintiff may be liable in the suit.”. | 761 |
| A surety for fees and costs is not liable to attachment for not paying plaintiff's witnesses for their daily attendance. | 1121 |
| COUNTERFEITING. | |
| It is a crime to photograph a United States treasury note, though the similarity between the photograph and the original be not such that it is calculated to deceive the public. | 328 |
| It is a crime to manufacture a coin adapted to be used to circulate as money, though of original design. | 328 |
| COUNTIES. | |
| See, also, “Municipal Corporations”; “Railroad Companies.” | |
| Irregularities in the election authorizing the issue of bonds is no defense against bona fide holders for value, without actual notice, where public officers are to decide whether the requisite sanction has been given, and the bonds recite it. | 838 |
| COURTS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Equity”; “Judges”; “Justices of the Peace”; “Maritime Liens”; “Removal of Causes”; “States.” | |
| In general. | |
| The courts of the United States are bound by the decision of the executive of a question as to the existence or validity of an organization claiming to be the lawful government of a foreign country. | 529 |
| In the case of a civil war in a foreign country, the old established government must be considered as the lawful organization until the executive publicly recognizes the new government. | 529 1225 |
| Federal courts—Jurisdiction in general. | |
| As to the meaning of the words “admiralty” and “maritime,” as used in the constitutional grant of judicial powers. | 984 |
| The grant of jurisdiction in patent cases is as full in equity as it is at law. | 290 |
| Jurisdiction cannot be acquired in equity by a substituted service, although defendants, who are not inhabitants of the district, remain continually absent therefrom to avoid service of process. | 1141 |
| A deed executed for the purpose of giving jurisdiction is ineffectual to sustain jurisdiction. | 1039 |
| The court will, of its own motion, refuse to proceed, where a want of jurisdiction appears at any time before trial. | 16 |
| —Jurisdictional amount. | |
| In an action for tort, the amount of damages laid in the declaration fixes the jurisdiction. | 868 |
| —Grounds of jurisdiction. | |
| The federal court has jurisdiction of an action involving the title to land held under patents issued upon confirmed Mexican grants, and depending upon a controverted construction of such patents. | 193 |
| The federal court has no jurisdiction, on the ground of subject-matter, of a suit by the licensee of an exclusive territorial right to use a patented article, to enjoin a use by one to whom the patentee sold the patented article in violation of his contract. | 182 |
| The federal court has no jurisdiction where both plaintiff and defendant are aliens. | 194 |
| The federal court has jurisdiction between a citizen of a state and an alien, without reference to which of them is plaintiff or defendant. | 194 |
| A bill equity describing complainants and part of respondents as of one state, and the respondents on whom service is made, and who appear, as of the state where the suit is brought, is not demurrable for want of jurisdiction. | 16 |
| The federal courts have no jurisdiction of a bill of foreclosure by the assignee of a mortgage, where the mortgagor and mortgagee are citizens of the same state. | 185 |
| The rule that a promissory note payable to bearer is excepted from the prohibition of section 11 of the judiciary act does not apply to an accompanying mortgage. | 185 |
| No civil suit can be brought before a United States circuit or district court in any other district than that whereof defendant is an inhabitant, or in which he shall be found. | 348 |
| The case will proceed against the person appearing and notified, without prejudice to the others, where their interests can be severed and tried separately. | 16 |
| The want of an averment of citizenship, if not made in the bill or declaration, or where falsely alleged, is available only where raised by pleading. | 188 |
| —Circuit courts. | |
| The circuit courts have no jurisdiction save such as is expressly conferred by act of congress. | 781 |
| The circuit court for the Southern district of New York has no original jurisdiction of a suit for the infringement of a patent which occurred within the Northern district of New York. | 272 |
| The proceedings on bonds for value or stipulations in admiralty are incident to the principal cause, and the circuit court has no jurisdiction except on appeal from the final decree. | 344 |
| —District courts. | |
| The federal jurisdiction in admiralty in South Carolina extends to all cases whereof the state admiralty courts, by statute or otherwise, had jurisdiction before the federal constitution was adopted. | 996 |
| —Administration of state laws. | |
| A state statute allowing defendant in ejectment a new trial on payment of costs is binding in the federal court. | 187 |
| The federal courts follow the state law and the precedents of the state courts in deciding questions as to the validity of transfers of property as against creditors. | 87, 650 |
| Whatever is conclusive as to title of land in the state court is equally conclusive in the federal court. | 187 |
| —Following state practice. | |
| The authority to stay proceedings against an insolvent debtor given to the supreme court of a state, held, cannot be exercised by a federal court. | 489 |
| A person discharged under a state insolvent law in operation at the date of the process act of May 19, 1828, cannot be imprisoned under final process of the federal court for debts contracted prior to the filing of the petition. | 489 |
| COVENANTS. | |
| See, also, “Landlord and Tenant,” | |
| A covenant to pay rent runs with the land. | 1044 |
| CREDITORS' BILL. | |
| In Michigan a creditors' bill may be filed on the return of an execution nulla bona before the return day named in the writ. | 658 |
| On a creditors' bill, assignees under an alleged fraudulent assignment, made defendants, may show that defendant in execution had property. | 658 |
| Criminal Law. | |
| See “Arrest”; “Bail”; “Habeas Corpus.” | |
| CUSTOM: AND USAGE. | |
| Regulations prescribed by merchants to define and control the usages or customs which shall prevail in their intercourse have not the effect of positive statutes. | 1178 |
| CUSTOMS DUTIES. | |
| Customs laws. | |
| General terms in a customs act, although sufficiently broad to comprehend a certain article, are not applicable if it is specifically designated therein. | 1099 |
| Rates of duty. | |
| Shawls, in part woolen, held dutiable at 50 per cent., under Act 1832, § 2, art. 2. | 836 |
| Invoice: Entry: Appraisal. | |
| The charge for “costs and charges must include only those actually paid. | 1095 |
| A charge for commissions at “the usual rates” forms part of the dutiable value, though the importer has paid no commissions or a higher rate. | 1095 |
| Charges for inland or coastwise transportation to the place of shipment cannot be added to the invoice, as forming part of the dutiable value. | 1095 |
| Where goods are to be valued “at the place from whence exported,” the value of goods manufactured in one city, and sent to another for exportation, will include the costs of transportation between such places. | 306 |
| A penalty for undervaluation cannot be imposed on the importation of goods by their producer, where a corrected invoice is handed in before any action is taken to determine the value of the goods. | 742 1226 |
| Payment: Protest. | |
| The protest must point out the particulars in which there was an overvaluation, to entitle the importer to claim any overvaluation. | 59 |
| A protest against paying duties on costs and charges, because the goods were invoiced “free on board,” is insufficient, unless those words are found in the invoice. | 1095 |
| A protest stating that it is intended “to apply to all future similar importations” is valid as a prospective protest. (Act March 3, 1857.). | 1095 |
| Actions for duties paid. | |
| Act March 3, 185 § 5, providing that the decision of the collector, unappealed from, shall be final as to “liability to duty, or exemption therefrom,” does not apply to a case of additions to the invoice of illegal charges. | 1095 |
| The meaning of “delaines,” as used in Act 1857, is a question for the jury, to be determined upon evidence showing how such term was used by dealers at the date of the passage of the act. | 1099 |
| The presumption of the correctness of the decisions of customs officers must be overcome by a fair preponderance of proof as to the commercial use of the term at the date of the act. | 1099 |
| Remedies for recovery—Lien. | |
| Imported goods may pass by sale, though duties are due thereon. They are not liable for other duties due from the consignee, but only for the duties due on such goods. | 734 |
| Customs officers. | |
| Inspectors of the customs are public officers and not the mere servants and agents of collector. | 465 |
| The amount received by officers of the customs for forfeitures constitutes no part of the emoluments to which the limitation of the maxim of compensation allowed by law applies. | 465 |
| Commissions on duty bonds are a part of such “emoluments”. | 762 |
| DAMAGES. | |
| See, also, “Contracts”; “Collision”; “Death by Wrongful Act”; “Patents.” | |
| No damages are given for fright or mental suffering resulting from mere risk or peril, where no actual injury has been sustained, nor for the result of mental or nervous disturbance, where no bodily harm is sustained. | 386 |
| DEATH BY WRONGFUL ACT. | |
| Damages are recoverable by a libel in rem in admiralty, for the wrongful death of a person, independent of statutory remedy. | 386 |
| A right of action for a death caused by wrongful act, given by a state statute, may be enforced in admiralty. | 138 |
| The widow and son of a hand killed on a steamboat by the negligence of the engineer have a remedy against the owners of the vessel, but not in rem against the vessel. (Acts 1838, 1852.). | 138 |
| Act July 7, 1838, § 13, makes the fact of the injurious escape of steam full prima facie proof of negligence to charge the defendant in all actions against proprietors of steamboats for injuries occasioned by injurious escape of steam. | 138 |
| Only the pecuniary loss is considered, in computing damages. Nothing will be allowed by way of punishment, or for the sufferings of the deceased, or for bereavement of his relatives. | 386 |
| In the case of a minor son, 18 years old, who earned less than the cost of his support, $700 were allowed his widowed mother. | 386 |
| DEBT, ACTION OF. | |
| Debt will lie by an indorsee against the drawer of a bill of exchange, where intermediate indorsements are stricken out. | 447 |
| DECEIT. | |
| No action will lie for false representations as to credit made in a letter to defendant's agent, marked “Confidential,” without proof of authority from the writer to exhibit it. | *1147 |
| Dedication. | |
| See “Municipal Corporations.” | |
| DEED. | |
| See, also, “Vendor and Purchaser.” | |
| A conveyance to “P. H. & Son,” a mercantile firm, is a sufficient description of the son to enable him to take under the deed. | 304 |
| The assent of the grantor to a deed clearly for his benefit may be presumed, unless a consideration is to be paid, when it must be proved. | 1039 |
| The general description, “being the same land,” given by the grantor's mother to the grantee by will, will not control specific boundaries in the deed. | 706 |
| The deed, though acknowledged and recorded, may be shown to have been fraudulently antedated, on the testimony of the grantor. | 326 |
| DEMURRAGE. | |
| See, also, “Bills of Lading.” | |
| An ordinary bill of lading implies an agreement that the goods shall be received within a reasonable time after the arrival of the vessel at her port of destination. | 1138 |
| The master has a lien upon the cargo for demurrage, enforceable in admiralty, though not expressly stipulated for in the bill of lading. | 1138 |
| DEPOSITION. | |
| Affidavit of service of notice of taking of deposition by leaving it at defendant's lodging held insufficient, where the place of lodging was not specified. | 174 |
| When notice is given that a deposition will be taken between certain hours, it is not necessary to wait until the last hour. | 598 |
| A witness casually absent from home, although found at a place more than 100 miles from the place of trial, unless he is aged and infirm, etc., cannot be subjected to an examination de bene esse. | 872 |
| Objection to parts of depositions should be made before the final hearing, by motion to strike out. | 240 |
| An agreement to admit certain depositions held to extend to the final determination of the cause | 197 |
| Deposition excluded in a trial at Philadelphia; it appearing that the witness generally lived in his boat, but, when on land, stayed in Jersey City.—less than 100 miles from the place of trial. | 486 1227 |
| DESCENT AND DISTRIBUTION. | |
| A citizen of another state is not deprived of the right to sue the administrator in the federal court by a representation of insolvency. | 906 |
| In Rhode Island, commissioners of deceased insolvents have not jurisdiction of merely equitable claims. | 906 |
| The presentation to the commissioners of an insolvent estate, and the adjudication of a claim of which they have not jurisdiction, is not a bar to a suit thereon. | 906 |
| Discharge. | |
| See “Bankruptcy”; “Insolvency.” | |
| DISTRICT OF COLUMBIA. | |
| Distress for taxes due to the corporation of Washington is not barred by the statute of limitations. | 311 |
| The original by laws of Georgetown need not be made under the seal of the corporation. | 390 |
| The mayor of Georgetown may, in that town, do any act which a justice of the peace of the county can do. | 286 |
| Appointment of constables for Georgetown. | 390 |
| An attachment under Act Md. 1795, c. 56, will lie against lands and tenements in Alexandria county, D. C. | 581 |
| Confession of judgment in the District of Columbia,—form and effect. | 286 |
| DOMICILE. | |
| See, also, “Courts”; “Removal of Causes.” | |
| What will constitute residence, in contradistinction to temporary domicile. | 1123 |
| DOWER. | |
| A feme covert is not entitled to dower in real estate which was held as partnership assets. | 213 |
| Where property is covered by a mortgage, inchoate dower attaches only to the equity of redemption. | 213 |
| EJECTMENT. | |
| See, also, “Adverse Possession”; “Real Property.” | |
| In Michigan the action must be brought against the tenant in possession. If no one be in possession, it must be brought against any one exercising acts of ownership over, or claiming title to, the premises. | 1112 |
| On a bill by the owner to enjoin ejectment, the tenant in possession must be named as co-complainant. | 182 |
| The same length of possession by defendant which will bar a recovery is sufficient, if had by plaintiff, to sustain a recovery. | 430 |
| To avoid the bar of a statute by entry, it must be shown that the entry was made with intent to claim possession, and some act done indicative of such intention. | 430 |
| An objection to the jurisdiction over a certain defendant is personal to him. | 194 |
| Plaintiff cannot proceed with a second trial in ejectment where the costs of the former ejectment, which had been non pros'd, were not paid. | 1036 |
| ELECTIONS AND VOTERS. | |
| A suit will not lie in the federal court to enjoin state election officers from registering voters or holding an election in pursuance of a state law on the ground that the same is unconstitutional. | 421 |
| EMINENT DOMAIN. | |
| The legislature only can determine when and in what cases private property shall be taken for public use. Its determination is final on such question, but not on the question of what is a public use. | 539 |
| EQUITY. | |
| See, also, “Courts”; “Pleading in Equity”; “Practice in Equity.” | |
| A bill in equity will lie by a feme covert to recover money held to her separate use. | 906 |
| Equity will not entertain a suit to cancel a policy of insurance, and enjoin the insured from bringing action thereon, on the ground of fraud in obtaining it, which may be set up in defense of an action at law. | 449 |
| A mistake in supposing the terms of an agreement reduced to writing, and read by the parties, to be in legal effect the same as those orally agreed on, is no ground of equitable relief. | 480 |
| Where a loan is made on agreement to give collateral security on property, and by mistake a power of attorney only is taken, equity will relieve the creditor, after the death of the debtor insolvent, by enforcing the original agreement against his administrator. | 913 |
| Equity will not enforce, as against general creditors of an insolvent estate, an agreement for a lien or security for a debt, where the lien or security has failed by a mistake of law. | 933 |
| Nor will it direct a new security to be given where an old one, chosen by the parties, has, from a mistake of law, become a nullity. | 933 |
| Equity will not relieve a party who takes personal security for money, instead of a mortgage on property, under a mistake of law, by all parties, that the former was as safe as the latter, and substitute for it a lien or mortgage on the property. | *938 |
| Material misrepresentations in a treaty for the sale of property, by which the purchaser, having no means of knowing the truth, is deceived, to his injury, is ground for rescission of the contract subsequently made, whether they be the result of mistake or fraud. | 566 |
| Equity will not relieve a purchaser, having full means of knowledge within his reach, where he relies upon his own judgment, uninfluenced by any misrepresentations. | 566 |
| A bill in equity will not lie to rescind a sale of timber land, for misrepresentations as to quantity, where the vendees, after exploration of the land, have cut large quantities of timber therefrom. | 566 |
| A bill in equity will lie for the specific performance of a contract for the sale of three-eighths of a vessel being built, with a right of the purchaser to command, and to enjoin a sale of any interest therein, except with notice of such contract, and to prevent the appointment of any other person as master. | 127 |
| A trespass by an officer of the Freedmen's Bureau, in the levying of an execution upon personal property, cannot be enjoined by a court of equity. | 56 |
| Where inadequacy of price is so great that the mind revolts at it, slight additional circumstance of advantage or oppression will be sufficient to set aside the sale, though mere inadequacy of price is not alone sufficient. | 405 1228 |
| ESTATES. | |
| The freehold estate which vests in a relessee under deed of lease and release by enlargement is an estate at common law, which does not require the aid of the statute of uses to execute the possession to the usee. | 1039 |
| A mortgagee purchased the mortgaged premises at a sale under a judgment obtained by him on his mortgage bond. Held, that the equity of redemption was merged in the legal title. | 177 |
| Estoppel. | |
| See “Judgment.” | |
| EVIDENCE. | |
| See, also, “Appeal”; “Deposition”; “Trial”; “Witness.” | |
| Hearsay. | |
| Statements by the parties at the time of making an agreement held admissible as evidence of the agreement. | 957 |
| Affidavits made ex parte, several years before, to prove pedigree, held admissible as hearsay. | 1036 |
| Depositions taken in another suit for freedom of a slave, by one of the same family, are inadmissible, as hearsay, in relation to the common ancestor. | 883 |
| Declarations and admissions. | |
| Declarations of inhabitants of a town, when made as individuals, and not in the capacity of agents or officers, are not competent to bind the town. | 957 |
| Declarations of a party, made before a dispute arose, in connection with acts, may be competent evidence for him to prove the intentions existing at such time. | 609 |
| In an action upon a joint promissory note, brought against one maker only after the bankruptcy of the other, the admissions of the latter are admissible against defendant. | 636 |
| Conversations as to the ownership of property, between the ancestor of plaintiff and a third person, held admissible in evidence for plaintiff. | 389 |
| Opinions. | |
| The opinion of a witness, who has seen the party sign a paper, that another paper is also in his handwriting, is competent, although his opinion is the result of comparison. | 494 |
| Documentary. | |
| An instrument of 30 years' standing, not impeached, need not be proved by the subscribing witness. | 197 |
| A certified copy of a deed, not authenticated by the seal of the recorder, is not admissible in evidence. | 551 |
| Original entries made in testator's books by a clerk who subsequently became executor are competent evidence in an action by him for goods sold and delivered by testator to defendant. | 272 |
| Parol evidence. | |
| Parol evidence cannot be given of the understanding of the parties as to the obligation of a written contract. | 1015 |
| Plaintiff may show by parol that an agreement in writing made by a member of a firm was made by him as agent of the firm. | 1088 |
| Competency, materiality, and relevancy. | |
| The record of a trial and verdict against plaintiff in a suit by him against another cannot be given in evidence by another defendant. | 1039 |
| The testimony of a tax assessor as to whom property is assessed on the books held admissible to prove payment of taxes by such party. | 389 |
| EXCEPTIONS, BILL OF. | |
| Bill of exceptions not allowed after lapse of 2% years, where writ of error was pending in the supreme court. | 3 |
| Exchanges. | |
| See “Bankruptcy.” | |
| EXECUTION. | |
| See, also, “Admiralty”; “Attachment”; “Bankruptcy”; “Garnishment”; “Judgment.” | |
| As between two executions,—one in the hands of a constable, and the other in the hands of a sheriff,—the one first levied has the prior right. | 833 |
| Personal notice of the time and place of sale of land must be given by the sheriff, under Act Pa. 1705, c. 153, § 4. | 1044 |
| An equity of redemption, at common law, cannot be sold on execution. | 177 |
| EXECUTORS AND ADMINISTRATORS. | |
| See, also, “Arbitration and Award”; “Descent and Distribution.” | |
| An administrator of a deceased partner may settle with the survivor on such terms as, in the exercise of good faith and reasonable diligence, he may choose to accept. | 766 |
| Outstanding judgments cannot be given in evidence on plene administravit, but must be specially pleaded. | 204 |
| Exemptions. | |
| See “Bankruptcy”; “Homestead.” | |
| Factors and Brokers. | |
| See “Principal and Agent.” | |
| FISHERIES. | |
| See, also, “Seamen.” | |
| Act July 20, 1790, c. 29, which allows to seamen shipped without a written contract the highest rate of wages, does not apply to fishing voyages. | 1145 |
| Fishermen who ship without a written agreement are not within Act June 19, 1813, c. 9. | 1145 |
| FIXTURES. | |
| A mortgage of a mill covers machinery afterwards purchased and put into the mill. | 335 |
| FORCIBLE ENTRY AND DETAINER. | |
| An inquisition, describing the property as “one tenement or storehouse, with the appurtenances, in the county aforesaid,” will be quashed for uncertainty. | 391 |
| FORFEITURE. | |
| See, also, “Customs Duties”; “Informers”; “Internal Revenue”; “Shipping.” | |
| After a final decree of condemnation, unappealed from, in a cause of seizure by a collector for a breach of the revenue laws, the collector's share of the forfeiture is a vested right, which the secretary of the treasury cannot remit. | 344 1229 |
| FRAUD. | |
| In Texas a charge of fraud should point out, at least in general terms, the acts relied upon to sustain it. | 225 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy.” | |
| The possession by the seller, after the sale, of fixtures used in a tobacco factory, held not fraudulent in Virginia. | 650 |
| A mortgage to secure the payment of $90,000, where but $4,000 were due the mortgagees, is fraudulent as to creditors. | 783 |
| A deed is not fraudulent, if procured to be made by a father to his infant son in payment of a just debt, though the father be in embarrassed circumstances. | 197 |
| A reasonable advancement made by a person of ample fortune, though at the time indebted, is not fraudulent as to existing creditors, where he subsequently becomes insolvent. | 513 |
| A debtor divided his estate between three sons, on condition that they give their bonds in certain amount to the husband of his daughter. Held, that the latter was liable to the creditors for the amount received by him on the bonds thus given. | 513 |
| Donees will not be held liable only for the proportions which their respective gifts bear to the donor's debts, but the whole of every gift will be subjected to the payment of the debts. | 513 |
| GARNISHMENT. | |
| See, also, “Attachment.” | |
| A judgment against a garnishee, obtained at a former term by surprise, will be set aside, and the execution quashed. | 443 |
| Grant. | |
| See “Boundaries” “Public Lands.” | |
| GUARANTY. | |
| See, also, “Bills, Notes, and Checks.” | |
| Where the guarantors of a note are the holders, their guaranty will be considered a part of the transfer, and as importing a consideration. | 622 |
| GUARDIAN AND WARD. | |
| A state may lawfully authorize the appointment of a guardian of the property within the state, of nonresident minors. | 766 |
| A sale by the guardian of his ward' land is void as against the ward, or those claiming under him, unless it Appears that the same was made at public auction after due notice. (Act Or. Dec. 16, 1853.). | 259 |
| HABEAS CORPUS. | |
| The writ will not issue out of the federal court to inquire into the detention of a person arrested in one state, charged with a crime committed in another state, to await the requisition of the governor of the latter state, and the issuance of a warrant of extradition. | 753 |
| A soldier in the regular service, convicted in a state court, and sent to, state, prison, for murder, in firing upon and killing a bushwhacker while acting under orders of his superior officer, will be discharged on habeas corpus. | 1024 |
| The district court may release on habeas corpus a prisoner sentenced by a military commission under the reconstruction acts to a longer term of imprisonment than provided by the law of the state. | 73 |
| HIGHWAYS. | |
| See, also, “Towns.” | |
| The highway, as laid out, must have a certainty of limits and direction. A direction that it shall run from a certain point, “as it may be found the most convenient way,” is insufficient. | 116 |
| The use of a certain highway from 40 to 60 years raises a presumption that it was legally laid out as used. | 116 |
| Use of a road for more than 20 years is evidence of its being a public highway. | 864 |
| HOMESTEAD. | |
| See, also, “Bankruptcy.” | |
| Liability on the official bond of a public administrator at the time of receiving personal property held within the meaning of a homestead exemption statute providing that it shall not apply “to any debts or liabilities contracted before” it took effect. | 463 |
| HUSBAND AND WIFE. | |
| See, also, “Marriage.” | |
| A feme covert, by charging her inchoate right of dower for her husband's benefit, does not thereby become a surety for him. | 213 |
| Trover will not lie against a husband and wife for a conversion to her use only 213. | 346 |
| INDIANS. | |
| The patents to Wyandot Indians under the treaty of January 31, 1855, conveyed to the head of the family the land in fee. | 114 |
| INFANCY. | |
| See, also, “Guardian and “Ward.” | |
| On a contract made with an infant for necessaries, plaintiff can only recover the value of the articles furnished. All other contracts are voidable. | 1117 |
| Acknowledgment by defendant, when of full age, of a contract made by him while an infant, if made after suit brought, will not avail plaintiff. | 1117 |
| INFORMERS. | |
| Where a seizure is made by a collector in pursuance of information given by an inspector of customs, the latter is entitled to the informer's share of the forfeiture. | 465 |
| Injunction. | |
| See “Equity”; “Patents.” | |
| INSANITY. | |
| The presumption is in favor of mental capacity, and, in order to affect the validity of a deed or will, incapacity must be proved. | 314 1230 |
| If general derangement of a grantor is proved at any time prior to the execution of the deed, the grantee must prove capacity at the time of the execution. | 314 |
| INSOLVENCY. | |
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy.” | |
| A prior application and conviction is no bar to a subsequent application for the benefit of the insolvent act, on a subsequent execution. | 439 |
| Act 1797, c. 74, giving a priority to the United States, applies to equitable as well as legal debts; but such priority cannot be enforced in a suit at law brought in the name of a private creditor, who has assigned his claim to the United States. | 672 |
| A discharge of the person and present estate, under the insolvent acts of Maryland, cannot be pleaded in bar of a suit in Massachusetts, so as to discharge the party from the common execution. | 205 |
| Inspection. | |
| See “Practice at Law”; “Trial.” | |
| INSURANCE | |
| See, also, “Marine Insurance.” | |
| The contract. | |
| Unrestricted authority to negotiate a contract of insurance by issuing a policy includes authority to make a valid preliminary contract for such issue. | 884 |
| The receipt of a premium by the agent binds the company, though the agent convert it, and the policy is never issued. | 1168 |
| An action at law will lie for breach of a contract to issue a policy insuring against fire, and the same damages may be recovered as in an action on the policy agreed to be issued. | 883, 884 |
| A parol contract of insurance is not merged in a policy issued, which does not conform thereto. | 884 |
| Insurable interest. | |
| In an action on a policy in favor of a wife, upon the life of her husband, plaintiff must prove the marriage, to show an insurable interest. | 315 |
| A covenant by the lessee to pay the cost of insurance, in addition to the rent, confers no authority upon him to insure for the benefit of the lessor. | 121 |
| A lessee who has insured his leasehold interest cannot recover upon the policy, where he has parted with all his interest in the premises before the loss. | 121 |
| Premiums. | |
| Where, by the terms of the policy, the premium is payable half in cash and half in note, a notice that the entire premium must be paid in cash will excuse formal tender of the premium. | 140 |
| Warranties: Representations. | |
| A statement in the application that there was being constructed a force pump, etc., is not a warranty. | 700 |
| A misrepresentation, to avoid the policy, must have been in relation to a material fact that would have probably induced the insurer to decline the risk. | 383 |
| A declaration that the insured had not previously had a severe disease held not to include those ordinary diseases which yield readily to medical treatment, and do not tend to shorten life, such as a disease of the bowels which lasted three weeks. | 383 |
| Conditions of policy. | |
| Construction of clauses in fire policy respecting subsequent insurance and termination of interest. | 319 |
| Insurance made by a mortgagee at the expense of the mortgagor is subsequent insurance by the mortgagor. | 319 |
| A conveyance which equity will treat as a mortgage does not terminate the interest of the assured. | 319 |
| A deed from the insured, where there is no evidence that it has been recorded or delivered, or possession taken under it, is not admissible to sustain the defense of a change in title or possession. | 883 |
| Where the insurance agent knew that a mill was not in use as such when the contract was made, its continuance in such state is not a breach of a condition that the policy shall be void if the mill shall cease to be operated as such. | 884 |
| Where the policy is conditioned to be void if any of the representations contained in the application are untrue, it is immaterial that they were not intentionally untrue, and had no effect upon the risk. | 315 |
| Cause of loss. | |
| Loss sustained by the removal of goods in imminent danger from fire is recoverable under a policy insuring them from loss or damage by fire while they “shall be and remain in” a certain building. | 438 |
| Proof of loss. | |
| The company's local agent may bind it by waiver of a clause requiring formal proofs of loss, and barring suits not brought in one year. | 1168 |
| Statements that the proofs were “all right,” and that the company would pay, amount to such waiver. | 1168 |
| Insurers cannot complain that the proofs of loss were not verified by the books of account of the insured, as provided by the policy, where, supposed by the insured to be lost, they were in fact in the insurer's possession. | 795 |
| The insured forfeits his right where, with intent to defraud, he makes claim for a larger loss than he actually sustained. | 793, 794 |
| The insured does not forfeit his rights by an overstatement of his loss, when made from his best recollection, without intention to deceive. | 794 |
| Actions. | |
| The “sixty days after due notice and proof of loss,” before right of action accrues, begin to run from the time of furnishing the proof, not from the time of furnishing additional proof required by the company. | 793, 795 |
| Where the loss is payable to the mortgagee on a policy issued to the mortgagor, any defense admissible against the mortgagor is available against the mortgagee; otherwise where the contract is made with the mortgagee. | 884 |
| The burden of proof is upon plaintiff to establish insanity, when set up in reply to the defense of suicide in an action on a life policy. | 94 |
| The examining physician is the agent of the insurer, and not of the insured, and the company cannot show that he was incompetent. | 383 |
| The certificate of the examining physician of a life insurance company is evidence of its recitals, and is conclusive, unless his opinion was influenced by fraudulent representations or concealment of material facts. | 383 |
| The question of fraud on the part of the insured, which, under the terms of the policy, works a forfeiture, is to be decided by the preponderance of evidence, under the rule in civil cases. | 700 1231 |
| The defense of incendiarism, fraud, or negligence must be made out by a preponderance of proof. The evidence, must be either direct and positive, or the circumstances must be convincing, admitting no other natural conclusion. | 793, 794 |
| Weight and sufficiency of evidence to show that the insured caused his property to be burned determined. | 700 |
| Fraud in the valuation of the property insured will vitiate the policy. | 700 |
| On a bill of interpleader filed by an insurance company, where the widow of deceased, his son, and a foreign administrator all claimed the fund, held that it should be paid to the foreign administrator, on his giving bond to hold the same for the benefit of whom it may concern. | 1209 |
| Interest on the amount of the loss, from the commencement of the action, should be allowed. | 93 |
| INTEREST. | |
| See, also, “Usury.” | |
| A bond payable on a certain date, with interest thereon “at the rate of 10 per cent. per annum,” draws such rate until maturity, and only the statutory rate thereafter, as in cases where interest is not specified. | 892 |
| The authorities on the subject of compound interest reviewed. | 352 |
| INTERNAL REVENUE. | |
| See, also, “Forfeiture”; “Informers.” | |
| A tax upon a dividend declared in January, 1870, of earnings for the past year, made payable on or before March 15, 1870, cannot be collected from the corporation. | 454 |
| Act March 2, 1867, § 10, prohibits a suit to restrain the collection of any sum by authority of the United States, having the form and color of a tax, by any means authorized by law for the collection of taxes. | 743 |
| JUDGE. | |
| See, also, “Courts”; “Justices of the Peace.” | |
| Where the aspect of the case is substantially changed by new evidence, a district judge sitting alone in the circuit court may review or set aside the action of the court, when presided over by the circuit justice. | 1067 |
| JUDGMENT. | |
| Rendition and entry. | |
| The judgment cannot exceed the amount claimed in the declaration. | 314 |
| A supersedeas judgment must recite the original judgment correctly. | 402 |
| Operation and effect. | |
| In Pennsylvania the judgment operates, as against bona fide purchasers or mortgagees, only from the time of the entry. | 1031 |
| A judgment against joint debtors held not a lien, either at law or in equity, on real estate standing in the name of one who had not been served with process, and did not appear in the suit, though purchased with funds belonging partly to the other debtors. | 202 |
| A judgment prior in point of time is paramount to a later judgment, though the latter be first enforced, and the former is enforced by a bill in equity to which the owner of the second judgment is not made a party. | 645 |
| In such case the junior judgment creditor will, in equity, be allowed to redeem, even after the statutory period of redemption has expired. | 645 |
| In Pennsylvania a judgment must be revived every five years, by sci. fa., to preserve its lien, as against bona fide purchasers or mortgagees. | 1031 |
| The fact that the declaration in an action at law is not sufficient to withstand a demurrer will not prevent the judgment in the action from being a bar to any other suit for the same cause of action. | 834 |
| Relief against: Opening: Vacating. | |
| Judgment by confession taken against one defendant set aside for irregularity where the other had been served with process. | 1117 |
| Of different jurisdictions. | |
| A state-court judgment is conclusive in the bankruptcy court of a fact ascertained by it, and binding therein until reversed in due course of law. | 1073 |
| The sentence of a foreign court of admiralty, being full, and showing the ground of condemnation, no other part of the record need be produced. | 593 |
| Actions on judgments. | |
| In an action upon a judgment of another state, the record recital of service of process is not conclusive. | 950 |
| But the burden is in all cases upon defendant to overcome the recital by competent evidence. | 950 |
| JURY. | |
| Alienage of a juror is cause of challenge, but not per se sufficient to set aside a verdict, whether the party complaining knew the fact or not. The objection should be taken at the time of impaneling the jury. | 370 |
| In a suit on a life insurance policy, where the defense is suicide, it is a good cause of challenge that the juror considers the fact of suicide conclusive evidence of insanity. | 94 |
| JUSTICES OF THE PEACE. | |
| Justices of the peace in Pennsylvania may receive proof of the service of process of ejectment, issuing out of the circuit court of the United States. | 850 |
| Plaintiff may relinquish interest upon his demand, so as to bring it within the jurisdiction of the justice. | 445 |
| No appeal lies from a judgment of the justice, imposing a fine for profane swearing in his presence. | 652 |
| The surety on a bond on appeal from a justice of the peace (Act Ark. 1818, p. 27) is equally subject to judgment with appellant; but a sci. fa. against the surety is irregular where judgment was taken against the principal only. | 280 |
| LANDLORD AND TENANT. | |
| A holding over on an annual rental is evidence of a new demise, for a year. | 462 |
| A covenant in a lease to pay for new erections on the land runs with the land, and an assignment by the lessee of all his right, title, and interest conveys his right to compensation therefor. | 906 |
| The owner of a race track, who lets it for races, and for booths and stands for gambling, and for grossly immoral purposes, cannot recover rent. | 391 |
| A casualty happening against the will, and without the negligence or other default of the tenant, is, as to him, an inevitable casualty. | 283 1232 |
| A re-entry and reletting by the landlord for breach of covenants terminates the tenancy, and the landlord cannot recover for the loss sustained by reletting at a lower rent. | 584 |
| Goods in the officer's hands under a distress for rent are liable to attachment, at the suit of the same landlord, for the rent not yet due. | 6 |
| Upon the plea of no rent arrear in replevin, the whole burden of proof is on the party pleading it. | 892 |
| LIBEL AND SLANDER. | |
| Facts in justification stated in plaintiff's testimony are available to defendant, though he failed to plead them. | 309 |
| License. | |
| See “Patents.” | |
| LIENS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Maritime Liens”; “Mechanics' Liens”; “Shipping.” | |
| Hauling quartz to a quartz mill is “performing labor for carrying on the mill” within St. Nev. 1869, p. 61. | 487 |
| The lien is acquired by the performance of the work, and not by filing the notice, etc. | 487 |
| LIMITATION OF ACTIONS. | |
| See, also, “Adverse Possession”; “Ejectment”; “Equity.” | |
| An amendment asserting a new title will be considered, as regards the statute of limitations, as a new bill. | 424 |
| The exception in Act Or. Dec. 16, 1853, in favor of persons out of the state when the cause of action accrued, held to apply as well to persons who are never in the state as to those who were temporarily absent. | 258 |
| MANDAMUS. | |
| The writ of mandamus is an original writ, and incident to original jurisdiction; and the superior court of the territory of Arkansas, which, under Act Oct. 22, 1828, is an appellate court only, has no power to issue it. | 698 |
| MARINE INSURANCE. | |
| See, also, “Average.” | |
| The contract—Generally. | |
| A policy of insurance will be reformed so as to conform to the order or agreement under which it was executed. | 309 |
| —Interpretation. | |
| In the case of contradiction, the written words in a policy will control the printed ones. | 34 |
| The printed words insuring against loss of the goods, “or any part thereof,” do not control the printed words in the memorandum clause, “Free from average, unless general.”. | 34 |
| An insurance on boxes of lemons held a single contract of insurance on the entire number, and not an insurance against the loss of any portion less than the whole, though the lemons were valued at a certain sum per box. | 34, 34 |
| Representations: Concealment. | |
| A misrepresentation as to the size and age of the vessel, though material to the risk, is no defense to an action upon a valued policy. | *284 |
| A representation as to the destination of the ship, if true at the time, and not fraudulently made, does not avoid the policy, although the destination be afterwards changed. | 779 |
| Where the policy authorizes the vessel to stop at a particular port, the assured need not disclose that the vessel will call there. | 779 |
| The risk. | |
| A policy without warranty of neutrality covers belligerent risks. | 284 |
| A loss by embezzlement of the crew held not within the term of the policy. | 117 |
| There can be no recovery where stranding was due to want of care or skill of the master, or where, after the stranding, he failed to use all reasonable means to save the vessel. | 741 |
| Total loss. | |
| When the loss is total under a policy insuring freight on a cargo of jerked beef, part of which arrives at a port of distress, and is there sold to prevent further loss. | 821 |
| Insurers are not bound by a sale by the master as under a necessity, unless the circumstances were such as to authorize an abandonment. | 706 |
| A vessel, meeting with disasters, put into a port of distress, where her repairs exceeded half her value, and a bottomry bond was given for the amount. Her owner, having no information, abandoned just before her safe arrival. The vessel was sold under the bottomry bond. Held, that the loss was not total. | 876 |
| The insurer, in such case, is entitled to have the usual deduction on the repairs, of one-third new for old. | 876 |
| In an insurance on “cargo,” composed principally of lemons and oranges, where the underwriter is warranted free from particular average on “fruit,” he is not liable where all the oranges are lost, and the lemons arrive safely. | 876 |
| Abandonment. | |
| There is no right to abandon under a valued policy when the estimates of the repairs do not exceed one-half the value. | 706 |
| The mere stranding of a ship on a bar will not justify her abandonment, until the master and crew have used their best exertions to get her off. | 741 |
| A seizure of the vessel by a privateer, and a prohibition to carry the cargo to the port of destination, held a complete destruction of the voyage, authorizing an abandonment of the cargo. | 1047 |
| The sale of the cargo by the supercargo, where he acted for the interest of all concerned, held proper, and effectual to convert a partial into a total loss. | 1047 |
| A vessel captured and detained until she should give security that the cargo will not be carried to the port of destination cannot be abandoned as a total loss. | 1047 |
| A refusal to give a deed of cession of the cargo unless the company would accept the abandonment of the vessel, insured in another policy, will not vacate the abandonment of the cargo. | 1047 |
| In case of abandonment the insurer is entitled to all the proceeds of the thing abandoned, and to all the profits arising from the investment thereof. | 1047 |
| Actions. | |
| Upon a valued policy, by which “A., on account of himself and B.,” caused a vessel to be insured, A. may alone maintain action, and recover the whole amount insured. | 741 |
| It is no defense to an action of covenant on a policy that the premium has been perpetually enjoined. | 284 1233 |
| In an action by an agent on a policy procured by him for the benefit of whom it concerns, defendant cannot set off debts due from the agent in his own right. | 1009 |
| The provision that all sums due to the company from “the insured” shall be deducted from the loss held to apply to the person for whose benefit the insurance was made, and not the agent who procured it. | 1009 |
| The actual cost of repairs, at their true value, and not as estimated in a depreciated currency, will determine the liabilities of the insurer. | 876 |
| Maritime Law. | |
| See “Admiralty.” | |
| MARITIME LIENS. | |
| See, also, “Admiralty”; “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Demurrage”; “Salvage”; “Seamen”; “Shipping.” | |
| The right to a lien. | |
| A shipbuilder may make a valid contract hypothecating his interest in the vessel before he commences building. | 860 |
| A floating elevator used in the harbor of New York, though without motive power or capacity for cargo, held a vessel subject to a maritime lien. | 93 |
| The services of divers and wreckers on board of a seagoing vessel, are maritime, and they have a lien upon the vessel therefor. | 136 |
| Money furnished to a vessel is not a lien, unless furnished to pay claims which would themselves be liens. | 446 |
| Either the owner or the master of a ship may bind her, by a direct hypothecation, for repairs or supplies made or furnished in a foreign port, although a note or other obligation is given for the demand. | 142 |
| There is no lien by the general maritime law for materials or supplies furnished a vessel in the home port. | 155 |
| The law of the place governs in determining whether a lien exists for supplies furnished in the home port. | 142 |
| The foreign or domestic character of a vessel is determined by the residence of her owners, and not her port of enrollment. | 155, 168 |
| Charterers navigating and having exclusive control of the vessel are to be deemed the owners pro hac vice. | 155, 168 |
| Premiums of insurance are a lien. | 1178 |
| Priority and enforcement. | |
| Seamen's wages take precedence of an hypothecation for supplies. | 142 |
| Supply liens under a local law belong to the same class as supply liens under the general maritime law, and will share with them. | 1178 |
| The lien under the state law of a material man, for repairs, has priority over that of a mortgagee under a prior mortgage duly recorded. | 110, 1178 |
| A mortgage will be paid after lien claims, and before general creditors | 1178 |
| Insurance premiums on policies issued prior to a mortgage on the vessel will be preferred to it, but those on later policies will be postponed. | 1178 |
| The lien created by the hypothecation of a vessel to be built for advances, held, should be postponed to those of material men and laborers. | 860 |
| Nor is the hypothecary creditor subrogated to their privilege merely by paying their claims on orders drawn by the builder. | 860 |
| All the privileged creditors may unite in one libel, or, if the libel is filed by one, the others may be made parties by petition. | 860 |
| An hypothecation of vessel by way of a mortgage, for supplies furnished in a foreign port, may be enforced in rem. | 142 |
| Waiver: Discharge: Extinguishment. | |
| The taking of notes or a deed of trust for the debts does not waive the lien. | 1178 |
| The lien created by an hypothecation by way of a mortgage for supplies in a foreign port is not lost by taking other security for the claim. | 142 |
| Creditors of vessels on the Great Lakes must enforce their liens, as against bona fide purchasers without notice, during the current season of navigation, or at the commencement of the next season. | 8 |
| The statement of the seller that there were some small claims against the vessel, which he would pay, held not sufficient to affect the purchaser with knowledge of any particular claim. | 8 |
| The taking of a mortgage upon another vessel to indemnify the purchaser against claims upon the vessel purchased does not operate to extend the time within which creditors should enforce their claims. | 8 |
| Nor can mere notice of the existence of a certain claim affect his rights, unless such notice be had at the time of purchase or of payment. | 8 |
| A lien accruing in August, 1873, against a vessel on the Great Lakes, held waived, as against one who purchased it in January, 1874, where the libel was not filed until September, 1874. | 8 |
| The lien for supplies sold the charterer upon the credit of the vessel is not discharged by the bankruptcy of the charterer, and the composition accepted, though the material man voted to accept the composition. | 446 |
| A general maritime lien cannot be divested by a sale under judicial proceedings in a state court, under the state laws. | 155 |
| A sale in a proceeding in rem in admiralty will discharge maritime liens, whether general or statutory, in whatever jurisdiction it may be decreed. | 155 |
| Liens under state laws. | |
| A lien for repairs and supplies given by the local law may be enforced in admiralty. | 93, 860, 1195 |
| The remedy for the enforcement of a lien under the local law for supplies in the home port (Code Tenn. §§ 3550, 3562), whether valid or invalid, will not defeat the lien, or the jurisdiction of the admiralty court to enforce it. | 1178 |
| The lien given by Code Tenn. § 1991, attaches to all contracts for supplies, whether credit was given to the vessel or owner, and continues for 90 days. | 1178 |
| An agreement to give a time note for the last installment of the contract price of repairs to a vessel, not complied with, will not displace the lien under 2 Rev. St. N. Y. 493, §§ 1, 2. | 135 |
| MARRIAGE. | |
| See, also, “Husband and Wife.” | |
| Oregon and California laws as to the requisites of a valid marriage. | 405 |
| Marriage, in Missouri, may be had by the mutual, present consent of two competent persons, made in good faith, and followed by cohabitation. | 315 |
| A contract of marriage, made between citizens of the state, not in accordance with its laws, who purposely go beyond its jurisdiction, and not within that of another state,—as at sea,—is void. | 405 1234 |
| Living together as man and wife, in exclusive cohabitation, long continued, although evidence of a previous marriage, cannot make the parties man and wife. | 405 |
| Marriage may be proved by general reputation, cohabitation, and the express recognition of the wife in the will of the husband. | 197 |
| A person claiming as wife of another must allege the marriage, with circumstance of time and place. | 405 |
| A state marriage law prohibiting marriage between negroes and white persons is not annulled or affected by the civil-rights bill, or the fourteenth amendment. | 262 |
| MARSHAL. | |
| If the marshal, upon a ca. resp., be amerced debt and costs nisi, the defendant may, on or before the next term, give bail, and exonerate the marshal. | 90 |
| Martial Law. | |
| See “War.” | |
| MASTER AND SERVANT. | |
| See, also, “Apprentice.” | |
| An engineer and brakeman on the same train are fellow servants, and the latter cannot recover from the company for an injury caused by negligence of the former unless he show negligence, or want of reasonable care, in his employment or retention. | 205 |
| MECHANICS' LIENS. | |
| As between mechanics, there is no priority in liens. | 758 |
| In Wisconsin the lien relates back to the commencement of the building, without reference to the time when the work was actually done, or materials furnished. | 758 |
| The mechanic's lien takes precedence of a mortgage given after the commencement of the work. | 758 |
| The lien of a builder under Act Md. 1791, c. 45, § 10, is a remedy in rem only, and not in personam. | 444 |
| Such lien commences with the recording of the contract for building, and does not overreach prior incumbrances. | 444 |
| Merger. | |
| See “Estates.” | |
| MORTGAGES. | |
| See, also, “Bankruptcy”; “Chattel Mortgages”; “Fixtures.” | |
| An absolute deed by a husband to a trustee, in trust for his wife, in consideration of a sum advanced out of her separate estate, will not be deemed a mortgage by reason of the property exceeding in value the amount advanced. | 912 |
| A notarial act recognizing a mortgage held to be itself a mortgage, and its inscription effectual, under the law of Louisiana, to preserve its lien for 10 years. | 922 |
| An indorsement by one joint obligor on a bond of an agreement to pay a greater rate of interest, as an inducement to forebear its collection, does not invalidate the bond, or the lien of a mortgage given to secure it, but the extra interest is not recoverable, as against junior incumbrances. | 1082 |
| In Illinois, bonds and mortgages are placed upon the same footing as bills of exchange. | 783 |
| An assignee of a mortgage, having no notice of an equitable lien on the mortgaged premises, is not affected thereby. | 783 |
| A set-off or mutual credit against the mortgagee is not affected by an assignment of the mortgage. | 783 |
| A payment to the mortgagee, made after assignment of the mortgage, but before the mortgagor has notice of it, is good, against the assignee. | 783 |
| A mortgage assigned in payment of a debt is not held by the assignee subject to the claims of the creditors of the assignor. | 783 |
| Where the mortgagor induced a third person to purchase the mortgage by promising in writing to pay with interest, the whole sum advanced, the assignee of the equity of redemption will be allowed to redeem only by paying what his assignor must have paid. | 326 |
| A consent decree made in a case brought to enjoin the enforcement of a mortgage, in which the mortgage was recognized and its terms changed, held not to have the effect of extinguishing the mortgage, or merging it in the decree. | 922 |
| A statement by the mortgagee that his purpose in foreclosing was to protect the title, and that he would carry out a previous agreement to pay the debt out of the income, will not make an absolute deed obtained on the foreclosure a conditional one. | 728 |
| MUNICIPAL CORPORATIONS. | |
| See, also, “Counties”; “Railroad Companies.” | |
| Powers: Ordinances. | |
| Under the power “to lay and collect taxes upon personal property within the city,” the corporation may require persons bringing slaves within its limit to record them. | 181 |
| A municipal corporation, unless specially restricted, may make an irrevocable dedication of property to the public for the use of a public wharf. | 1199 |
| On property thus dedicated the city may authorize the erection of a grain elevator to facilitate the handling of grain at the wharf. | 1199 |
| An ordinance surrendering to a private person control over a public wharf for a fixed period, for the purpose of erecting a grain elevator, without reserving the right to resume possession and regulate charges, is void, unless specially authorized by law. | 1199 |
| An ordinance of the city and county of San Francisco, requiring that prisoners shall have their hair clipped immediately upon arrival at the jail, held invalid, and no justification to the sheriff acting under it. | 252 |
| Contracts for improvements. | |
| Contract for laying pavements construed, and held that the obtaining of the consent of the property holders was a condition precedent. | *218 |
| A notice to abutting owners, to construct sidewalks in front of their lots, is a condition precedent to the right to contract for such construction under an ordinance authorizing such a contract, where the owners, after notice, have failed to do the work. | 225 |
| An advertisement for bids, directed by the ordinance, authorizing a contract for street improvement, held a condition precedent to the making of a valid contract. | 225 |
| The fact that the contract did not conform to the advertisement for bids did not make it void, provided the contract was within the scope of the ordinance which authorized it. | 225 1235 |
| A contract for filling and grading sidewalks is not void because at the date of the contract no grade for the sidewalks was established. | 220 |
| A contract for sidewalk improvement held not invalidated by the fact that there were no specifications on file at any time as stated in the advertisement for bids for the work. | 225 |
| The fact that there were no specifications will not invalidate the contract for uncertainty, where there was a well-known process of doing the work. | 220 |
| The fact that a contract has been vacated, and a new one adopted in its place, is a good defense to an action on the original contract. | 225 |
| The city cannot avoid a contract for street improvement because it imposes a more rigid condition on the contractor than authorized by the ordinance under which it was made. | 225 |
| Where a contract is established against all charges of fraud, etc., the profits lost by its breach may be recovered, though they are unreasonable. | 225 |
| Bonds. | |
| A municipal corporation has not inherent power to issue negotiable coupon bonds, which shall circulate as commercial paper, and be unimpeachable in the hands of a bona fide holder. | 218 |
| The grant of special powers for the collection of the cost of sidewalk improvements, and to issue bonds for certain other purposes, held an exclusion of the power to issue negotiable coupon bonds to pay for sidewalk improvements. | 218 |
| Const. Mo. art. 11, § 14, requiring a two-thirds vote to authorize subscription to railroad stock, held not to apply to railroad charters existing at its adoption. | 845 |
| Actions. | |
| Plaintiff must give notice to the inhabitants of the town before suing its treasurer for damages caused by defective highway, under R. I. Dig. 299. | 339 |
| The omission of a city to put a street in condition to permit of its use for public travel is not such negligence as will support an action for personal injuries. | 834 |
| Negligence. | |
| See “Admiralty”; “Collision”; “Damages”; “Death by Wrongful Act”; “Master and Servant.” | |
| Negotiable Instruments. | |
| See “Bills, Notes, and Checks”; “Bills of Lading.” | |
| NEW TRIAL. | |
| The rules under which the court will exercise its power to set aside a verdict on the ground that it is against the weight of evidence. | 927 |
| The separation of the jury after the cause is submitted, and before the verdict is agreed upon, is ground for setting it aside. | 636 |
| A new trial will be granted where the jury, without defendant's consent, take plaintiffs account with them to the jury room. | 1087 |
| Evidence of declaration of jurors that they assessed the damages by taking the average of the sums put down by each juror, respectively, is inadmissible. | 390 |
| Where a new trial is granted on payment of costs, and the costs are not paid by the second day of the following term, and judgment is entered, the court may set aside the judgment, and permit the cause to be tried. | 663 |
| NUISANCE. | |
| A private person can have relief in equity against public nuisances only in virtue of special and individual injuries, and where the remedy at law is inadequate. | 1199 |
| OFFICE AND OFFICER. | |
| See, also, “Judge”; “Justice of the Peace”; “Marshal.” | |
| Where an act is directed to be performed by the county commissioners, as the constituted authority of the county, a majority may act. | 637 |
| An officer acting in good faith under a warrant purporting to come from his superior, whom he is bound to obey, is acting under “color of authority,” though the superior has transgressed his power, and the warrant be irregular. | 285 |
| A public agent of the government, contracting for the use of government, is not personally liable, although the contract be under his seal. | 283 |
| PARTIES. | |
| All persons in interest must be made parties to proceedings in equity before a decree. | 746 |
| Where the interest of one is involved in that of another, and the former possesses the legal right, so that the interest may be asserted in his name, it is not always necessary to bring both parties before the court. | 504 |
| In a suit against the obligor in a bond paid in Confederate currency to an executor during the Civil War, to cause him to deliver it up and pay it again, the executor is a necessary party. | 738 |
| The omission of mortgagees on a bill in equity in relation to the premises is no cause of abatement of the suit. | 746 |
| Creditors are not necessary or proper parties generally in a bill between partners to wind up the partnership affairs. | 746 |
| The defect of joining as a party plaintiff one who has no interest in the suit may be reached by a general demurrer for want of equity. | 279 |
| On the arrest of a vessel the mortgagee may intervene, to protect his interest and contest a forfeiture. | 448 |
| The interest of a person in a suit, arising solely from his agreement to indemnify respondents against the result of the litigation, is not sufficient to give him the right to intervene in the action. | 1155 |
| Where there is a transfer of interest in premises pending a suit in relation thereto, a supplemental bill may be filed by or against the purchaser. | 746 |
| PARTNERSHIP. | |
| See, also, “Bankruptcy.” | |
| The recorder of the city of New York is a judge of the county court, within the contemplation of the New York statute, respecting special partnerships, and the certificate is properly acknowledged before him. | 780 1236 |
| Where the names of all the partners are correctly given in a certificate of special partnership, the use of the words “and Company” in the firm name, as a collective appellation to designate the persons specifically named, does not render a special partner liable as a general partner. | 780 |
| In the absence of fraud and breach of trust, property purchased with partnership funds does not, of necessity, become partnership property, if that is not the intention of the parties. | 746 |
| Where property is necessary for the ordinary operation of the partnership, and be actually so employed, it will be held partnership property, when purchased with partnership funds. | 746 |
| Real estate purchased with partnership funds, and on partnership account, will, in equity, be treated as personal estate, irrespective of the condition of the title. | 746 |
| Real estate will be considered as partnership assets, and impressed with the character of personalty, when losses are to be sustained by the assets of the firm, and profits are credited thereto. | 213 |
| Where the proceeds of a joint adventure are held for the joint account, both parties share the risks which attend them; but, where one party appropriates them to his use, he becomes debtor to the other for his moiety. | 593 |
| The dissolution of a firm by agreement between its members will not affect the rights of its creditors. | 800 |
| Upon a dissolution, each partner has a lien upon the partnership property, both for an indemnity against joint debts, and for his proportion of the surplus; but the creditors have no lien thereon for their debts. | 746 |
| A bond and security given by the continuing partner to the retiring partner, to relieve him from payment of the firm debts and to assume their payment, is not merely an indemnity, but is an obligation to pay, and may be enforced by the creditors. | 459 |
| The acceptance of the note of one partner on a loan of money for the use of the firm will prevent an action against the firm. | 42 |
| Though the lender was ignorant that the loan was for the firm, he cannot sue the firm after recovering judgment on the note. | 42 |
| PATENTS. | |
| Patentability. | |
| The invention of a compound forming a new material is patentable. | 551 |
| The making of an article, of a new material, by an old method, is not patentable. | 551 |
| The application of a known combination to a new object is not patentable. | 603 |
| The application of an old process to produce a new result is not a patentable invention. | 656 |
| The production of an old result by a new process is patentable. | 656 |
| The making in iron of a frame which had before been made in wood held not patentable. | 324 |
| A combination of machinery for cooling meal in the process of converting grain into flour, with machinery for preventing the waste of meal, held patentable. | 47 |
| The placing of two or more letters upon spelling blocks arranged systematically held not a patentable improvement. | 171 |
| No degree of utility is required, but only that the invention shall not be frivolous or dangerous. | 290 |
| A rejected application for a patent is not evidence that the thing described was ever used, nor is such description a patent or a publication, within the statute. | 47 |
| Trials and experiments which led to no practical result, and were abandoned, will not defeat the patent to another. | 240, 242, 246 |
| An invention ending in experiment only, and laid aside as unsuccessful, will not invalidate a patent granted to a subsequent inventor who perfects the invention. | 678 |
| Who may obtain patent. | |
| A perfected invention, if diligently pursued, will date back to the time of the first conception, as against a later conception of another, first perfected. | 120 |
| The person who first makes known the principle of the invention, so that another would be able, from his description, to put it in use, is the first inventor, though he did not put it into practical operation. | 151 |
| Prior public use or sale. | |
| A “public use” means a use in public, as distinguished from a secret use. | 918 |
| A public exhibition of the invention by a person to whom a half interest has been sold is a public use with the consent of the inventor, within the rule | 918 |
| So is a public use for years by others of machines constructed upon substantially the same principle as that of the applicant, of which he might have had knowledge. | 918 |
| The continuity of an application is not necessarily destroyed by the withdrawal of the first application and the filing of a second one so as to render the patent void because of a public use or sale more than two years before the filing of the second application. | 670 |
| The question as to whether the “continuity” of the application is destroyed by the filing of a new application is, in an action at law, one of fact, for the jury. | 670 |
| Prior description or foreign patent. | |
| The foreign patent, to invalidate a domestic patent, must have been granted before the invention here, not merely before the application for a patent. | 663 |
| An English patent takes effect only from the date of its enrollment, and not from the date of the filing of the provisional specification. | 663 |
| Abandonment: Laches. | |
| Two years' delay to file a new application, after the rejection and withdrawal of the first one, caused by the delay of the patent agent, held not an abandonment. | 715 |
| A delay of three years, during which the inventor was engaged in constructing a machine to produce the invented article, held not unreasonable. | 151 |
| Twenty years between the date of the original application and the final grant of the patent, where the application was rejected and repeatedly renewed, will not invalidate the patent. | 635 |
| A reissue is prima facie evidence that there has been no abandonment. | 290 |
| A rejected application, of itself, held no evidence of the existence of a perfected invention at the date it was filed. | 715 |
| Application and issue: Interference. | |
| A commissioner has full authority to examine and adjudicate on the question of abandonment, and to compel the attendance of witnesses for that purpose. (Act March 3, 1839.). | 918 |
| The determination of the patent office as to whether two things are equivalents cannot be limited or restrained by the admissions or denials of the parties. | 1087 |
| The granting of an extension of time for the taking of testimony in an interference case is within the discretion of the commissioner, and no appeal lies from his refusal, except in the case of a plain abuse of discretion. | 492 |
| Appeal from commissioner's decision. | |
| The failure of the patent office to declare an interference when a patentee is seeking a reissue, pending an application by another, is not a decision that the claims are for different inventions. | 120 1237 |
| A patentee cannot appeal from the decision of the commissioner in an interference proceeding, awarded priority of invention to a subsequent applicant, and granting him a patent. | 491 |
| An interested party will not be allowed to assign his interest immediately before the hearing, so as to make him a competent. | 151 |
| Extent of claim. | |
| A patent for an improvement must clearly distinguish the old from the new. | 615 |
| It is immaterial what the claim in the summary is, if its foundation has not been made in the descriptive part of the specification. | 826 |
| A claim for “said manufacture of printing type, made substantially as described,” held a claim for the process, and not for the product. | 811 |
| Equitable relief. | |
| A bill in equity for relief will not lie on the ground that defendant has surreptitiously procured a patent for complainant's invention, for which an application for a patent was pending. | 289 |
| Reissue: Disclaimer. | |
| A reissue can be obtained only for that which was the original and true invention of the patentee, but which he failed to claim or describe in the original claim and specification. | 290 |
| A patent for a combination of old elements may be reissued for a combination of fewer elements than were contained in the combination originally claimed. | *47 |
| The invention must be shown in some part of the patent, specification, drawings, and model, to validate a reissue. | 290 |
| Differences in the claims are consistent with the identity of the thing designed to be patented in both patents; it being one object of the surrender to correct by changing the description or claim, or both. | 1063 |
| The reissue furnishes prima facie evidence that everything necessary to justify the commissioner in granting the reissue had been produced before the grant was made. | 290 |
| A legal presumption arises from the action of the patent office, that the reissue is for the same invention as the original. | 1063 |
| The commissioner, in deciding upon the question whether the invention claimed in the reissue is the same as that intended to be patented under the original application, should receive all legal proof offered. | 1053 |
| The decision of the commissioner is prima facie evidence, and can only be impeached for fraud. | 1053 |
| The prior use of an invention under a defective patent cannot take away the right to a reissue, or authorize its use after the reissue. | 1053 |
| A disclaimer of a part, or a statement that it is old, will not prevent claiming the same in a reissue, if made by inadvertence accident, or mistake. | 1053 |
| A disclaimer limited to the application in which it is made does not prevent the inventor from claiming the same matter in a subsequent application. | 151 |
| Extension: Renewal. | |
| A license to use the patented invention “during the term for which said letters patent are or may be granted,” does not apply to an extended term. | 272, 276 |
| The licensee, under Act July 4, 1836, § 18, may use such patented articles as it has in use when the original term expires, until they are worn out. | 272 |
| Assignment. | |
| An assignment made before the patent is granted is valid. | 1 |
| Licenses. | |
| An assignment of all right and interest under a patent in certain territory, where the patentee reserved the right to sell machines of his own manufacture in such territory, held a mere license. | 1067 |
| The patentee, in such case, may sue to protect his rights without joining the licensee | 1067 |
| A license to use a patented brake on any and all cars belonging to” the licensed company covers the use of brakes on trucks and running gear belonging to the company, although the superstructure belongs to another. | 272 |
| A railroad company running its cars over the road of another under a permission to that effect cannot be considered as operating the latter, within the meaning of a license granting the right to use a patented invention. | 272 |
| Infringement—What constitutes. | |
| A machine which operates, or may operate, if the owner is disposed to use it so in the manner pointed out by the patent, is an infringement. | 324 |
| A patent for a combination and an entire process is not infringed by the use of a part of the process and combination. | 656 |
| A patent for a combination consisting of several distinct inventions, which may be used separately, is not infringed by the use of one of such parts. | 826 |
| —Who liable. | |
| A mere licensor under letters patent, who did not derive any profit from an infringing machine constructed thereunder by his licensee, is not liable. | 1053 |
| It is no justification that respondent constructed and used his machine before complainant took out his patent, where he copied it from complainant's invention. | 609 |
| It is no justification of the infringement of a reissued patent that the infringer had used the invention with impunity before the patent was amended. | 689 |
| —Remedy, generally. | |
| Either a suit in equity or an action at law may be maintained after the patent has expired, where the infringement took place during the term of the patent. | 725 |
| —Preliminary injunction. | |
| Where there has been no trial of the right at law, plaintiff must show a long-continued, exclusive possession, and exercise of the right granted, to show his right to the injunction. | 269, 609 |
| Where the patent is of long standing, and the inventor has exclusive possession under it, the writ will be granted without a trial at law. | 689 |
| Notwithstanding complainant's right to an injunction is clear, defendant will be allowed to continue the use of the patented invention, where plaintiff exercises his monopoly by selling licenses, and defendant is willing to pay a reasonable license fee. | 276 |
| The fact that plaintiff grants licenses at a fixed sum, and that defendant is a mere user, is not alone sufficient reason to refuse the writ. | 670 |
| Where the validity of a patent is fully established, and its infringement is clear, the patentee has a right to protection by injunction, although great injury may thereby be caused to the infringer. | 276 |
| Unless the balance of inconvenience be clearly on the side of the complainant, or if the case be at all doubtful, an injunction will not be granted against a mere user | 670 |
| Where plaintiff would suffer little, and defendant great, inconvenience and expense an injunction was denied. | 269 |
| The fact that defendant is suffering serious injury from the stoppage of his manufactory by an injunction is no reason for departure from the settled rules of equity practice in patent cases. | 1067 1238 |
| A delay of 18 months after knowledge of infringement is good ground for refusing an injunction. | 269 |
| Where the question of the right to the injunction depends only on the interpretation of a license, the question will be settled on motion for the injunction. | 276 |
| —Procedure. | |
| A suit for an infringement after the making of an assignment must be brought by the assignee. | 1 |
| The licensee of a territorial exclusive right to use, rent, and vend a patented article cannot maintain a suit against persons using the article in violation of the license. | 182 |
| The next of kin of a patentee cannot be united as parties plaintiff with the personal representative in a bill to enjoin infringement and for an accounting. | 279 |
| Upon the death of the patentee the personal representative at his domicile may sue for infringement in any federal court having jurisdiction, without taking out letters in the state in which the suit is brought. | 279 |
| Defendant cannot avail himself of the defense that he has not marked or labeled the infringing machines as patented. | 44 |
| Grounds upon which presumptions of novelty of a patented invention may arise. | 1067 |
| The defense of invention by and patent to a third person may be met by producing the application of and the patent to such third person, with his accompanying or contemporaneous declarations. | 240 |
| It is no ground of demurrer to a bill for infringement of two patents by the use of the devices in one apparatus that the bill does not allege that the devices were used conjointly, or connected together. | 527 |
| A reissue to defendant of later date than plaintiff's patent, but of an original of earlier date, will control in a suit for infringement. | 598 |
| The decision of another circuit on the same points and the same state of proofs is entitled to great consideration. | 240 |
| A patentee who claims both old and new things must disclaim what is old before he is entitled to recover. | 609 |
| The reissue, after the first hearing, of a patent prior to plaintiff's, which was in evidence, is no ground for granting a rehearing. | 246 |
| The want of proper expert testimony is no ground for granting a rehearing, where no sufficient excuse is shown for not applying, prior to the first hearing, for opportunity to introduce the same. | 246 |
| —Evidence. | |
| Machines not set up in the answer cannot be introduced in evidence or considered upon final hearing. | 689 |
| As bearing on the art the testimony of persons skilled in the business that no such improvement as that covered by the patent had previously come to their knowledge is inadmissible. | 240 |
| Proofs furnished by practical operation and experiment are entitled to greater weight than the opinion of an expert | 811 |
| A patent can only be overthrown, on the question of novelty, by clear and satisfactory proof. | 47 |
| —Bond for damages. | |
| A patent having but six months to run, defendants were allowed to give bond to account, in lieu of a preliminary injunction. | 663 |
| Defendant will be allowed co give bond with security to account, etc., when his machine embraces improvements which could not be used without using the original invention of the patentee, upon which they were ingrafted. | 663 |
| —Accounting; Damages. | |
| The saving to defendant made directly by using the patented device, and not that which he might have made if he had used any or all of various other devices, held the proper measure of damages. | 44 |
| Interest on the cost of a device, and the cost of power, are to be allowed as deductions from profits only when it is shown they have been paid or incurred as debts. | 44 |
| The whole profits may be awarded against defendants, though made while they were using the patented invention in conjunction with a person not a defendant. | 44 |
| The general expenses of conducting defendant's entire business, held, should be divided in the proportion that the amount of sales of the infringing device bore to the sales in the entire business. | 244 |
| No part of the expenses of the litigation should be assessed as damages, nor should interest be added to the profits. | 325 |
| The court cannot treble the amount of profits under the authority conferred by Rev. St. § 4921, to treble the damages. | 325 |
| Various particular inventions and patents. | |
| Bottle stopper. No. 48,300, for improvement, held not infringed. | 118 |
| Door knobs. No. 4,197, for a porcelain knob, held invalid. | 551 |
| Flour. Reissue No. 4,712, for improvement in cooling and drying meal, held valid. | *47 |
| Grain separators. Reissue No. 4,793, for improvement, held valid and infringed. | 715 |
| Horse rakes. Reissues Nos. 1.912–1,915, for improvement, held valid and infringed. | 290 |
| Millstones. Hoyt's invention of improvement by uniting segments by molten metal, held patentable. | 755 |
| Organs. Reissue No. 3,665, for tremolo attachment, held valid and infringed. | 240, 242 |
| Paper collars, No. 45,998 (reissued, No. 2,034), for improvement in turn-down enameled paper dollars, held valid and infringed. | 299, 305 |
| Patent rollers Hutchinson's improvement, held patentable. | 1087 |
| Printer's galleys. No. 60,151 (reissued, No. 6,326), for improvement, held valid and infringed. | 288 |
| Reaping machine. Reissues Nos. 449,450, 451, 742, 917, for improvements, held valid and infringed. | 1053, 1063 |
| Sash lock. Reissue No. 6,693, for improvement, as construed, held not infringed. | 499 |
| Seed sowers. Nos. 88,971, 91,144, for machines for sowing seed, held valid and infringed. | 324 |
| Sewing machines. No. 4,750, to Howe, for improvement, held valid and infringed | 663, 678, 689 |
| Spelling blocks. No. 59,603, for improvement in cubical blocks, held not infringed. | 171 |
| Topsail yard. No. 11,125, for “extra yards for topsails,” held valid and infringed. | 725 |
| Truss. Patent to Hull, held valid and infringed. | 864 |
| Type. No. 55,299, for improvement in the construction and manufacture of printing type, held not infringed. | 811 |
| Water-pumping machinery. Holly's patent, No. 87,413 (reissue No. 5,132), for a device for supplying city with water, held valid and infringed. | 385 |
| PAYMENT. | |
| See, also, “Bills, Notes, and Checks.” | |
| A bank held a note for collection, and, before it was due, received a deposit of money from one of the makers to pay it. Held, Uiat the note remained unpaid, where the bank failed on the day on which it fell due, where the money was not actually applied to its payment. | 851 1239 |
| Payment in Confederate bonds of a balance of account with the bank of North Carolina, accepted by the depositor, held valid. | 341 |
| An executor who receives payment during the Civil War, in Confederate money, of a bond given before the war, if liable at all, is only liable for the value of the Confederate currency; as of that date. | 738 |
| New York creditors were given notes payable in Illinois for collection, to apply the proceeds in payment of their debts Held, that Illinois currency received in Payment thereof was to be applied only at its value in New York. | 687 |
| Under a stipulation for payment in New York of an amount expressed in English money, “at the current rate of exchange” for bills on London, the amount payable is not calculated in gold, but in currency, at the current rate of bills on London, with interest at the New York rate. | 1052 |
| A presumption of payment, arising from lapse of time, may be rebutted by accounting for the time, and showing the improbability of payment. | 504 |
| A note given by an agent for goods sold to enable the seller to raise money at the bank, where no settlement is made, and the account is not receipted, will not be presumed to be in payment. | 808 |
| The words, “received in full payment” or “satisfaction,” do not necessarily mean absolute satisfaction, when a note or other security is taken. | 1020 |
| The purchaser of a vessel, who has paid expenses of a previous voyage upon the master's order, under a mistaken expectation that he was to be reimbursed out or the freight, cannot recover them from the master. | 282 |
| PILOTS. | |
| See, also, “Admiralty.” | |
| The limits of pilot ground are not fixed by any rule of law, but depend upon usage or custom; and that usage is not settled and uniform, but varies according to circumstances. | 483 |
| Act N. Y. 1865, giving half pilotage on a tender and refusal of services, held applicable to a tender made as far east as Sand's Point, to a vessel bound to New York. | 538 |
| PLEADING AT LAW. | |
| See, also, “Abatement and Revival.” | |
| Plaintiff need not set out the facts or process by which the liability of defendants is to be established under the decree. | 268 |
| A declaration on a note averred that it was presented to the bank “when due, to wit, July 23, 1841.” Held, that the words “to wit,” etc., were surplusage. | 1142 |
| If a party partially states a deed, which is defective, or contains matter qualifying the part stated, the defendant may crave oyer of the deed, and set forth the whole, and then demur. | 268 |
| An allegation in a plea of abatement that all of defendants in the action are not citizens of the state is bad on demurrer, for uncertainty. | 194 |
| In an action ex delicto, the objection that the court has no jurisdiction of a certain defendant is personal to such defendant. | 194 |
| Defendant allowed a repleader where a mistake is made in a plea of puis darrein continuance through inadvertence of his attorney. | 90 |
| A replication to a plea of discharge in bankruptcy is defective where it does not state that the debt sued for had been placed on the schedule. | 459 |
| The plea of non est factum in a suit on a contract alleged to have been made by defendant city, by its mayor, is properly sworn to by members of the common council on information and belief. | 225 |
| An agreement that an answer may be sworn to in France, before any person authorized to administer oaths by the laws of France, is not complied with where the answer is sworn to before the American consul. | 23 |
| On an issue joined on a plea of want of title in an action of a bond expressed to be given for the purchase money of land, plaintiff has the burden of showing title. | 550 |
| A variance between the writ and declaration can only be taken advantage of by plea in abatement or special demurrer. | 625 |
| PLEADING IN ADMIRALTY. | |
| See, also, “Maritime Liens”; “Salvage”; “Seamen.” | |
| A libel sufficient under the general maritime law is sufficient in cases arising upon the Lakes, and no averment is required to bring it within the act of 1845. | 1177 |
| It is unnecessary to aver that the vessel in question is engaged in navigation, or capable of being so employed. | 1177 |
| The answer need not be overcome by the testimony of two witnesses, as in equity cases. | 1089 |
| How far the answer is considered evidence. Extended opinion and note by Ware, J. | 1089 |
| An allegation founded on an hypothecation of a vessel implied by law for money advanced for repairs, may be united with an allegation on a bottomry bond given for the same consideration. | 951 |
| Both the libel or the claim and the answer must be verified by the party. | 1089 |
| Permission to amend a libel to enforce a general admiralty lien for supplies, so as to claim a lien under the local statutes, granted on condition that libelant's lien should be postponed to that of others. | 819 |
| PLEADING IN EQUITY. | |
| Several causes of action may be joined in a single bill, but not when the effect would be to embarrass the defendant, or introduce unnecessary confusion. | 527 |
| A demurrer to a bill for want of equity cannot be sustained, unless no discovery or proof properly called for by, or founded on, the allegations of the bill, would make the subject-matter of the suit a proper case for equitable interference. | 543 |
| On demurrer, multifariousness of bill can only be taken advantage of by the party suffering therefrom. | 150 |
| An admission, in an answer to a bill in equity, that a deed bears a certain date, does not estop the defendant from showing the deed was not then delivered, and was fraudulently antedated. | 326 |
| An answer to facts charged in the bill is to be taken as true until the contrary is clearly established. | 566 |
| A bill whose allegations are denied by the answer must be supported by at least the testimony of one witness and corroborating circumstances. | 126, 834 |
| Upon a hearing on an issue on a plea in bar, no question arises as to its sufficiency in point of law. It is only necessary to be proved in point of fact. | 834 |
| Query, how far the court will decree upon proof by a single witness, where the answer puts the matter in issue, although only by a declaration of ignorance, etc., by administrators. | 933 1240 |
| The defendant has a right to make his answer under oath, although an answer under oath is waived by the bill. | 322 |
| The court may allow an amendment of the bill after deciding against the bill on demurrer. | 933 |
| PLEDGE. | |
| One to whom the note of a third person is loaned is liable where the amount is lost through his failure to use reasonable diligence to collect it. | 126 |
| POWERS. | |
| A power coupled with an interest does not expire with the death of the person creating it. | 913 |
| Where a naked power is necessarily such as can be exercised only after the death of the grantor, it does not expire with his death. | 913 |
| A naked power which expires with the death of the party creating it is such as requires the power to be executed in the name and as the act of the grantor. | 913 |
| A power of attorney given as collateral security is irrevocable by the grantor, but it dies with him. | 913 |
| PRACTICE AT LAW. | |
| A plea of the general issue, tendered in court after a continuance, should be received. | 142 |
| Where the summons is served 10 days before the return day, plaintiff, on filing his declarations, may enter up judgment at the rules by nihil dicit. | 204 |
| Where a motion made but not decided was not continued to the next term, held that a continuance should be entered nune pro tune, but that the opponent would not be required to take it up at that term. | 1009 |
| After defendant in ejectment has appeared and entered into the common rule he may rule plaintiff to proceed to trial or be non pros'd, although the declaration has not been changed so as to bring in the real defendant. | 1038 |
| Plaintiff must enter a nolle prosequi as to one of the joint defendants, against whom there is a stay of proceedings pending action upon his discharge in bankruptcy, before he can proceed against the others. | 206 |
| The dismission of a suit agreed does not amount to a retraxit, and is no bar to a future suit for the same cause of action. | 304 |
| The penalty of a nonsuit or default is inflicted for failure to produce a paper as ordered by the court. | 1146 |
| A prima facie case of the existence of the paper and its materiality must be made out, when an order nisi will be granted, leaving the opposite party to produce or show cause at the trial. | 1146 |
| The fact that a bill of discovery has been filed and answered, where the papers were not produced, is no bar. | 1146 |
| Before the jury are sworn and the trial commenced, a party cannot call for a paper which his opponent has received notice to produce on the trial. | 1123 |
| Defendant in ejectment need not show title to the land before he can call upon plaintiff to produce title papers to defeat his title. (Reversing 1123.). | 1129 |
| A suggestion that the opposite party is in possession of the paper which the other has given him notice to produce will put the burden upon the former of producing it, or showing by affidavit that he is unable to do so. | 1123 |
| A paper produced by one party on notice from the other does not become evidence unless, from its legal character, it is entitled to admission as such. | 1129 |
| On a plea in abatement, if the jury find against the plea, they ought to assess the damages on the plaintiffs declaration. If this is omitted, a venire de novo must be awarded. | 356 |
| PRACTICE IN ADMIRALTY. | |
| See, also, “Admiralty.” | |
| A vessel discharged from arrest upon giving the required bond or stipulation is forever discharged from the lien which was the foundation of the action, and the court has no jurisdiction over her for the same cause of action. | 448 |
| The principal and surety on the bond or stipulation given upon an arrest in personam stand upon the same footing. | 403 |
| A special notice to the surety, of application for execution against him, is not necessary. | 483 |
| In the case of three litigations against a vessel or its owners, involving title to the same property, brought in different courts the proceedings in one were stayed unless libelant should elect to stay proceedings in the others. | 1155 |
| The mere fact that plaintiff has discontinued his action is no bar to a subsequent suit. | 419 |
| A court of admiralty has no general power—at least, after expiration of the term—to set aside a final decree on the ground of oversight, inadvertence, or mistake. | 1170 |
| The 10 days allowed by rule 40 for setting aside a decree are restrictive, and a motion made after such time cannot be entertained. | 1170 |
| An objection to a clerk's report on a reference to ascertain the amount of damages cannot be taken by argument, but must be by formal exception. | 662 |
| A party cannot, by exceptions to the report of a commissioner to compute damages, raise a question on the merits which was previously decided by the court. | 608 |
| The conclusion of the commissioner upon a disputed fact will be accepted by the court, unless there is a palpable preponderance of evidence against it. | 403 |
| Publication of notice of sale in case of condemnation of vessel. | 528 |
| An officer who, in executing admiralty process in rem, does not take and hold actual and manifest possession, cannot charge custody fees, although he may be liable for the safe-keeping of the vessel. | 112 |
| PRACTICE IN EQUITY. | |
| Where a party not within the jurisdiction files his answer, disclaiming all interest, the bill may be dismissed as to him and continued as to the others. | 197 |
| The demurrer to a cross bill having been sustained, defendant's motion to stay proceedings under the original bill will be denied. | 926 |
| No enlargement of the time for taking testimony in equity before the master can be made unless notice of the application be given to the opposite party. | 926 |
| The failure of counsel to properly apply the testimony or to give it due weight, in argument, is not ground for a rehearing. | 957 |
| An application for a rehearing must state some reason which would constitute good ground for a new trial at common law. | 957 1241 |
| PRINCIPAL AND AGENT. | |
| See, also, “Master and Servant”; “Powers.” | |
| A person acting under a power of attorney from the partner of a deceased consignee of goods held to be agent of such partner, and not of the shippers, and liable for the proceeds of the goods turned over to such partner without the approval of the shippers. | 429 |
| Where an agent or factor keeps the proceeds of his principal's goods separate, the principal may claim the same, or the profits thereon, as against the agent or his general creditors. | 593 |
| The principal is chargeable with the knowledge of his agent. | 566 |
| The principal is liable for the conduct of his agent while acting in the scope of his employment, though contrary to his orders. | 462 |
| The owners of land, who give to another a bond to convey to him, or to give him all over a certain price, if he should make a sale, are bound by his representations to a purchaser procured by him. | 566 |
| PRINCIPAL AND SURETY. | |
| See, also, “Bail.” | |
| A surety upon a bond is not discharged by a mere delay to demand payment after it becomes due, unaccompanied by fraud or an express agreement with the principal to allow the delay. | 948 |
| Sureties on the bond of a collection agent held released to the extent of a balance due shown on a fraudulent account rendered by the collector, where the obligee promised to surrender the bond on execution of a deed to secure the balance shown thereon, but are liable for the amount fraudulently concealed. | 501 |
| The principle that the creditor loses recourse against security, where his debtor, to whom indulgence is extended, becomes insolvent, does not apply in favor of a mere donee. | 513 |
| PRIZE. | |
| The district courts of the United States have exclusive jurisdiction in prize cases, without restriction to cases of seizures within their territorial dimensions, or on the high seas. | 95 |
| But they will not assume jurisdiction of prize matters of foreign nations occurring upon the high seas flagrante bello. | 33 |
| Persons abiding within the authority of citizens levying war against the government become enemies, because of their residence, without regard to their private sentiments, or the locality of their property. | 95 |
| An American vessel trading at a neutral port is not subject to capture by an American privateer because carrying a pass or license from the enemy, though it is intended to remit the proceeds of the cargo to the enemy country. | 469 |
| The acts of July 13, 1861, and August 6, 1861, did not affect prior proceedings of the president in authorizing acts of war, in establishing blockades, and making captures of enemy property. | 95 |
| A notice of a blockade, to the officials of a neutral government, is a sufficient notice of it to the subject of such government. | 95 |
| The act of egress is as culpable as the act of ingress, when done in fraud of a blockade. | 95 |
| On notice of a blockade, a neutral vessel may withdraw from the port, with all the cargo honestly laden on board before the commencement of the blockade. | 95 |
| The acts of a master in breach of a blockade affect the cargo equally With the vessel, if the cargo is laden on board after the blockade has become effective as to the vessel. | 95 |
| A warning on the register of a vessel is not necessary to establish notice of a blockade, where actual notice of it to the master or owner is satisfactorily made out otherwise. | 95 |
| An American ship captured by a French privateer, with a neutral cargo on board, and brought into an American port for condemnation, will be restored, and damages awarded against her captors. | 348 |
| Where the cargo captured is in a perishable condition, it will be ordered to be sold by the circuit court pending an appeal to the supreme court. | 108 |
| Of the rule for apportionment of costs among the several claimants in prize causes. | 210 |
| Vessel and cargo condemned as enemy property, and for a violation of the blockade of Charleston. | 70 |
| PUBLIC LANDS. | |
| Pennsylvania proprietary lands. | |
| One person may take out any number of warrants in the names of different persons, who will be considered trustees for him. | 840 |
| Uncertainty of description in the warrant is no objection where the land is surveyed before an adverse title accrues to a third person. | 840 |
| Where the outlines of a tract are legally surveyed, a third person cannot question the survey of one of the inside warrants. | 840 |
| A located warrant may be lifted and relocated on another tract, if no person has acquired the title in the meantime. | 840 |
| As to the meaning of “a persistence in his endeavors to make such actual settlement,” as used in Act Pa. 1792. | 840, 847 |
| A warrant taken out for certain land, which is subsequently found to have been previously taken up, may be laid upon adjoining lands. | 848 |
| Upon a forfeiture for noncompliance with the terms of the warrant no third person can enter on the land. | 848 |
| The words used in an entry should be construed in reference to their proper signification, rather than to their grammatical arrangement. | 424 |
| The contract for liberty land did not constitute the purchasers tenants in common. | 1024 |
| Persons entitled to liberty lands were bound to have them laid off by surveyors regularly appointed, the same as other lands. | 1024 |
| The proprietary is neither an agent nor a, trustee for the first purchasers. | 1024 |
| The proprietary, by his promise to first purchasers, did not deprive himself of the right to lay off the manor of Springettsbury, north of the city of Philadelphia. | 1024 |
| A warrant without a survey, made under a legally authorized surveyor, does not give a right of entry to support an ejectment. | 1024 |
| A warrant holder for lands in “the new purchase” loses his right of possession by failure to comply with the requisites of the law. | 848 |
| A patent for land is only prima facie evidence of title, and proof of the omission to take the preliminary steps for vesting title will defeat it. | 840 |
| The rights of settlers and warrant holders in cases of abandonment, improvement, etc., and delay to protect such title, stated. | 430 |
| Sufficiency of proof in ejectment. | 1122 |
| A warrant and survey of lands within the “new purchase,” without a compliance with the terms thereof enjoining a settlement on the land, is not sufficient to sustain ejectment. | 840 1242 |
| A variance of 40 poles on a straight line, in running a two-mile line, held not unreasonable. | 424 |
| QUIETING TITLE. | |
| Equity will enjoin a sale for taxes when the assessment is void, and the deed given in pursuance of the sale would cast a cloud upon the owner's title. | 974 |
| A tax deed in California is prima facie evidence of the regularity of the tax proceedings, and therefore prima facie evidence of title, and, if executed in pursuance of a void sale, casts a cloud upon the title. | 974 |
| A deed fair upon its face is not objectionable, as a colorable conveyance to give jurisdiction, unless proof be shown aliunde. | 551 |
| RAILROAD COMPANIES. | |
| See, also, “Carriers.” | |
| Construction of the land grant to the “Burlington and Missouri River Railroad Company. | 893 |
| Taxability of such lands. | 893 |
| Under the reservations in the constitution and statutes of the state of New York, held that the charter of the New York & Oswego Midland Railroad Company may be amended by repealing a grant of immunity from taxation. | 75 |
| The St. Paul & Pacific Railroad Company is not in law the same corporation as the Minnesota & Pacific Railroad Company, and cannot be sued at law on the bonds and coupons made by the latter. | 494 |
| The submission to a vote of the people of the decision of the grand jury in favor of a subscription by the county to railroad stock, authorized to be made upon the recommendation of a grand jury, will not affect the validity of the subscription. | 637 |
| The omission of a condition in county aid bonds, where the liability would not be changed if it had been inserted, will not prevent a recovery thereon by a contractor who received them in payment for work done. | 637 |
| A mortgage given to secure bonds issued under legislative authority is valid between the parties without registration. | 1207 |
| A junior mortgagee in a suit to foreclose his mortgage may, on sufficient cause shown, have a receiver appointed, but without prejudice to the rights of the senior mortgagee. | 1207 |
| Where a junior mortgage covered the whole road, while the senior mortgage covered only a portion, and a receiver was appointed on foreclosure of the former, held, that the property should be divided, and another receiver appointed for that portion covered by the senior mortgage. | 1207 |
| A receiver may be appointed where trustees under a prior mortgage attempt to execute the trusts prejudicially to subsequent incumbrancers, or equity may enjoin improper execution. | 1207 |
| REAL PROPERTY. | |
| See, also, “Adverse Possession”; “Boundaries”; “Deed”; “Ejectment”; “Estates”; “Public Lands.” | |
| Plaintiff in ejectment can recover mesne profits only from the time of the ouster laid in the declaration, where he proves no title prior thereto. | 1133 |
| The value of defendant's improvements will be first set off against mesne profits received prior to the actual ouster. | 1133 |
| RECEIVERS. | |
| See, also, “Corporations.” | |
| A party having, as security for a large debt, a lease of a railroad, from whom possession has been taken by a receiver appointed in a suit by another, is, upon his discharge, entitled to have possession restored to him. | 641 |
| RECORDS. | |
| Official re-establishing under legislative act of records which have been burned. | 922 |
| REFERENCE. | |
| The circuit court of the United States has no authority to refer a suit at common law to a referee for trial, without the consent of both parties, although, in the state court, such a suit is referable without consent. | 708 |
| Plain mistakes in facts appearing on the face of the award, or from the evidence submitted, are no ground for relief in equity from the judgment entered upon the award. | 1035 |
| REMOVAL of CAUSES. | |
| See, also, “Courts.” | |
| Right of removal. | |
| When a defense depends wholly on the construction of the constitution of the United States and acts of congress, the courts of the United States have jurisdiction of the subject-matter, without regard to the citizenship of the parties. | 285 |
| An action of trespass is removable where defendant justifies the alleged trespass under the authority of a” court and of the laws of the United States. | |
| Foreign citizens, where they do not constitute the entire plaintiff or defendant, cannot remove a suit. | 60 |
| The fact that plaintiff, who was an alien when the suit was brought and petition for removal filed, has since become a citizen, will not prevent the removal. | 600 |
| To authorize a removal on the ground of diverse citizenship under Act Sept. 24, 1789, § 12, all the plaintiffs must be citizens of the state in which the suit is brought, and all the defendants must be citizens of some other state or states. | 781 |
| In a suit commenced in the state court of Vermont by two plaintiffs, one was a citizen of that state, and the other of New Hampshire, while defendant was a citizen of New York. Held, that the cause was not removable. | 781 |
| Nominal parties, having no actual interest, will not affect the question of removal. | 60 |
| The case must be so removed that the controversy can be fully determined. | 60 |
| Time for removal. | |
| A cause may be removed before answer, on the petition of defendants brought in on order of interpleader. | 287 |
| After a reversal on an appeal pending, when Act March 3, 1875, was passed, the cause is removable at the first term of the lower court at which a new trial could be had after filing the remitter. | 250 |
| The mere fact that a cause is ready for the ex parte execution of a writ of inquiry by plaintiff after an office judgment is not equivalent to its being ready for trial on issues joined. (Act March 3, 1875, § 3.). | 972 |
| The fact that the cause is not actually tried at the first term at which it is at issue and legally triable, because the parties failed to put it upon the trial list, does not preserve the right of removal until a subsequent term. | 799 1243 |
| Proceedings to obtain. | |
| The circuit court has no power to issue a writ of mandamus to a state court for the removal of a clause. | 581 |
| The petition for removal is not required to be verified, by Act March 3. 1875. | 600 |
| The petition for removal may be amended. | 600 |
| The circuit court cannot review the decision of the state court on questions arising under the petition for removal. The remedy is by appeal to the supreme court of the state, and thence by writ of error to the supreme court of the United States. (Act 1789 § 12.). | 581 |
| The order for removal need not be made before appearance by defendant. (Act March 3, 1873.). | 600 |
| Effect of removal: Subsequent proceedings. | |
| Where the defendant removed the cause, but failed to have the transcript from the state court filed, plaintiff will be given leave to have the same filed and the case docketed. | 1113 |
| The defendant in a case removed as one arising under the constitution or laws of the United States will be confined substantially to the ground of defense indicated the petition for removal. | 600 |
| Special bail, given upon removal, can only surrender the principal in open court. | 324 |
| The state statute in reference to the recovery of costs will govern where the action is removed to the federal court. | 635 |
| SALE. | |
| See, also, “Vendor and Purchaser.” | |
| The purchaser of goods sold while at sea acquires, without actual possession, a constructive possession, sufficient to maintain trespass against any wrongdoer. | 734 |
| SALVAGE. | |
| See, also, “Admiralty.” | |
| Right to salvage compensation. | |
| Unsuccessful efforts to save imperiled property are not grounds for an award of salvage. | 996 |
| Whether the towing into port of a rudderless vessel is to be considered a salvage service depends upon whether the loss of the rudder rendered the vessel unnavigable. | 483 |
| A steamer which went to the, relief of a sloop drifting towards a dangerous reef in Hell Gate after floating off a rock on which she had struck, and took her in tow, held entitled to salvage, though the crew, which bad been watching her from the shore, had put out in their boat to board her. | 417 |
| A tug which gets a burning vessel afloat, and tows her to a place where other parties put out the fire, renders salvage service, although both sets of salvors deny co-operaion. | 996 |
| A vessel which, by a signal of distress, secures the aid of salvors, will not be heard to say that she could have saved herself without assistance. | 996 |
| Pilots acting under an agreement for extra compensation will nevertheless be allowed salvage compensation, where there has been extraordinary personal merit or effort, or unforeseen exertion and hazard, in the performance of the service. | 483 |
| The crew of a ship wrecked on a desert island, who rescue, with great labor, part of her cargo, held not entitled to compensation as salvors. | 331 |
| Public servants may recover salvage for assistance of great merit, rendered in the line of their regular duty, but in excess of the official requirements thereof. | 996 |
| The mayor of Charleston has power to forbid the coming of a burning ship from sea to the city wharves; also, to make her coming conditional upon her paying all the expenses of saving her. | 996 |
| A city fire department may recover salvage for saving a burning ship, brought, by permission of the city authorities, within the city jurisdiction. | 996 |
| Contracts for salvage services. | |
| A contract for compensation at all events is no bar to salvage, unless it is express, explicit, and clearly proved. | 996 |
| An agreement to pay $2,500 for pulling off a brig aground on Romer Shoal held exorbitant, and $1,250 was allowed. | 454 |
| Forfeiture or reduction of salvage. | |
| A tug carelessly ran her tow aground. Held, that her share in the salvage allowed for pulling the tow off should be forfeited to the tow. | 454 |
| Stores found on board a derelict may be used by the salvors for necessary subsistence during the course of the service. | 1163 |
| In the case of illiberal conduct of salvors in dealing with a vessel in distress, liberal compensation will not be awarded. | 630 |
| Amount. | |
| One-half decreed by way of salvage, in case of a vessel found derelict on the high seas. | 201 |
| Salvage of derelict property is compensated by the same rules that obtain in respect to property not derelict. | 1163 |
| The rule allowing a moiety to salvors in cases of derelict is not inflexible. | 745 |
| Salvors cannot found a claim for increased compensation upon the use of a steamer furnished by underwriters free of charge. | 1163 |
| The fact that salvage services were rendered by a steam vessel to a steam vessel is a ground for larger compensation than if both had been sailing vessels. | 996 |
| An apparently empty chest was found floating on the high seas. On being broken up, 70 doubloons were found concealed therein. Held, that the finders were entitled to a moiety only, though there were no claims, or marks of ownership. | 380 |
| One-third of net value, of $14,500, allowed for floating vessel aground on Loo-Key Shoals by discharging 130 tons of ballast, carrying out anchors, etc. | 1154 |
| One-fourth allowed where an American brig, on the northwest coast of Africa, whose officers were dead or dying from coast fever, was rescued by a British naval vessel, and sent home in charge of one of its officers. | 979 |
| One-fourth awarded upon a valuation of $35,391, for rescuing, in a partially damaged condition, a vessel and cargo stranded upon Florida Reef. | 630 |
| $800 awarded for navigating disabled vessel to port after she had got inside the Florida Reefs. | 23 |
| $2,000 allowed 36 salvors, on a net value of $12,000, for services rendered derelict vessel stranded in Boston harbor. | 1163 |
| $5,740 allowed, on valuation of $6,740 for saving oil and materials from a vessel abandoned at a distance of 1,000 miles from any country where assistance could be procured. | 745 |
| Remedies for recovery. | |
| All cosalvors should be made parties to a libel for salvage. | 67 |
| Where salvors conceal from the court the names of other persons who participated in the salvage service, their libel will be dismissed. | 67 |
| A libel in the name of a British naval officer and the British consul, joining with him “for all other interests,” where the vessel, rescued by a British naval vessel, was sent home in charge of the officer, held not fatally defective. | 979 1244 |
| A person claiming as a salvor will be permitted to testify in his own behalf without determining, by technical refinements, whether the service was strictly a salvage service or not. | 979 |
| Libelants will be decreed to pay costs out of their distributive share, where a fair and liberal allowance has been tendered to them or their proctors. | 67 |
| Right to property or proceeds. | |
| Salvors of a derelict have a right to retain possession until the salvage service is completed, but if their own means are inadequate they are bound to accept additional assistance, if offered. | 1163 |
| SEAMEN. | |
| See, also, “Admiralty”; “Fisheries”; “Maritime Liens.” | |
| Protection and relief. | |
| The crew may demand a survey in a foreign port, where they have reasonable grounds to believe the vessel to be unseaworthy. | 112 |
| Where a survey is refused, and resisting seamen are imprisoned on shore and left there, they will be allowed full wages. | 112 |
| Extra wages are allowed for a short allowance of bread, where an insufficient quantity was provided, though the immediate cause of the deficiency was the spoiling of part of it by a sea peril. | 29 |
| The contract of shipment. | |
| A contract for a voyage, which has not a definite time and place of termination, is void. | 526 |
| The contract of a minor is voidable at any time, but he can only recover the value of his services after an allowance to the owner for any injury sustained by reason of its avoidance. | 562 |
| Specifying the places to which the voyage might extend, held an implied agreement that it was not to extend to any other, and a sufficient compliance with the English merchant shipping act of 1873. | 24 |
| Where the duration of the voyage is described as probably 12 months, the seaman, under the British merchants' shipping act is absolutely bound to make the voyage, if the master endeavors, in good faith, to accomplish it within the time mentioned. | 562 |
| A steward disrated for wasting provisions, and put before the mast, may accept the change as a rescission of contract, and claim his discharge at the next port. | 562 |
| A seaman cannot be discharged for slight offenses, nor for a single offense, unless of a very aggravated character. | 1083 |
| Notwithstanding a sufficient cause for discharge, if the seaman repents, and offers to return to duty, the master is bound to receive him. | 1083 |
| A seaman disabled by an accident, in the discharge of his duty, is to be cured at the expense of the ship. | 416 |
| The expenses of medical attendance necessary for the safety of the life of a seaman who has contracted an ordinary disease in a foreign port will be deducted from his wages, where the vessel is properly provided with a medicine chest. | 416 |
| Conduct of master or mate in respect to seamen. | |
| The owners are not liable for the act of the master in wrongfully detaining seamen's clothing, unless they have ratified his acts. | 112 |
| Where a seaman is wrongfully left by the master in a foreign port, the owners are liable for all damages sustained thereby. | 905 |
| Wages—Right to. | |
| Quantum meruit compensation. | 24 |
| A hiring at monthly wages imports that the engagement is by the month, and the seaman loses the month's wages where he quits, and recovers the whole wages where he is discharged, before its expiration. | 805 |
| Where a vessel had been captured and condemned, and, pending an appeal, was restored, held, that the seamen were entitled to full wages. | 247 |
| A seaman carried away on the capture of the vessel is entitled to full wages, where the vessel is recaptured, pays salvage, and earns freight. | 739 |
| The discharge of the crew by sale of the vessel on execution is of the same effect as to their rights as the breaking up of the voyage or discharge of the crew by act of the master. | 805 |
| Evidence held insufficient to show that the voyage was broken up by the fault of the owner, where the vessel was run on a reef in a well-known channel, where there was plenty of room, and the master was a man of experience. | 174 |
| A seaman refusing to proceed in a vessel provided for the further transportation of the cargo, where the first vessel became unseaworthy during the voyage, held not entitled to wages to the end of the voyage. | 200 |
| The two-months extra wages, and the expense of returning home, are not allowed the crew of a vessel condemned in a foreign port as unfit for service, where she was seaworthy when she sailed. | 307 |
| A foreigner shipped at a foreign port, and discharged at a foreign port in accordance with his contract is not entitled to two months' extra pay. | 29 |
| Extra wages allowed seamen who left the ship in a foreign port with the connivance of the master, where a discharge was refused by both master and consul. | 29 |
| An arrest and imprisonment under a criminal charge by the master held equivalent to a discharge. | 178 |
| Contracts with seamen, upon a discharge before completion of voyage, concerning wages already earned, will be set aside or disregarded by courts of admiralty, if inequitable. | 24 |
| The measure of damages for a wrongful discharge is full wages to the return of the vessel, and the expenses of the seaman's return. | 1083 |
| The intermediate earnings of the seaman may be deducted from the expenses of his return, but not from the wages due. | 1083 |
| The certificate of a consul that the seaman consented to the discharge is not conclusive. | 1083 |
| Remedies for recovery. | |
| Renunciation of the lien by agreement is ineffectual unless fully understood by the seamen, and adequate compensation is made therefor. | 136 |
| The lien is not defeated by a previous attachment of the vessel, at common law, in a state court, abandoned before the filing of the libel. | 136 |
| A forbearance to sue for nine months, even though the vessel and libelant were within the jurisdiction the entire time, does not raise a presumption of payment. | 419 |
| The lien for wages will not be enforced, as against a bona fide purchaser, where the libel was delayed for many months, and the vessel was repeatedly in port, and her owner had advertised for claims against her. | 1 |
| When the 10 days commenced to run, after which seamen may sue for wages. | 402 |
| The defense that the suit is prematurely brought is waived, if not specially pleaded. | 178 |
| The value of the seaman's clothing, detained by the master, may be recovered in the same libel with a claim for a wrongful discharge. | 1083 |
| —Deductions: Extinguishment, etc. | |
| Where a whaling voyage is broken up in a foreign port, from necessity, the master, on the request of the seamen, may pay their shares by delivering portions of the oil taken. | 1061 1245 |
| Respondent has the burden of showing that the shipping agent to whom the alleged payment in advance was made was authorized by libelant to receive it. | 403 |
| A settlement deliberately made by a seaman with the advice of his proccor will not be opened. | 29 |
| Wages are not, as a matter of course, wholly forfeited for smuggling. | 526 |
| A forfeiture of half wages decreed for misbehavior making it necessary to dismiss the seaman when the voyage was about half performed. | 874 |
| Seamen may recover wages and claims for short allowance, although guilty of mutinous and disobedient conduct, where they had afterwards returned to duty and been criminally prosecuted for the offense. | 178 |
| No wages will be allowed a seaman, though criminally punished for the offense of mutinous conduct, who has been guilty of embezzlement and desertion. | 178 |
| Seamen are guilty of desertion where they leave the vessel before the voyage is completed, without the master's consent, though with his knowledge, and upon his promise that they shall not be arrested therefor. | 24 |
| An entry upon the log book stating the name of the seaman, and that he was absent from the ship at least 48 hours, is essential to the statutory desertion. Such entry may be controlled by parol evidence. | 11 |
| Though the entry in the log book of desertion is defective, a forfeiture may be decreed, under the general maritime law, upon other evidence. | 55 |
| SET-OFF AND COUNTER-CLAIM. | |
| Unliquidated damages cannot be pleaded as a set-off. | 445 |
| The right of set-off is limited at common law to cases of mutual, connected debts, and does not extend to debts which are unconnected. | 1009 |
| Equity follows the law in regard to matters of set-off, unless there is some intervening natural equity, going beyond the statute of set-offs. | 675 |
| Joint debts cannot be set off against separate debts, or separate debts against joint debts, either at law or in equity. | 675 |
| A separate debt due from a partner cannot be set off from a joint debt due to the partnership, though the partner is insolvent. | 675 |
| Quaere, whether the debt of one partner in a joint concern with others, not yet closed, can be set off in an action between partners. | 1028 |
| The right of set off, either in law or in equity, of mutual debts, is extinguished by a bona fide assignment of one of the debts. | 675 |
| SHIPPING. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Carriers”; “Collision”; “Demurrage”; “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage.” | |
| Public regulation. | |
| A foreign vessel, which, after being wrecked, is rebuilt by a citizen of the United States, and enrolled as a new domestic vessel, is liable to forfeiture, as fraudulently enrolled, though she might have been enrolled as a foreign vessel wrecked in the United States and purchased and repaired by a citizen. | 797 |
| Title to vessel. | |
| The grantor in a bill of sale cannot be prejudiced by the grantee's neglect to record it, and cannot be made personally liable for negligent navigation after his interest has ceased. | 1008 |
| The owner of a vessel wrecked on a desert island has no title to a small vessel built from her remnants by the master and crew, as the only means of escaping from the island. | 331 |
| For conveying materials of the wrecked vessel in such small vessel, held that the master and crew were entitled to compensation for transportation. | 331 |
| The master. | |
| Where the vessel owners have no agent in a foreign port, the master has power to make a charter party. | 1015 |
| The master has no power to enter into a charter in a foreign port for the purpose of giving a creditor of the vessel owner a security for his debt. | 1015 |
| A vessel which put into St. Thomas in distress, whose cargo of wheat was reshipped in bags, was not able to take in the entire amount, by reason of the increased bulk. Held, that the master was justified in selling the wheat necessarily left behind. | 475 |
| Liabilities of vessels or owners. | |
| The vessel is not liable in rem for breach of a contract for rent of bar privileges thereon. | 1178 |
| Bills of lading “C. O. D.” are not a lien on the vessel to secure payment of the money collected from the consignee on delivery of the goods. | 1178 |
| The contract of the master to sell the cargo, and transmit the proceeds to the shipper will not bind the vessel, where the proceeds are not actually placed on board the vessel. | 4 |
| The remedy in rem for injuries from injurious escape of steam on steamboats is confined to injuries to passengers. Other persons on board have only a remedy in personam. (Acts 1838, 1852.). | 138 |
| A material man cannot maintain an action in personam in admiralty, where a note or other obligation has been taken for the demand. | 142 |
| Slander. | |
| See “Libel and Slander.” | |
| SLAVERY. | |
| Right to freedom on a sale in the District of Columbia, of a slave brought from Maryland. | 265 |
| Action for penalty for obstructing the arrest of a fugitive slave. | 172 |
| SPECIFIC PERFORMANCE. | |
| Part performance will take an oral agreement out of the statute of frauds, and the residue will be enforced by a decree for performance. | 957 |
| Length of time is no objection to a decree, if not pleaded in the answer, where the condition of the parties and property remains substantially the same. | 957 |
| The failure to tender money due under a contract until five years after the time limited by the contract for payment is such laches as will justify the dismissal of the plaintiff's bill. | 378 |
| STATES. | |
| See, also, “War.” | |
| The United States circuit court has no jurisdiction of a writ of certiorari to a state court to remove proceedings by the state against a railroad company under Act Ill. May 2, 1873. | 1197 1246 |
| STATUTES. | |
| The nature of a proviso in a statute. | 840 |
| The legislative construction of a statute cannot have a retroactive operation. | 454 |
| The statements of members of a legislative body in debate on the passage of a law may be resorted to to ascertain its general object, though not for the purpose of explaining the meaning of the terms used. | 252 |
| The construction given to the statutes of a state or country by its courts will be followed by the courts of other countries. | 881 |
| The repeal of a lien law after the lien has attached by performance of work does not defeat the lien. | 487 |
| TAXATION. | |
| See, also, “Internal Revenue.” | |
| The Central Pacific Railroad Company is not exempt from state taxation, as an instrumentality created by congress, and employed for transportation of mails, armies, etc., of the United States. | 974 |
| In California a railroad must be taxed as real estate, and assessed in the counties in which each portion lies, at its cash value as so much land. | 974 |
| The lands and improvements thereon must be assessed separately, like other real estate. | 974 |
| An assessment of a tax, not made in the mode or on the principle prescribed by the statute, is void. | 974 |
| TENDER. | |
| A tender made after suit brought, where it does not include interest and costs, and the money is not deposited in court as required by the rules, is unavailing. | 1051 |
| Torts. | |
| See “Admiralty”; “Death by Wrongful Act.” | |
| TOWAGE. | |
| See, also, “Collision”; “Salvage.” | |
| The tug, unless wholly under the command of the tow, and implicitly obeying its orders, is bound to use all necessary care, foresight, and skill to provide for the safety of the tow. | 1143 |
| The refusal of the master of the tow to go on board after she had broken adrift, to aid in her rescue, will prevent a recovery for her loss, if it contributed thereto, unless such refusal was based upon a well-grounded fear of endangering his life. | 486 |
| TOWNS. | |
| The town must have so much of its roads passable as not to delay travelers, or endanger them in getting by, at places not very remote or very inconvenient. | 864 |
| Notice to town to pay damages for neglect in repairing highway, under the Rhode Island statute, before bringing suit, held not applicable to claims ex delicto. | 864 |
| Damages for injury from defect in a highway will not be aggravated where the road existed for many years in the condition complained of, and had never before been the subject of complaint. | 864 |
| TRADE-MARKS AND TRADE-NAMES. | |
| Equity will protect the owner of a trademark by an injunction against an infringer and a decree for damages, which is ordinarily the loss of profits from the infringement. | 546 |
| The imitation of a manufacturer's label where the only change was “Holsteter” and “Holsteter & Smyte,” for “Hostetter” and “Hostetter & Smith,” held to be illegal. | 546 |
| Where complainants' sales fell off in an amount at least equal to sales made by defendant of the imitated article, damages were awarded to the extent of the profits they would have made on the number sold by the defendant. | 546 |
| TREATIES. | |
| The operation of a treaty before ratification by the governing powers of the state by whose agents it has been signed. | 1129 |
| TRESPASS. | |
| Possession taken by a customs officer of imported goods, before they are unladen, to secure the lien for duties, will not prevent one who purchased them while at sea from maintaining trespass against a wrongdoer. | 734 |
| Plaintiff cannot give evidence of trespasses committed on land not within his location at the time of the trespass. | 390 |
| TRIAL. | |
| See, also, “Appeal”; “Continuance”; “Evidence”; “Exceptions, Bill of”; “Judgment”; “Jury”; “New Trial”; “Practice”; “Reference”; “Witness.” | |
| An offer to allow the jury to examine, with a microscope, papers whose genuineness is doubted, is too late, when made during the argument. | 700 |
| The jury cannot be allowed to take to the jury room a letter, the genuineness of which is denied, for the purpose of comparing it with a genuine letter. Such comparison must be made in the progress of the trial. | 699 |
| A motion in arrest of judgment because the ejectment against the casual ejector was wrongly entitled, and for other defendants, will be overruled where the declaration to which the real defendant pleaded was right. | 845 |
| TROVER AND CONVERSION. | |
| Trover will not lie against the master of a vessel for the cargo, unless the freight is paid or tendered or waived, or where the goods were lost. | 287 |
| TRUSTS. | |
| See, also, “Executors and Administrators”; “Guardian and Ward.” | |
| Rules as to the creation of resulting trusts, by Story, J. | 746 |
| A declaration of trust not recorded is inoperative, under Act Ill. Jan. 31, 1827. | 783 |
| A feme sole created a trust for herself for life, with remainders, reserving a power to revoke or declare new trusts. Held, that an instrument to “renew the trust for five years” was a complete execution of the power, and operated as a revocation at the end of five years. | 122 1247 |
| A trust Held extinguished by the cestui que trust conveying the land, though the grantee failed to fulfill its agreement on which the conveyance was made; the remedy of the cestui que trust being at law, for damages, or by bill in equity, for specific performance. | 957 |
| The remedy of the cestui que trust against the trustee for negligence is in equity, not at law. | 850 |
| Equity will not lend its aid to enforce a trust made to defraud creditors. | 957 |
| Where a trust made to defraud creditors is executed by the trustee conveying the property to a third person to secure a loan to the cestui que trust, whose rights the grantee distinctly recognizes, the trust is enforceable. | 957 |
| What is sufficient evidence of the trust, and its recognition by the grantee. | 957 |
| A state legislature may authorize a change of investments by trustees. | 766 |
| A trustee cannot attack the validity of a deed under which he took possession, unless he was deceived into taking title, not knowing that the property really belonged partly or wholly to himself. | 912 |
| United States Officers. | |
| See “Marshal.” | |
| USURY. | |
| The purchaser of checks payable to bearer though bona fide and without notice, is affected by usury therein. | 176 |
| In an action to recover on a note given for a usurious loan, the burden is on plaintiff to show the actual amount lent. | 176 |
| VENDOR AND PURCHASER. | |
| See, also, “Bankruptcy”; “Boundaries”; “Deed”; “Fraudulent Conveyances”; “Sale”; “Specific Performance.” | |
| The vendees are not entitled to reply upon the opinion of the vendor's agent, where they have the means of ascertaining the facts. | 566 |
| A vendor of property is not liable to the vendee for taxes for the current year, not then assessed, and not payable until January 1st following. | 947 |
| A purchaser who has notice of such facts as, with ordinary diligence, would lead him to a full knowledge of an outstanding equity, is a purchaser with notice. | 197 |
| Real estate purchased with actual or constructive notice that it is partnership property is chargeable, in the hands of the purchaser, with the payment of the partnership debts, of whose existence they had no knowledge. | 746 |
| The doctrine of a purchaser without notice applies only to equitable rights. In the case of legal titles the rule is, “Caveat emptor.”. | 1039 |
| WAR. | |
| See, also, “Habeas Corpus”; “Payment”; “Prize.” | |
| Under the law of nations, the rights incident to a war waged by a government to subdue an insurrection or revolt of its own subjects or citizens are the same, in regard to neutral powers, as if the hostilities were carried on between independent nations. | 95 |
| A blockade, of the enemy's ports is as lawful a means of war in civil warfare as it is in a war between nations foreign to each other. | 95 |
| No formal declaration of war by the president, in the case of the war of the Rebellion, was necessary to render lawful the means adopted by him to repel the warlike measures of the enemy. | 95 |
| Trials under the reconstruction acts, by military commission, could only be for the violation of some known law in force in the state, and the punishment inflicted only that provided by law. | 73 |
| A military commander, under circumstances of actual, urgent, immediate, and pressing public necessity, may take private property. | 422 |
| Where a person in an Indian country induces Indians to steal cattle for him, with which to fulfill a government contract for army supplies, the major general commanding in that country may order his arrest and the seizure of the cattle. | 422 |
| Army contractors and their subordinates are liable to arrest by the military commander for frauds against the government under their contracts, but must be brought to trial with reasonable diligence. | 422 |
| WILLS. | |
| See, also, “Descent and Distribution”; “Executors and Administrators.” | |
| A will concerning land in Pennsylvania, no matter where made, must be proved by two witnesses. | 1123 |
| WITNESS. | |
| See, also, “Bankruptcy”; “Costs”; “Deposition”; “Trial.” | |
| Privilege. | |
| Neither the jurors, nor the officer to whose care they were committed, can be compelled to testify to the fact that the jury separated after the cause was submitted, and before the verdict was agreed upon. | 636 |
| Competency. | |
| Inhabitants of towns are competent witnesses in actions where the towns are parties. | 957 |
| On a libel in rem upon a bill of lading, the clerks and agents of the transportation company claimant, having personally no interest in the business, and not responsible for its defaults, are competent witnesses. | 662 |
| The master of a vessel is a competent witness for the owners, in a suit in rem for wages of a seaman. | 805 |
| The master of a ship is not a competent witness in an information in rem for a forfeiture occasioned by his misconduct. | 482 |
| In replevin for goods taken by defendant, a constable, he may testify for himself, upon being indemnified by plaintiff in execution. | 194 |
| A person who borrows checks payable to bearer, to raise money upon for his accommodation, but has not indorsed them, is a competent witness for the defendant, to prove usury. | 176 |
| A creditor of an insolvent debtor is not competent, in a suit by his trustee. | 3 |
| One of several defendants, who has judgement upon demurrer to his separate plea of bankruptcy, may be a witness for the others, upon releasing all rights in his estate. | 1015 |
| Credibility: Impeachment. | |
| A witness may be impeached by proof of declarations made by him out of court, contradictory to his testimony, without requiring that he should be first examined with reference to them. | 730 |
| Attendance and fees. | |
| An attachment may issue against a witness for failure to attend before a commissioner for examination de bene esse in obedience to a subpoena. | 872 1248 |
| The circuit court of the District of Columbia will grant a rule on a witness residing in Baltimore, Md., to show cause why he should not be attached for not attending according to summons. | 282 |
| A witness who, for want of surety to appear and testify, has been imprisoned, is entitled to the daily compensation for the time of imprisonment. | 132 |
| WRITS AND NOTICE OF SUITS. | |
| Sufficiency of service of declaration in ejectment. | 850 |
| A subpoena on a bill in equity in the district court by an assignee in bankruptcy is properly made returnable on the first Tuesday of the month, where there is a new term on that day. | 1139 |
| A subpoena on a bill in equity by the assignee is not properly served when left at a dwelling house which the parties have not occupied for over two years. | 1139 |
| The service of a subpoena in equity on the attorney of a nonresident plaintiff, in a judgment at law, will be deemed good where the subject in controversy is the same as that in the suit in which the judgment was rendered. | 249 |
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