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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
15FED.CAS.
15FED.CAS.—86
15FED.CAS.—87
| Page | ||
| ABATEMENT AND REVIVAL. | ||
| Lis pendens in a foreign country is not a good plea in abatement. | 1146 | |
| The pendency of another action for the same cause in a state court is not, in general, a good plea in abatement of a suit in the circuit court of the United States. | 898 | |
| The pendency of a suit in a court of general jurisdiction in another state, in which property sufficient to satisfy the demand had been attached, is a bar to a second suit in the federal court. | 78 | |
| ACCOUNT STATED. | ||
| A receipt in full on a settled account is merely prima facie evidence, and is not binding, unless it be the result of a compromise. | 79 | |
| ACTION. | ||
| An equitable right cannot be enforced in a common-law form, and as a legal right, on the equity side of the federal circuit court. | 895 | |
| ADMIRALTY. | ||
| See, also, “Affreightment”; “Bills of Lading”; “Bottomry and Respondentia”; “Charter Parties”; “Collision”; “Marine Insurance”; “Maritime Liens”; “Pilots”; “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping'; “Towage”; “Wharves.” | ||
| Jurisdiction—In general. | ||
| It is not the subject-matter that determines admiralty jurisdiction, but the cause in its secondary sense,—the suit, the legal process. | 1201 | |
| Contract for materials furnished at the home port, in building steamboats and other vessels, are not within Act Feb. 26, 1845, extending the jurisdiction of the district courts to certain cases upon the lakes and navigable waters connected therewith. | 1094 | |
| Admiralty has jurisdiction of a petition for a surplus in the registry, though the application involves the settlement of partnership accounts. | 89 | |
| Query, whether a libel lies on a mere mortgage of a vessel, as a chattel, to secure a debt, if arising out of a marine contract and business, or not. | 298 | |
| —Waters and places. | ||
| The admiralty jurisdiction of the federal courts extends over the Ohio river. | 444 | |
| Admiralty has jurisdiction in a cause of collision between vessels when the injury is received in a slip between piers or wharves, where the tide ebbs and flows. | 933 | |
| It is no objection to admiralty jurisdiction of a claim for negligent towage that the contract of towing was to be performed within the body of the state, or within a harbor. | 340 | |
| Admiralty has no jurisdiction of a suit for wages earned in a voyage on a canal connecting navigable lakes in different states, though a small part of the voyage was on public navigable waters. | 1311 | |
| The district court has jurisdiction in rem of a libel for damages under a contract of affreightment to carry goods from Bound Brooks, on lie Raritan river, to Philadelphia, by the Delaware & Raritan Canal. | 1051 | |
| Admiralty has jurisdiction of a libel in rem for injuries to a cargo carried under a contract of affreightment between New York City and Troy, made between residents of the state. | 333 | |
| The district court for the Southern district of New York has jurisdiction in rem over a vessel fastened to a dock in Jersey City, outside low-water mark, west of Manhattan Island and south of the mouth of Spuyten Duyvell creek. | 1119 | |
| —Persons and property. | ||
| Admiralty will entertain a libel by foreign seamen for wages only when the voyage is broken up, or when the seamen have been wrongfully separated from the ship, or placed in a state of destitution here. | 1172 | |
| The court will entertain jurisdiction of a libel for seamen's wages against a Nova Scotian vessel, notwithstanding the protest of the British consul, where the seamen did not belong in Nova Scotia, and the itinerancy of the vessel was uncertain. | 520 | |
| The seamen are not precluded from maintaining the action by section 190 of the British merchants' shipping act of 1854 | 520 | |
| ——Rights and controversies. | ||
| An admiralty court has jurisdiction to decree the bounty allowed to persons employed in the cod fishery, and a claim therefor may be united with a claim for an account of the fish taken. | 1092 | |
| ——Torts. | ||
| The common-law doctrines of contributory negligence do not apply to admiralty law. The sufferer may sue in law or in admiralty, and in either case the law of the forum must prevail. | 1303 | |
| A libel by passengers, charging that the master and owners, in disregard of their duty, deprived libelants of reasonable food and drink, and subjected them to cruelties and indignities, states a case of admiralty jurisdiction. | 1201 | |
| The penalty of $3 per day given by the act of May 17, 1848, to passengers put up on short allowance of food, must be sued for at law, and admiralty has no jurisdiction. | 1201 | |
| Adverse Possession. | ||
| See “Ejectment”; “Real Property.” | ||
| AFFREIGHTMENT. | ||
| See, also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Shipping.” 1352 | ||
| The carrier fulfils his undertaking by bringing the cargo to the appointed port, with notice to the consignee of that fact, and the readiness of the ship to deliver it at a convenient and proper place. | 105 | |
| A lumber-laden sloop held unseaworthy because of insufficient crew, and rotten timbers causing her seams to open in a moderate storm. | 1191 | |
| The vessel is not responsible for nondelivery pursuant to the bill of lading, where she puts into a port in a crippled condition because her crew are disabled by disease. | 1198 | |
| The vessel is not liable for damages caused by grounding where the officers exercised reasonable care and skill in her navigation. | 436 | |
| Fruit shipped being inherently subject to decay, and the bill of lading being qualified with that condition, the vessel is not responsible for its sound delivery, without evidence of some misfeasance of the master which set in action, or aggravated, such tendency. | 73 | |
| The vessel is not liable for injuries to her cargo of fruit while detained for necessary repairs, though the means used by the master to preserve it, under the advice of experienced and competent persons, were not the most suitable and well judged. | 73 | |
| The owner of a cargo sold in a foreign port to supply the necessities of the ship is entitled to proceed against the other owners of cargo for contribution, where the ship or owners cannot satisfy his demand. | 348 | |
| The receipt of the vessel for freight in good order will make a prima facie case against her. | 656, 711 | |
| In such case the burden is upon the carrier to show that the loss of the goods arose from defects therein, or from dangers of navigation, and such burden is not sustained where the proof leaves the question in doubt. | 656 | |
| Where the consignee has received goods at the wharf without qualification or reservation, and the carrier has proved due care, and actual delivery of all goods in his possession on arrival, the burden is then on the consignee to show that a subsequently discovered deficiency was chargeable to the wrongful acts of the carrier. | 1347 | |
| ALIENS. | ||
| The validity of a judgment admitting a person to citizenship is not impaired by in accurate recitals, not intended to deceive, it being clear that the applicant was entitled to naturalization. | 1300 | |
| AMNESTY. | ||
| A duly-licensed attorney, who has accepted a full pardon from the president and taken the oath of amnesty, may resume his practice in the federal courts without taking the oath prescribed by Act Jan. 24, 1865 | 3 | |
| APPEAL AND ERROR. | ||
| See, also, “Bankruptcy.” | ||
| A writ of error coram nobis is issued by a court to reverse its own judgment. | 132 | |
| An appeal bond is invalidated by interlining the name of a new obligor, and its execution by him without the consent of the other sureties. | 828 | |
| A statement in the clerk's minutes that a bill of exceptions was sealed and placed on file is not available unless the exception was seasonably reduced to writing, and embodied in a regular bill of exceptions. | 740 | |
| Objections to evidence are not available unless it appear that the party excepted at the time. | 740 | |
| Special objections taken to certain parts of testimony are not available where no exceptions were taken to the ruling of the court. | 740 | |
| The ground of objection to the admissibility of evidence must appear, to render the exception available. | 740 | |
| Error in the admission of testimony of a custom is Tendered harmless by a subsequent instruction construing the contract without regard thereto. | 214 | |
| APPEARANCE. | ||
| A nonresident of the district waives his immunity from suit by voluntarily appearing and pleading jointly with other defend ants. | 1278 | |
| Want of 10 days' notice to an administrator of the presentation of a claim to the probate court is cured by the voluntary appearance of the administrator. | 1339 | |
| ARMY AND NAVY. | ||
| See, also, “Habeas Corpus”; “Prize”; “War.” | ||
| A military subordinate is not liable in damages for making an illegal arrest pursuant to an order from his superior, legal on its face. The superior alone is liable. | 1235 | |
| It seems that an act suspending the writ of habeas corpus is itself a protection to officers making arrests thereunder, as against any action by the party arrested. | 1235 | |
| ARREST. | ||
| See also, “Criminal Law”: “Execution”; “Extradition”; “Judge”; “Malicious Prosecution.” | ||
| The mode of redress for a person privileged from arrest, when arrested, is by motion to the court from which the process is sued. | 1126 | |
| ASSIGNMENT. | ||
| The right of a part owner of a vessel under agreement with the others to sail the vessel as master is a personal right, and cannot be transferred with a sale of his interest. | 705 | |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | ||
| See, also, “Bankruptcy.” | ||
| An assignment to creditors is not valid without their assent. | 70 | |
| An assignment of property to creditors, or to others for their benefit, is founded upon a good consideration. | 70 | |
| Preferences are valid in Illinois, not being prohibited by statute. | 70 | |
| ASSUMPSIT. | ||
| See, also, “Contracts.” | ||
| Assumpsit will lie for work done under a contract under seal which had been rescinded for failure to comply with its terms, where the work was accepted by the other party. | 214 | |
| A person who contracts to do certain work at a certain price, and quits without cause before it is finished, cannot recover, upon a quantum meruit, the value of his labor. | 482 1353 | |
| ATTACHMENT. | ||
| See, also, “Bankruptcy”: “Execution”; “Garnishment”; “Writs and Notice of Suits.” | ||
| The nature and kind of possession which the officer is bound to keep of personal property to save the attachment. | 492 | |
| The second attaching creditors are entitled to the relief against fraud given by Act Mass. Feb. 21, 1824, though their writ be not returnable to the same term of court as the first attachment. | 781 | |
| The giving of a bond for possession does not prevent defendant from making as full a defense as if the bond had not been given. | 251 | |
| If the attachment be not sustained, plaintiff, though he recovered judgment for his debt, cannot resort to the bond given for possession. | 251 | |
| ATTORNEY AND CLIENT. | ||
| See, also, “Amnesty.” | ||
| A vote of corporators or shareholders is not necessary to authorize counsel to appear for the corporation and admit acts of bankruptcy charged. | 274 | |
| An action at law will not lie by a counselor of the circuit court of the District of Columbia, for his fees as such, even under an express promise; otherwise as to an attorney. | 14 | |
| BAIL. | ||
| See, also, “Practice in Admiralty.” | ||
| Flight while under bail during trial on indictment for one of a series of crimes held to forfeit the privilege of liberation on recommitment to answer other charges. | 136 | |
| Notwithstanding such flight, where it appears that the punishment could be but nominal, and the imprisonment pending trial would be unreasonable, held that the prisoner should be admitted to bail, | 136 | |
| Probable cause, on oath, must be set forth, to justify the court in holding defendant to special bail, under Act Feb. 26, 1795 | 337 | |
| Upon a motion to appear without special bail, the court will not examine the merits of the case. | 157 | |
| When a bond for the payment of money is filed, an affidavit to hold to bail is not necessary, and the court will not mitigate the bail upon affidavit that the whole is not due nor receive as bail persons not resident in the district. | 238 | |
| Right to appear without bail in a common-law attachment, under Act Va. Dec. 26, 1792, § 6 | 736 | |
| Bailment. | ||
| See “Carriers”; “Warehousemen.” | ||
| BANKRUPTCY. | ||
| See, also, “Assignment for Benefit of Creditors”; “Insolvency.” | ||
| Operation and effect of bankruptcy laws, and of proceedings thereunder. | ||
| A married woman living separate and apart in California may be adjudged a bankrupt, as, under the state laws, she is liable to suit for her indebtedness. | 1192 | |
| The power of the federal courts in bankruptcy cases, where there is a conflict of jurisdiction with the state courts. | 601 | |
| Where it appears on the face of proceedings against the bankrupt in a state court that the debt in question is one which would not be barred by a discharge, the bankrupt court will not interfere, but will leave the question to be decided by the state court. | 259 | |
| The district court in bankruptcy has no jurisdiction on petition to set aside, as procured by fraud and collusion, a judgment against the bankrupt rendered by a court having jurisdiction of the parties and sub ject-matter. | 782 | |
| On the bankruptcy of the mortgagor, where the mortgagee was given a power to sell, the bankruptcy court has exclusive jurisdiction to determine the rights of the parties. | 744 | |
| A sheriff who, after the filing of an in voluntary petition, sells, as perishable, goods of the bankrupt attached in an action in the state court, before the filing of the petition, is liable for conversion, though he had no notice of the bankruptcy proceedings, and sold under order of court. | 823 | |
| The liability of a person as partner, joint contractor, indorser, surety, or otherwise, of the bankrupt, is not affected by any steps taken by the creditor in the bankruptcy proceedings. | 431 | |
| Jurisdiction of courts. | ||
| Under the act of 1800, the district courts are not invested with exclusive jurisdiction over the entire execution of the law, and the circuit court has jurisdiction of a bill to compel the assignees to account. | 1063 | |
| Prior to the filing of the petition the debtor had resided less than two months within the district, prior to which he had resided for over six months in another district. Held, that the court had no jurisdiction. | 265 | |
| The mere fact that a trader had desk room in an office in one district, where he was engaged in closing up the affairs of the business which he carried on in another district, in which he still resided, will not give the court of the former district jurisdiction. | 599 | |
| Commencement of proceedings—Voluntary bankruptcy. | ||
| A bankrupt filing a petition in which no allusion was made to the fact that he was a member of a firm will be allowed to amend so as to bring in the other members of the firm, where his schedule showed firm debts and assets. | 598 | |
| ——Involuntary bankruptcy. | ||
| A petition may be filed upon a claim which is not yet due, if it is provable in bankruptcy. | 563 | |
| One-fourth of the creditors, whose provable debts severally are over $250, and in the aggregate are equal in amount to one-third of the provable debts, are sufficient to constitute a legal quorum of petitioning creditors. | 711,717 | |
| In default of enough of this class signing the petition, one-fourth in number of all the creditors, whose debts, without regard to their several amounts, equal in the aggregate one-third of all the provable debts, must be joined. | 711 | |
| Debts under $250 are to be reckoned both in computing the amount represented by the petitioning creditors and the entire provable debts of the bankrupt. | 1201 | |
| The claim of a creditor on a bond, the sureties on which have been indemnified by mortgage, is not a secured claim, and should be counted. | 711 | |
| Partnership creditors must be counted, in computing the legal quorum of petitioners in proceedings against a separate partner. | 711 1354 | |
| The same proportion of creditors must join in the proceeding to force a corporation into bankruptcy that is required in the case of natural persons. (Act June 22, 1874.) | 117, 118 | |
| The levy, after the filing of the petition, of execution by creditors applying to intervene, does not enlarge their rights. | 20 | |
| Leave will not be granted to amend the petition so as to set up new causes or acts of bankruptcy, unless the debtor consents thereto. | 331 | |
| The register should return with his report lists of the claims counted and rejected. | 711 | |
| Neither an order to show cause, nor an order of seizure, injunction, or arrest, will be granted where the petitioner does not make a prima facie case. | 331 | |
| The bankrupt court has power to summon a jury to try the issue of bankruptcy during the vacation of the district court proper. | 254 | |
| Acts of bankruptcy. | ||
| A warrant of attorney to confess judgment, made to enable the debtor to continue in business, where there was no intention to defeat or delay the operation of the act, is not an act of bankruptcy. | 239 | |
| An assignment by a firm, executed by only three of the five partners, where the others consented thereto, held an act of bankruptcy. | 20 | |
| A suspension of payment of commercial paper, in the absence of fraud, is not an act of bankruptcy. | 239 | |
| A suspension of payment of notes which are not commercial paper is not an act of bankruptcy. | 1027 | |
| A judgment note is not commercial paper, within the meaning of the act. | 996 | |
| Adjudication. | ||
| An adjudication of a firm as bankrupt on a petition of one partner, individually, is erroneous, where the other members were not made parties to the proceedings, or did not assent to the adjudication. | 452 | |
| But a petition by the other partners praying leave to join in the first petition is a sufficient expression of assent to validate the adjudication against the firm. | 452 | |
| The court does not lose jurisdiction by the death of the bankrupt after the entry of an order of adjudication, and before the warrant was actually issued. | 587 | |
| An adjudication will not be set aside after default merely to permit the bankrupt to contest the allegations in the petition as to the number and amount of petitioning creditors. | 244 | |
| Assignee—Election, appointment, and removal. | ||
| An attorney for creditors may be chosen and appointed assignee by them. | 88 | |
| A person residing without, but having a fixed place of daily business within, the judicial district, will be appointed assignee, in a proper case. | 780 | |
| —Rights, duties, and liabilities. | ||
| The assignee represents all the creditors, and may assert any right which they might assert as such. | 292 | |
| The assignee may redeem property of the bankrupt sold on execution without discharging the claim of the judgment creditor, who has purchased at the sale, for the unsatisfied balance of his judgment. | 718 | |
| Assignee held not liable for attorney's services in litigation in which bankrupt was interested, except from the time when he was substituted as a party up to the time when he was permitted to withdraw and assign all his interest in the litigation to a coparty. | 587 | |
| Assignment. | ||
| Two of three brothers, who were partners in business, and resided in the Southern district of New York, were also partners in business in the Northern district. Held, that an assignee on petition filed against the three in the Southern district took the interest of the partners in business in the Northern district, and that a discharge operated as to their entire in debtedness. | 275 | |
| Property of bankrupt—What constitutes. | ||
| Property on which the bankrupt had carried on business for years, together with the outstanding credits of tie business and its good will, held available as assets, though the nominal legal title had for years stood in the names of others, under secret trusts to preserve it for the benefit of the bankrupt. | 812 | |
| A voluntary conveyance by an insolvent prior to the act of 1841, under circumstances rendering it fraudulent as to creditors, nevertheless divests the interest of the grantor, so that he need not set it forth in his inventory. | 1258 | |
| A bona fide deed of trust to secure a debt divests title, so that an assignee in bankruptcy cannot maintain ejectment. He is entitled only to the surplus, and purchasers from him can claim nothing more. | 1124 | |
| The assignee may, if he deem it to the interest of creditors, pay a balance due from the bankrupt under a conditional sale, and thereby acquire the title. | 1180 | |
| —Exemptions. | ||
| A fowling piece, pistol, fishing tackle, paintings, etc., are not exempt, as necessaries, under the act of 1842; nor are a watch and breastpin exempt, either as necessaries or wearing apparel. | 1097 | |
| The assignee cannot set apart assets to take the place of property sold under execution and distress for rent, which might have been exempted. | 87 | |
| —Wife's claim. | ||
| Under the act of 1842 the assignee cannot claim jewelry given to the wife before marriage, or gifts from the husband of personal ornaments or attire compatible with his circumstances when they were made. | 1097 | |
| —Liens. | ||
| A chattel mortgage given for the purchase price of property, when not refiled within 12 months, as required by the New York law, is void as against creditors, and as against the assignee in bankruptcy of the mortgagor. | 292 | |
| Such refiling is necessary, though the title of the mortgagee became absolute, as between the parties, by forfeiture on default of payment of the mortgaged debt. | 292 | |
| The deed of assignment dissolves, ipso facto, an attachment made within four months before commencement of the bankruptcy proceedings. | 1301 | |
| In such case the assignee's right is superior to that of the attaching creditor, al though the property was sold before commencement of the proceedings, and the proceeds paid over after the adjudication, but prior to the deed of assignment. | 1301 | |
| The title of the assignee in bankruptcy relates back to the time of making a voluntary assignment, within four months of the petition, and cuts off the levies of judgment creditors after such time. | 554 | |
| Assets from the sale of incumbered land should be applied to extinguish the incumbrances, in order of their priority. | 834 | |
| When incumbrances have been paid upon a particular parcel of land for the benefit of subsequent grantees of different interests in the same, the sum so paid is charge able, in the inverse order of alienation, to the most recently acquired interest. | 834 1355 | |
| A secured creditor cannot enforce his security after commencement of bankruptcy proceedings without first proving his debt, and receiving permission of the court. | 155 | |
| Chattels of a bankrupt remaining on the leased premises after the decree are liable to distress for rent falling due after the decree. | 353 | |
| Rent for a store occupied by the bankrupt, and subsequently by his assignee, will be paid in full, up to the surrender of the property, where there were sufficient goods to satisfy the rent on distress. | 838 | |
| —Sale. | ||
| The assignee may sell incumbered property without an order of the court. (Act 1867, § 20.) | 1268 | |
| But if the debt of the secured creditor is not admitted by the assignee, and cannot be agreed between them, then lie assignee should resort to the proper court to ascertain it, and for a sale of the property. | 1268 | |
| The court should not order the sale of land because the title is in dispute, when the liens exceed its value. | 1102 | |
| The court cannot order the sale of an en tire tract on the ground that the title is in dispute, when the title to an undivided half only is disputed. | 1102 | |
| It is doubtful whether a summary order in bankruptcy for the sale of land, on the sole ground that the title is in dispute, is due process of law as to one who disputes the bankrupt's ownership. | 1102 | |
| Proof of debts—What is provable. | ||
| A claim for prospective profits of the business at a stand on the bankrupt's premises on breach of a lease by the bankrupt cannot be proved. | 291 | |
| Tenants were put into bankruptcy pending summary proceedings to eject them, and afterwards such proceedings were enjoined by the bankruptcy court. Held, that the landlord was not entitled to rent under the lease from the service of the injunction to the adjudication of bankruptcy. He was only entitled to a proper allowance; and the same rule applied after adjudication. | 1171 | |
| —Secured debts. | ||
| A creditor having two separate claims, who receives a preference on one of them alone, may prove the other. | 135 | |
| A secured creditor, proving as unsecured creditor, in ignorance of his privilege, may amend his proof. | 1297 | |
| A creditor from whom the assignee has recovered property conveyed to him as a preference, with reasonable cause to believe the debtor insolvent, cannot prove his debt. | 280 | |
| There can be no surrender of a preference under section 23 after there has been a recovery of the property by the assignee under section 35 or section 39. (Act 1867.) | 280, 287 | |
| An adjudication against the validity of the lien of a mortgage is a recovery by the assignee, within the meaning of the statute. | 280, 287 | |
| The amendment of June 22, 1874, to section 39, was not retroactive as to cases which, though commenced since December 1, 1873, had passed to an adjudication prior to June 22, 1874 | 287, 135 | |
| —Set-off. | ||
| A petitioner in involuntary bankruptcy, whose petition is dismissed with costs, cannot set off his debt against the costs. | 1025 | |
| A claim against the bankrupt purchased before the filing of the petition, but with full knowledge of the insolvency, and with intent to use the claim as a set-off, is available in voluntary proceedings. | 732 | |
| —Procedure. | ||
| Proof of debt in a foreign country can only be taken before one of the officers named in Rev. St. $ 5079, and not before a consular agent. | 1171 | |
| A register need not file a deposition for proof of debt taken and certified to before another register, which does riot appear to him to be in conformity with law, but should adjourn the issue into court, under section 4 (Act 1867.) | 777 | |
| Proof of debt founded on a promissory note, must set forth the consideration of the note, and whether any payments have been made on it. | 777 | |
| Omissions and errors held no ground for withdrawing the proofs, but held that the creditor should be allowed and required to amend the same. | 1030 | |
| The objections to the claim of a creditor will be considered as admitted where he fails to appear and submit to an examination under an order therefor. | 988 | |
| A judgment rendered against the bankrupt in a state court, from which he has appealed before the filing of his petition, is conclusive on the presentation of the same as a debt. | 397 | |
| Proceedings by the creditors on the bankrupt's appeal will be stayed pending the bankruptcy proceedings. | 397 | |
| —Expunging proofs. | ||
| The court may refer to the register a petition of a creditor praying that the proof of claim of another creditor be expunged on account of matters occurring since the claim was proved. | 895 | |
| A claim may be expunged where proved after the determination by the district court, in a proceeding to which the creditor was a party, that he had received a fraudulent preference, and was disabled to prove any part of his debt. | 296 | |
| Payment of debts: Priority: Dividends. | ||
| Partnership assets must be applied to partnership debts, without reference to any disproportion between the interests of the individual partners therein. | 1015 | |
| Where there are individual creditors the partnership creditor must first exhaust the partnership fund, before resorting to the individual fund: otherwise he may resort to both funds. | 455 | |
| The “separate estate” of partners, under the act of 1867, means that in which each partner is separately interested at the time of the bankruptcy. | 1015 | |
| In proceedings against a firm which had been dissolved, and all the property sold to the continuing partner, who agreed to pay the firm debts, held that section 36 applied, even though there was no joint property. | 805 | |
| The assets of the firm become the separate property of the continuing partner, where, in good faith and for valuable consideration, they are transferred to him on the dissolution of the firm. | 805 | |
| Individual notes of the continuing partner, given for goods sold to the firm, may be proved against his separate estate. | 805 | |
| A United States revenue officer, paying to the government the amount of a dishonored check received by him from a government debtor, is entitled to be subrogated to the rights of the United States against such debtor. | 1217 | |
| Section 28, Act 1867, does not operate to give to the five classes of creditors therein named any priority over secured creditors. | 1297 | |
| Under the laws of New Jersey, landlords and factory operators are entitled to-pro rata payment of one year's rent and one month's wages, respectively, as secured claims; neither being superior to the other. | 1297 1356 | |
| Examination of bankrupt, etc. | ||
| The petitioner for a decree is deemed a bankrupt from the time of his application, and he may be examined before a commissioner prior to the adjudication. | 134 | |
| It is the duty of the creditor, and not of the bankrupt, to see to the appointment of the time and place for his examination. | 624 | |
| After an examination pursuant to an order has been commenced, the order will not be vacated, on motion of the bankrupt, because not founded on an affidavit. | 1218 | |
| A bankrupt who has surrendered himself to the commissioners, and whose examination is not closed, although the 42 days have expired, will not be committed for want of bail. | 560 | |
| No notice need be given the bankrupt of the examination of a witness called by the assignee. | 425 | |
| The examination of a witness called by the assignee may be proceeded with, with out reference to the examination of the bankrupt on behalf of the creditors. | 425 | |
| Counsel for the assignee may act as attorney for the creditors. | 433 | |
| Whether the bankrupt should be allowed to consult counsel upon his examination must be determined by the register according to the circumstances of each particular case. | 872 | |
| The bankrupt is to be examined and cross-examined like any other witness. | 427 | |
| The bankrupt may be cross-examined by his own counsel. | 97 | |
| It is proper to ask the bankrupt questions tending to show that, within a short time after filing his petition, he had money in his possession not acquired by the transaction of any business subsequent to such filing. | 1219 | |
| A witness cannot be compelled to answer as to the original consideration for a negotiable bond issued by the bankrupt, where the creditor is a bona fide holder for value. | 278 | |
| The register has no right to pass upon the competency, materiality, or relevancy of a question. The practice before him is analogous to that before an examiner in chancery. | 427 | |
| The register will pass upon questions objected to, and, exceptions being taken, will, at the close of the testimony, entertain motions to strike out answers or admit excluded questions and certify the questions to the court. | 432, 1179 | |
| — Certifying questions to court. | ||
| Pending decision on a question adjourned in the court under section 4, Act 1867, it is not necessary to adjourn further proceedings in the matter. | 427 | |
| A certificate by a register stating a question objected to on an examination, and that he excluded the question, is not a “special case,” under section 6, Act 1867 | 427 | |
| Issues of law cannot be raised by objection to or exclusion of a question on an examination before a register. (Act 1867, § 4.) | 427 | |
| Costs: Fees: Disbursements. | ||
| Register's fees for the custody of the proceeds of goods sold by custodians at retail. | 776 | |
| The marshal's expenses for keeping of property, in order to be taxed as costs, must be shown to be just and reasonable, and to have been actually paid by him. | 1025 | |
| Where the assignee removes the bankrupt's goods from a leased store without making any sales therein, and without having actual or constructive possession there of, the estate is liable only for use and occupation as a place of storage. | 1079 | |
| Discharge—Proceedings to obtain. | ||
| The certificate of conformity by the register is not conclusive upon the court. | 833 | |
| Due notice of the appointment of the assignee is not essential to the debtor's discharge. | 624 | |
| Where the right to discharge was barred by limitation, under the act of 1867, prior to the amendatory act of June 22, 1874, the ninth section of the latter act does not remove the bar. | 1026 | |
| Where discharge was barred by limitation prior to the act of 1874, the bankrupt could not avail himself of the less stringent provisions of the latter act by alleging inability to procure the assent of sufficient creditors as an excuse for not applying for discharge under the old act. | 1029 | |
| The bankrupt is not entitled to his discharge unless assets have come to the assignee's hands amounting to 30 per cent. of all claims proved at any time before the final hearing of the petition for discharge. | 833 | |
| In determining the right to a discharge, the value of the bankrupt's assets at the time he filed his petition is to be considered. The fact that they were subsequently sold at a less value will not prejudice the right to a discharge. | 540 | |
| A bankrupt member of a firm which indorses notes of a third person used by him in purchasing outstanding claims against the firm is not liable as a principal debtor, within the statute requiring the assets to equal 50 per cent. of the claims proved, etc. | 778, 780 | |
| None of the contingent liabilities mentioned in section 19 can be regarded as liabilities of a principal debtor, within section 33, until they have been put in judgment, or undergone some other change than merely becoming absolute and fixed, in contra distinction to being contingent. | 778 | |
| An indorser does not become liable as a principal debtor by the mere fixing of his liability as indorser. (Act 1867, § 19.) | 778 | |
| — Proceedings in opposition. | ||
| Creditors who have not proved their claims cannot oppose the discharge. | 431 | |
| A creditor may come in at any time before the hearing of the petition for a discharge, to prove his claim and file objections. | 833 | |
| Copartnership creditors, being entitled to the individual assets of one copartner, who has no individual creditors, may oppose his discharge. | 122 | |
| The district court has discretion to enlarge the time for entering appearance and filing specifications in opposition, as well after as before the expiration of the time allowed by the rule. | 421 | |
| Objections filed against the decree of bankruptcy cannot, without an express order at the time, be continued and employed against the application for a discharge. | 639 | |
| Strict diligence will be enforced in supporting opposition to a discharge. | 639 | |
| Until the bankrupt has made full and sufficient disclosure, the assignees or creditors cannot be required to specify objections, or definitely abide by objections which have been specified. | 812 | |
| The only remedy of a bankrupt, where a majority of his creditors file their written dissent to his discharge, is to demand a trial by jury. | 921 | |
| Creditors are entitled to a jury trial where they allege that the bankrupt, being insolvent, and in contemplation of bankruptcy, had made a fraudulent preference, without previously specially praying a jury trial. | 88 | |
| Separate depositions made by bankrupt partners in an equity suit brought by the assignee against them and others held inadmissible against each other. | 290 | |
| Proceedings in a suit against third persons held inadmissible as evidence against the bankrupts in proceedings for a discharge. | 290 1357 | |
| One who appeared as counsel in an equity suit brought by the assignee against the bankrupts and others, held, could be compelled to testify as a witness for the creditors in proceedings in opposition to the discharge. | 290 | |
| —Acts barring. | ||
| If a tradesman kept true accounts of his business, and his books show how much he has drawn out for personal expenses, it is immaterial if he kept no account of his personal expenses. | 1252 | |
| A discharge will be refused for the failure to keep a cash book, notwithstanding other books were kept by a skillful clerk. | 624 | |
| It is no objection to a discharge that the second and third general meetings of creditors were not held at the expiration of three months and six months, respectively, from the date of the adjudication. | 624 | |
| A debt owing by the petitioner in the character of an auctioneer, contracted before the passage of the bankrupt act (1841), will not bar a discharge as to other debts. | 872 | |
| Discharge denied where bankrupt, with knowledge of his insolvency, took, for a note against a relative, property which be came exempt under the state laws. | 122 | |
| A fraudulent preference, which will pre vent a discharge under section 29, is defined in such section and in section 35 without reference to section 39, Act 1867 | 734 | |
| The question of intent to give a preference is not conclusively decided by showing a known insolvency, though it may be inferred from such insolvency, in the absence of controlling evidence. | 734 | |
| The transfer to creditors of stocks of goods and real estate after the debtors' pa per had gone to protest, and some of their establishments were seized for alleged violation of the internal revenue laws, held fraudulent preferences. | 940 | |
| Payments of rent and living expenses monthly by a person who had ceased to be a trader, and was living on his salary as a clerk, held not fraudulent preferences. | 734 | |
| A fraudulent preference, given by one member of a co-partnership without the knowledge, authority, or consent of his co partner, does not bar a discharge to the latter. | 122 | |
| —Scope and effect. | ||
| The debt of an auctioneer held to be one of a fiduciary character. (Act 1841) | 872 | |
| The discharge will release a judgment under which the body of the debtor was taken in execution, and a bond for jail liberties given, before the bankruptcy proceedings were commenced. | 825 | |
| Prohibited or fraudulent transfers. | ||
| A security given out of the usual course of business is valid where the creditor did not know of the insolvency of the debtor, or have reasonable cause to believe him in solvent. | 155 | |
| Contemplation of insolvency is not “contemplation of bankruptcy,” within the meaning of the act of 1841 | 803 | |
| A judgment cannot be assailed unless the creditor had notice of a prior act of bankruptcy, or of the intention of the bankrupt to take the benefit of the act (1841.) | 803 | |
| The time of the entry of the judgment, and not that of the giving of the warrant of attorney to confess judgment, is to be considered, in determining whether the judgment is a fraudulent preference. | 873 | |
| An oral promise, made at the time the debt is contracted, to give security, if required, cannot be executed after the debtor has become insolvent. | 731 | |
| A request by the bankrupt of a creditor, on the giving of the mortgage in pursuance of a previous agreement to secure a pre-existing debt, to permit him to secure other creditors in such instrument, is notice of the existence of such creditors, and the bankrupt's inability to pay them. | 731 | |
| No fraudulent preference can be predicated upon a judgment which is a valid lien upon property under the bankrupt act. | 658 | |
| A levy upon the entire stock in trade of the debtor, with knowledge or reasonable cause to believe that he is insolvent, is a fraudulent preference, and the assignee is entitled to the proceeds of the sale. | 561 | |
| The holder of notes exacted small demand notes in substitution for older and larger ones, some of which had matured, as a condition for a further loan, but with a knowledge of the maker's insolvency, up on which the payee was enabled more easily to obtain judgment and seize and sell the debtor's property. Held, that the trans action was fraudulent and void. | 935 | |
| A request for small demand notes to cover matured paper, and other paper about to mature, and a further loan, held made with a knowledge of the debtor's insolvency. | 935 | |
| Notes given by a father-in-law on a sale of the stock in trade of his insolvent son-in-law were cashed by the father-in-law, and the proceeds paid to his son, as mortgagee, in discharge of a mortgage on the property of the wife of the insolvent. Held a fraudulent transfer. | 71 | |
| Suits and proceedings in relation to the estate. | ||
| The assignee has power to recover back property in all cases where a person has conveyed property contrary to the act, and is afterwards adjudged a bankrupt. | 280 | |
| The amendments of 1874 in reference to the rights of assignees to recover property transferred in contravention of the act do not apply to pending proceedings. | 135 | |
| After the lapse of 16 years a sale under a judgment will not be set as de at the instance of the vendee of the assignee in bankruptcy. | 803 | |
| Creditors of a debtor, upon whose execution his property has been sold after the making of an assignment for the benefit of creditors, must account therefor to an assignee in bankruptcy appointed in proceedings instituted within four months of the assignment. | 554 | |
| where an assignee for the benefit of creditors notifies a sheriff, who has levied upon the property, of his claim, he is not liable to account for the property sold on execution to a subsequent assignee in bankruptcy, where the assignment to him is subsequently set aside as in contravention of the bankrupt act. | 554 | |
| A petition against an alleged fraudulent transferee and his sureties in a bond for possession of goods seized by the marshal, who were not otherwise parties to the bankruptcy proceedings, where in substance a bill, may be remanded to the rules, and proceeded in as a bill in equity. | 574 | |
| Such suit will be considered to have been commenced when the petition was filed. | 574 | |
| In a suit by the assignee in involuntary proceedings to set aside a transaction as fraudulent, the court may refer the question of bona fides to a jury, where the bankrupt has not had the privilege of a jury. | 601 | |
| A party who has caused a deposition to be taken before a register to be used as evidence in a cause cannot thereafter object to such use. | 71 | |
| One purchasing a grain-storage receipt issued by an insolvent, milling company, without knowledge of the insolvency, and who is refused delivery of the grain on presenting his receipt, is entitled to set off the value of the grain thus converted, in an action against him by the assignee to re cover assets. | 1224 1358 | |
| Review. | ||
| Where the issue of bankruptcy is tried by a jury, errors of the court in the progress of the trial can be reviewed only by writ of error. | 254 | |
| The judgment of the district court de claring a composition final precludes further review by the circuit court. | 717 | |
| A petition for a revision by the circuit court of a final decree of the district court refusing a discharge may be entertained, although no proceedings were actually pending in the district court when the petition for revision was made. | 627 | |
| A petition filed 50 days after the making of a final decree refusing the discharge held not too late. | 627 | |
| The petition for revision must distinctly state in what the error consists. An allegation that petitioner has conformed to the provisions of the act, and is aggrieved because the prayer of his petition for discharge was refused, is not sufficient. | 627 | |
| Arrangement with, creditors. | ||
| The right of a creditor present at a composition meeting to an examination of the bankrupt is waived by moving for a vote. | 600 | |
| A resolution accepting a composition on condition that payment shall be guarantied by the giving of a satisfactory bond, in a penalty named, to a committee appointed by the creditors, will be confirmed. | 456, 942 | |
| A ratified composition confines a secured debtor to his security, and discharges the debtor from personal liability for the debt. | 1195 | |
| After the discharge of a debtor by re cording the resolution of composition, the court loses all control over his property, and cannot, by injunction, protect it from seizure by a secured creditor through the instrumentality of state courts. | 1195 | |
| BANKS AND BANKING. | ||
| See, also, “Bills, Notes, and Checks.” | ||
| A bank acting as a collecting agent, in the absence of special authority or usage, has no right to receive in payment anything but money. Payment by check is not complete until the money is received thereon. | 415 | |
| A bank acting as a collecting agent for plaintiff received a check in payment, procured its certification, and suspended the same day, having previously credited plaintiff with the amount. Held, that plaintiff was entitled to the proceeds of the check. | 415 | |
| BILLS, NOTES, AND CHECKS. | ||
| See, also, “Banks and Banking”; “Guaranty.” | ||
| What law governs. | ||
| The indorser of a bill of exchange is liable for damages according to the law of the place where the indorsement is made. | 322 | |
| Validity. | ||
| The Pennsylvania act of April 12, 1828, forbidding any person “or body corporate” to put in circulation bills, etc., of less than $5, but nevertheless giving a right of action to holders thereof, applies to municipal corporations. | 1305 | |
| The provision of said act giving a right of action on such instruments was not repealed by implication by the joint resolution of June 24, 1841 | 1305 | |
| Letter of credit. | ||
| A person who gives a letter of credit on himself, as an accommodation, becomes a surety or guarantor only for the payment of drafts drawn on him to the extent of the credit given, and in strict compliance with its terms. | 509 | |
| Indorsement and transfer. | ||
| A stranger who writes his name in blank on the back of a promissory note is presumed, as to subsequent holders, to be an indorser, and is entitled to all the rights of. | 1296 | |
| The indorsement of a negotiable note, as well as the note itself, purports a consideration. | 1274 | |
| An indorser on a note made and indorsed for the accommodation of a third person is not a cosurety with the maker, unless so specially agreed. | 16 | |
| The presentation by the maker of a note for discount is notice to the bank that the indorsement thereon is an accommodation indorsement. | 309 | |
| Where such indorsement is by a firm, the bank must ascertain whether it was duly authorized. | 309 | |
| An indorsement on a bill of exchange, “Credit my account,” is restrictive in character, and prevents further negotiability of the bill. | 149, 151 | |
| Such indorsement is sufficient to apprise subsequent indorsees of want of authority to transfer to them. | 149 | |
| The assignee of a note must use due dilgence, by prosecuting the maker to insolvency, or show some sufficient excuse for the failure, before he can hold the assignor liable. | 307 | |
| That the maker is a transient and unsettled person, without averring insolvency, is not sufficient to excuse the holder from using due diligence. | 307 | |
| Demand: Notice: Protest. | ||
| Demand on the day after the third day of grace is too late. | 553 | |
| Upon a note due 23d and 26th July, demand and notice after the 28th are too late, but demand and notice on the 27th is not. | 324 | |
| The holder of a foreign bill, protested for nonacceptance, must give notice to the in dorser as soon as possible, under all the circumstances, according to the usual course of communication. | 554 | |
| Release or discharge of indorser. | ||
| Giving time by indorsee to maker in con sideration of part payment, after obtaining judgment and issuing execution against him, discharges the indorser. | 1010 | |
| Actions. | ||
| The payee in the possession of a note may strike out an assignment which had been made merely for the purpose of collection, and sue in his own name. | 130 | |
| Where an assigned note has been lost, suit thereon can be brought only in the name of the assignee. | 130 | |
| A plea of duress by the maker of a note is bad, as against an indorsee, unless it avers notice of such duress by the latter. | 1274 | |
| Proof by the maker of a promissory note that it was fraudulently obtained puts the burden on the indorsee to show that he paid a valuable consideration. | 1271 | |
| Query: If a bill of exchange drawn in one state on a person in another is a foreign bill, and whether the protest of such a bill is good evidence. | 852, 855 | |
| The possession of a bill of exchange by the drawee is prima facie evidence that he has paid all those who could claim against him thereon, and the indorser is a competent witness in a suit by the payee against the drawer. | 851 1359 | |
| BILLS OF LADING. | ||
| See, also, “Admiralty”; “Affreightment”; “Carriers”; “Sale”; “Shipping.” | ||
| The detention of the vessel by quarantine officials is no excuse for failure to deliver the goods at the wharf as stipulated in the bill of lading, where such goods are permitted to be removed. | 297 | |
| Where the shipowners refused to deliver such goods, the expense of removal from the vessel by the consignee may be offset against the freight. | 297 | |
| The master has no power to charge the vessel or her owner by signing a bill of lading for goods which are not on board. | 869 | |
| A person who is in possession under a contract to purchase cannot authorize the giving of such a bill of lading. | 869 | |
| Bills of lading signed by the master be fore the goods are on board operate on tie goods as received, as against the shipper and master, by way of relation and estoppel. | 707 | |
| Bills of lading issued at different times for wheat not then delivered become con currently operative as the wheat is placed on board, and, in the absence of appropriation by the shipper, where only a part is shipped, bona fide holders are entitled to the pro rata quantity called for by their bills. | 707 | |
| The holder of a bill of lading has a remedy in admiralty, where the goods are not delivered, either against the master or the owners or the vessel. | 348 | |
| A bona fide holder of a draft drawn against goods shipped, with bill of lading attached, has a lien upon the goods in the hands of the consignee, to whom the con signor is indebted on general account. | 145 | |
| BONDS. | ||
| See, also, “Counties”; “Municipal Corporations”; “Principal and Surety”; “Railroad Companies.” | ||
| A bond issued by an individual, under seal, with coupons attached for semiannual interest, payable to bearer, and secured by a mortgage of real estate to trustees, is a negotiable instrument. | 278 | |
| The coupons of coupon bonds payable to bearer are negotiable, though not by them selves negotiable in form. | 1341 | |
| Coupons cut from coupon bonds may be declared on without in any way declaring on the bonds themselves. | 1341 | |
| BOTTOMRY AND RESPONDENTIA. | ||
| When a bond provides for no marine interest or marine risk, and its condition is a mere pledge of a vessel to secure a debt and simple interest, it is not a bottomry bond. | 298 | |
| Where the bond is given by the master a necessity therefor must be shown. | 1 | |
| The master can make a valid bottomry only under circumstances of great distress, and when he has no other means of repairing. | 508 | |
| The master cannot make a valid bottomry where one of the owners resides at the port where the bond is given. | 1 | |
| A consignee who has ample funds to the credit of the vessel cannot take an hypothecation from the master, unless the owner has directed him to appropriate them to an other purpose. | 1, 508 | |
| CANALS. | ||
| The canal corporation may permit water to be drawn through its canal for mill purposes, where neither the public use nor any private right is thereby injured. | 860 | |
| CARRIERS. | ||
| See, also, “Affreightment”; “Bills of Lading”; “Charter Parties”; “Shipping.” | ||
| The carrier may limit his common-law re sponsibility by special contract with the shipper. | 267 | |
| The shipper is bound by a limitation of the carrier's liability, where it is plainly written in a printed blank used as a bill of lading, where he accepted the same without objection, though he neglected to read it. | 267 | |
| The master of a vessel may lawfully re fuse to deliver to the consignee goods which, having been attached on his vessel, are carried to the port of consignment under an agreement with the sheriff that they should be returned. | 879 | |
| CERTIORARI. | ||
| The writ will not lie to bring up proceedings of justices of the peace under Act Md. 1793, c. 43, against tenants holding over. | 313 | |
| CHARTER PARTIES. | ||
| See, also, “Affreightment”; “Bills of Lading”; “Shipping.” | ||
| The tender and refusal of a new cargo, after repairs to a vessel, so injured by fire as to necessitate unloading the first cargo, entitles the charterer to treat the voyage as broken up, and to demand the first cargo without payment of freight. | 1117 | |
| CHATTEL MORTGAGES. | ||
| See, also, “Bankruptcy.” | ||
| Articles purchased to supply the place of articles sold by a trustee in a deed of trust, conveying certain articles to secure certain creditors, are not protected by the deed un less so stipulated therein. | 409 | |
| Citizen. | ||
| See “Aliens”; “Civil Rights;” “Constitutional Law”; “War. | ||
| CIVIL RIGHTS. | ||
| The civil rights act of April 9, 1866, was intended to protect against legal disabilities and legal impediments, and not private infringements of the rights secured, through prejudice or otherwise, when the laws are impartial and sufficient. | 965 | |
| The civil rights bill, while not intended to enlarge the privileges and immunities of white citizens, furnishes additional guaranties and remedies to secure their enjoyment. | 649 | |
| CLERK OF COURT. | ||
| The certificate of the clerk of the United States district court is only evidence as to copies of papers and orders in his office or the absence of such papers and orders. | 373 | |
| Fees of, on continuance of a case in equity. | 134 1360 | |
| The clerk of the circuit court of the District of Columbia may have an attachment for the nonpayment of his fees. | 222 | |
| COLLISION. | ||
| See, also, “Admiralty”; “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | ||
| Nature of liability—Contributive fault. | ||
| Inevitable accident occurs when a party charged with the offense could not possibly prevent the collision by ordinary care, caution and skill. | 1065 | |
| The breaking of fastenings in a tempest is not a case of vis major where the master had warning and sufficient opportunity to protect the vessel. | 933 | |
| Faulty management of one vessel does not excuse want of proper care and skill of the other. | 1065 | |
| Rules of navigation. | ||
| Rules of navigation on the Chicago river. | 958 | |
| Act N. Y. April 12, 1848, requiring steamers navigating the East river to keep to the middle of the stream, will be enforced in the admiralty courts. | 798 | |
| It being the custom, in navigating the waters of the Chesapeake and Albemarle, when two boats are about to enter a narrow channel at the same time, for the ascending boat to stop below until the descending boat has passed through, held, that a vessel disregarding it was liable for a resulting collision. | 1337 | |
| The district court for the Eastern district of Pennsylvania adopts, without limitation, what it supposes to be the rule of the English trinity house for avoiding collision. Rules stated. | 1138 | |
| Special emergencies or positions of vessels may allow and even require a deviation from the general rule or usage. | 1052 | |
| On discovering an approaching vessel a steamer will be held in fault for changing her course in ignorance of the true course and position of the former. | 962 | |
| Between steam and sail. | ||
| Steamers meeting sailing vessels are al ways considered as having the wind free, and are bound to keep away. | 1141, 1052 | |
| The duly of steamers to keep out of the way of sail vessels does not absolve the latter from the exercise of the most vigilant caution. | 798 | |
| A steamer is solely in fault for a collision with a sail vessel which she saw in good season, where the latter held her course. | 79 | |
| Vessels moored, etc. | ||
| The mooring of a bark by a single ⅞-inch chain at a pier in the North river, in the winter season, held negligence. | 933 | |
| Steamer held liable for injuries caused by the breaking of the fastenings of a canal boat by the current from her propeller, which she set in motion without notice to the canal boat while moored in a slip. | 324 | |
| The presumption is against the vessel which comes into collision with another at anchor in a proper place. | 541 | |
| A vessel at anchor in a thoroughfare on a dark night, under the maritime law is bound to exhibit a light. | 323 | |
| A steamship is prima facie liable for running into a schooner anchored at night with the proper lights up. | 1277 | |
| A vessel lying at anchor in the main thoroughfare at the mouth of the Mississippi will be held, in fault for a collision with a vessel which drifted against her in the cur rent on the wind dying away. | 987 | |
| A brig which comes to anchor too near a schooner is liable for a collision with the schooner, where the brig drags her anchor on being fouled with another vessel at anchor, though she was not at fault for the first collision. | 541 | |
| Tugs and tows. | ||
| A tug descending a river about a mile wide, with tows astern on long lines, held in fault for damage to one of them by collision with an anchored vessel, for not passing to leeward, where lay three-fourths of the navigable water. | 1181 | |
| River and harbor navigation. | ||
| A terry boat is culpably negligent in running on a dark night, through a crowded harbor, relying solely upon a defective compass. | 323 | |
| Speed: Fogs. | ||
| The speed of the steamer must be so regulated that she may be under control, and a collision may be avoided, after the presence of the sail vessel is ascertained. | 327 | |
| A steamer will be held in fault for running 7½ knots an hour, in a crowded thoroughfare, in weather so thick and hazy that a light which came suddenly into view was supposed to be half a mile off, but was in fact, so near that though the engines were immediately reversed the collision occurred. | 962 | |
| A tug is in fault which, in a crowded thoroughfare, like the Chicago river, proceeds at the rate of over five miles an hour. | 629 | |
| Steamer held in fault for running six or seven knots an hour, on a boisterous and dark night, 15 miles off Sandy Hook. | 325, 327 | |
| Seven knots an hour in a dense fog, off the east end of Long Island, held an immoderate speed. | 340 | |
| A steamer traveling seven knots an hour in a dense fog, off the east end of Long Islnnd, held in fault in not stopping immediately upon hearing the fog horn of a schooner whose position she did not clearly locate. | 340 | |
| Lights: Signals, etc. | ||
| The failure of the schooner to show a torch, held not a contributive fault, where the steamer's lookout saw the schooner at least as early as the torch ought to have been shown. | 350 | |
| A sail vessel, seeing a steamship approaching in a direction from which her regulation lights are not visible, will be held in fault in not indicating her presence to the steamship by showing a visible light. | 962 | |
| A failure to answer a second signal, where the approaching vessel indicated by her answer to the first signal that she would not give way, will not justify the signaling vessel in proceeding as if the other had yielded her course, though the latter is in the wrong place and on the wrong course, and she must proceed cautiously. | 958 | |
| Particular instances of collision. | ||
| Between schooner and sloop, where latter was held solely in fault for failure to have a light. | 1349 | |
| Between sail vessels beating down the East river on the same tack, caused by the one in advance luffing to avoid a ferry boat, where the collision was considered an in evitable accident. | 762 | |
| Between steamer and schooner off the coast of New Jersey, where the latter was held in fault, having failed to prove a change of course by the schooner. | 701 | |
| Between steamer and brig in the Atlantic Ocean, where the latter was held solely in fault for failure to hold her course. | 942 | |
| Between steamer and sail vessel near Cape Ann, where the latter was held in fault for not keeping her course. | 1052 | |
| Between steamer, running as a ferry boat, and schooner on the Kennebec river, where the former was held in fault for not keeping away. | 351 1361 | |
| Between bark and steamer off the coast of Ireland, were the former was held in fault for not exhibiting a visible light, and the latter was also held, in fault for too great speed. | 962 | |
| Between steamboat and schooner, where the steamboat was in fault for want of proper lookout, and because no proper measures were taken after the schooner was discovered. | 1138, 1141 | |
| Between a ferry boat and a sloop anchored in the Hudson river, inside the piers, in a fog, where both were held in fault, the ferry boat for being far out of her course, and the sloop for failure to maintain a watch. | 1125, 1126 | |
| Between steamer and schooner in thick weather off Sandy Hook, where the former was held in fault for too great speed and want of a careful lookout, and the latter was held equally in fault for failure to sound a fog horn. (Reversing 325.) | 327 | |
| Procedure. | ||
| Query. Whether a vessel engaged in an illegal employment can maintain an action for an injury received from another vessel by collision. | 351 | |
| Claim of seamen for a loss of their effects by the collision held not stale, where they filed libels, but delayed to issue process for five years, during pendency of an appeal on a libel by the vessel owners, where the corporation claimant continued to own the vessel libeled. | 326 | |
| The owners of a cargo of a vessel sunk in a collision need not be made parties to the suit by the owners of a vessel against the other vessel, for damages by the collision, to enable the court to render a decree ad justing the losses. | 340 | |
| A foreign vessel in collision with an American schooner off the east end of Long Island may set up the failure of the schooner to show a torch light, as required by the act of congress, as a fault, on a libel by the schooner for collision. | 340 | |
| To recover damages, libelant must show that there was no want of ordinary care and skill in the management of his vessel, and that the injury resulted from the sole fault of the other. | 1065 | |
| A vessel in fault for failure to comply with a rule of navigation has the burden of showing that the fault did not contribute to the collision. | 340 | |
| Neglect of a sail vessel under way in a fog to sound a fog horn being established, she must show affirmatively that the horn, if blown, could have produced no effect. (Reversing 325.) | 327 | |
| On a libel for injuries to a sail vessel in collision with a steamer, the defense that the former changed her course must be established by a preponderance of evidence; it is not sufficient that the evidence creates a doubt. | 130 | |
| The burden of proof on the steamer to show that the sail vessel changed her course, where set up as a defense, is not sustained where no satisfactory conclusion as to the real state of the facts can be arrived at from the evidence. | 701 | |
| Rule of damages. | ||
| The measure of damages for a vessel sunk is the price a prudent owner, wishing, but not compelled, to sell, would reasonably expect to get at public or private sale, using proper measures to avoid undue sacrifices. | 1277 | |
| Division of damages. | ||
| Where the court is satisfied that both vessels were in fault, but is unable on the evidence to find the specific faults of each, the case is one of inscrutable fault, and the damages may be equally divided. | 1065 | |
| Where both vessels are in fault, the aggregate damages and costs will be equally divided. | 323 | |
| Where, in a case of mutual fault, one vessel is sunk, the damages will be apportion ed, and the owners of the sunken vessel must bear half the loss of the cargo and of the seamen's effects. | 340 | |
| COMMON LAW. | ||
| There is no principle of the common law which prevades the Union, and exists independently of the laws of the states. This rule is found as adopted and modified by the laws and judicial decisions of the respective states. | 915 | |
| Compositions. | ||
| See “Bankruptcy.” | ||
| COMPROMISE. | ||
| A compromise agreement must, to constitute a good defense to an action on contract, be binding on both parties, and operate as a satisfaction of the contract. | 1071 | |
| CONFLICT OF LAWS. | ||
| See, also, “Bills, Notes, and Checks”; “Limitation of Actions.” | ||
| Principles of the lex fori discussed and examined by Story, J. | 362 | |
| The law of the state where the contract originated and was to be performed is the law of the contract, and will be enforced by the federal courts. | 915 | |
| An assignment of a note in one state to an unauthorized banking association there of gives the assignee no right to sue in the state where the note is payable. | 1272 | |
| CONGRESS. | ||
| See, also, “Habeas Corpus.” | ||
| Congress has power to protect officers making arbitrary arrests and imprisonments, where the writ of habeas corpus is suspended, by passing laws indemnifying them or declaring them not liable to legal proceedings. | 1235 | |
| CONSTITUTIONAL LAW. | ||
| See, also, “Civil Rights”; “Statutes.” | ||
| A law or ordinance reviving a claim already barred by the statute of limitations is unconstitutional as interfering with vested rights. | 751 | |
| A dedication by a proprietary of a plot of ground to general public use will not prevent the building thereon of municipal buildings under legislative permit. | 246 | |
| Statutes of Pennsylvania giving the state a lien on the debtor's property for balances on settlement of public accounts confirmed by the supreme executive council held not unconstitutional. | 677 | |
| The Pennsylvania statutes providing for the sale of lands of John Nicholson in satisfaction of the liens of the state, and the proceedings under them, are not unconstitutional. | 677 | |
| Section 1 of the fourteenth amendment applies to white as well as colored people, and is intended to protect them in their privileges and immunities, as citizens of the United States, against the action as well of their own state as of other states in which they may happen to be. | 649 1362 | |
| Such privileges and immunities do not consist merely in being placed on an equality with others, but embrace all the fundamental rights of a citizen of the United States, as such. | 649 | |
| The right to pursue any lawful employment in a lawful manner is a fundamental right, and an act granting an exclusive privilege to carry on certain business with in certain limits is unconstitutional. | 649 | |
| A grant of an exclusive right by a state to carry on a slaughterhouse business for several miles in extent in and around a certain city cannot be sustained under the right of the legislature to pass license laws and police regulations and to grant exclusive rights for the exercise of public franchises. | 649 | |
| A law authorizing a county to subscribe for building a railroad which runs beyond the county does not, by placing a burden on each freeholder, violate the contract of the patent issued to him by the state for his lands. Neither is such a law void as a violation of the fundamental principles of “republican government” | 1341 | |
| The charter of a private corporation is a contract within the meaning of the provision prohibiting impairing the obligations of contracts. | 970 | |
| The repeal of a charter of a corporation does not of itself violate or impair the obligations of any contract which the corporation has entered into | 922 | |
| A mere license to draw lotteries which is not inseparable from the essential functions of a corporation, but which has been acted upon, and under which rights have vested, cannot be withdrawn by the legislature to the prejudice of such rights. | 970 | |
| A charter of a lottery company for a certain number of years, with a grant of the monopoly of drawing lotteries for the expressed purpose of making the business a source of revenue to the state, cannot be repealed. | 970 | |
| The federal court will interfere to defend the franchises of a corporation from invasion, though disguised in form, and to be effected through state officers clothed with statutory power. | 970 | |
| A statute for refunding state bonds declared that the new consolidated bonds should be used for no other purpose, and that the act authorizing them was a con tract with bondholders making the exchange. Held, that a subsequent act authorizing payment of consolidated bonds to general creditors of the state violated the obligations of the contract and was void. | 1288 | |
| A bill by a holder of the consolidated bonds to enjoin the state officers from issuing consolidated bonds to the state's general creditors is not a suit against the state within the meaning of the eleventh amendment. | 1288 | |
| An action in a federal court to compel state officers to comply with a contract of the state by the enforcement of its laws is in effect an action against the state, which is prohibited by the eleventh amendment of the federal constitution. | 1261 | |
| The constitutional prohibition against suing a state will not authorize a court of equity to compel state officers to levy a tax to pay state bonds. | 1261 | |
| There is nothing in the constitution of the United States forbidding states or counties to borrow money and give proper securities. Such securities are not bills of credit within the meaning of the constitution. | 1341 | |
| Act Va. 1874, prohibiting persons other than citizens of Virginia from taking or planting oysters in the waters of the state, on pain of forfeitures and indictment, is unconstitutional as denying equal privileges. | 1345 | |
| CONTINUANCE. | ||
| Continuance granted where plaintiffs filed a new count to their declaration to which no plea had been entered. | 372 | |
| Continuance granted where plaintiffs abandoned a commission to take testimony abroad, in which defendant filed cross in terrogatories, and sought to prove the same facts by another witness. | 372 | |
| The pendency of another suit in the state court is no ground of continuance of a suit in the circuit court of the United States when it appears to the court that the subject-matter and parties are not the same. | 898 | |
| The case will not be referred to a master to inquire whether the subject-matter and parties are the same, where it appears from an inspection of the pleadings that different questions are raised. | 898 | |
| It is no ground of continuance that the case depends upon the local law which has not been construed by the state court, as in such case the federal court may properly determine the true construction of the statute. | 898 | |
| CONTRACTS. | ||
| See, also, “Assumpsit”; “Constitutional Law”; “Sale”; “Vendor and Purchaser.” | ||
| Occasional insanity, arising from intemperance, is not sufficient to set aside a contract. | 457 | |
| Patented machines for condensing and moulding peat into convenient blocks for fuel, though of grossly overestimated value, yet, being of some value when operated under the most favorable circumstances, a contract for their exclusive use is founded upon a consideration. | 125 | |
| A contract for the purchase or sale of cotton for future delivery is valid unless it be affirmatively shown that neither party intended a delivery, and that the contract should be performed by the payment of differences. | 254 | |
| A promise by a person for whom a vessel is built under contract to pay for materials and labor is without consideration where made after the vessel is finished. | 389 | |
| But where the owner advances money during the construction, and takes a secret assignment of the contractor's interest in the vessel, thus enabling him to secure credit, such subsequent promise will be held to have been founded upon a good consideration. | 389 | |
| The taking by a creditor of negotiable paper from the shipwright, in ignorance of the transfer, will not impair his right to proceed against the assignee. | 389 | |
| A woman keeping prostitutes for gain cannot recover from them for board and lodging. | 1215 | |
| Under a contract to deliver goods, putting them on board a vessel and transmitting bills of lading vests the property in the consignee, though the bill of lading does not arrive. | 1008 | |
| Time may be made of the essence of the contract by the parties. | 844 | |
| Under a contract providing for completion of certain work on a specified date, and for payment in installments, the contractor may quit work after default in payments, and recover for the value of the work actually done. | 214 1363 | |
| The court will not reform a contract for the running of a horse race, so as to permit the recovery of a stipulated penalty for failure to run the race. | 308 | |
| An agreement to do work to the “full satisfaction” of the other party does not authorize it to arbitrarily rescind the contract. | 214 | |
| COPYRIGHT. | ||
| A translation from the original Hebrew, of the Pentateuch, is subject to copyright. | 396 | |
| A combination, in a new form, of materials taken from common sources will be protected by copyright. | 26 | |
| A provision of a state constitution that all judicial decisions shall be free for publication by any person is not repugnant to the provision of the federal constitution in relation to copyrights. | 604 | |
| Laws N. Y. 1850, c. 245, providing that “the copyright of any notes or references made by the state reporter” to any reports of the decisions of the court of appeals shall be vested in the secretary of state, for the benefit of the people, is not inconsistent with the constitutional provision that all judicial decisions shall be free for publication by any person. | 604, 612 | |
| Under such provision, the reporter is entitled to copyright in the syllabi and the statement and arguments of counsel prepared by him, but not in the statements of facts which form the basis of the decisions reported. | 604, 612 | |
| A copyright in the original work of a state reporter of judicial decisions, who is paid a salary for such work, may be taken in the name of the secretary of state, for the benefit of the people, and the exclusive right of publishing such copyrighted matter may be vested in a publisher under contract with the state. | 604, 612 | |
| A copyright obtained by a person for whom literary matter has been prepared gratuitously is valid without a written assignment. | 26 | |
| The editor of a subsequent edition is entitled to a copyright on his notes and additions, where they can be clearly separated from those of a previous edition, but where they cannot thus be separated he cannot use them without violating the copyright of the former notes. | 26 | |
| The notice of copyright in a subsequent edition of a book need not specify the date of the original copyright in addition to the date of the subsequent one | 26 | |
| Copyright only secures to the owner the exclusive right of multiplying copies. | 26 | |
| Where the owner of the copyright of a book agreed with one who prepared annotations therefor not to use the same in sub sequent editions, arid that such author should make such use of them as he saw fit, held, that the use of the same without the author's consent in a subsequent edition was an infringement. | 26 | |
| The result and not the intention at the time of doing the act complained of determines the question of infringement. | 26 | |
| The editor of a subsequent edition of a copyrighted book cannot borrow citations from annotations in the previous edition, though the extracts are not copied, and the notes to which they are prefixed or appended are not otherwise objectionable. | 26 | |
| A limited use of a copyrighted book may be made by a subsequent writer, but it is not necessary that the larger part of the book should be copied, to constitute an infringement. | 26 | |
| If so much is taken from a copyrighted work that its value is sensibly diminished, or the labors of the original author to an injurious extent appropriated by another, it is sufficient to constitute infringement. | 26 | |
| In a suit for infringement of the copy right of a chart or compilation from common sources, the only question is whether defendants have used the plan, arrangements, and illustrations of complainant's work as the model of their own book, with colorable alterations and variations only, or whether their work is the result of their own labor, from common sources of knowledge. | 25 | |
| Long acquiescence in the infringement, or culpable negligence in seeking redress, will prevent relief in equity. | 26 | |
| Coincidence of errors furnishes the strongest proof of copying. | 26 | |
| An equity suit for infringement will be referred to a master to examine as to the nature and extent of the infringement, though infringement has been established on the principal hearing. | 26 | |
| Where the case is a proper one for an injunction, the court will order it at the time the decision on the merits is announced, where the piracies are few and of a character easily determined without reference to a master; otherwise, where the charges require extended examination. | 26 | |
| Equity will not interfere by injunction when the amount copied is small and of little value, if there is no proof of bad motive. | 26 | |
| Where notes are partly original and partly copied the former may be published if they can be distinguished and separated: otherwise, the whole publication will be restrained. | 26 | |
| Where the pirated matter is so mixed with the original materials that the two cannot be separated the injunction will go against the whole. | 26 | |
| Temporary injunction to prevent performance of a comedy drama entitled “Round the World in Eighty Days,” denied. | 238 | |
| CORPORATIONS. | ||
| See, also, “Banks and Banking”; “Counties”; “Constitutional Law”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers.” | ||
| The original certificate or articles of association need not be filed in the office of secretary of state, under a Rev. St. Ind. c. 60. A copy is sufficient. | 787 | |
| The legislative repeal of a charter, where the right of repeal is reserved therein, or by general statute, cannot be reviewed by the courts unless the power is exercised so wantonly and causelessly as palpably to violate the principles of natural justice. | 922 | |
| The legislature may appoint a trustee to take the assets and manage the affairs of a corporation whose charter has been repealed. | 922 | |
| The legislature has the power to appoint a trustee to take the assets and manage the affairs of a corporation pending an investigation to determine whether the charter should be repealed, where the power of repeal is reserved in the charter. | 922 | |
| Construction of resolution of repeal of charter containing recitals of fact and designating judges to pass upon certain questions. | 922 | |
| An indorsement of a note by the president of a corporation to a director will not pass title where the by-laws require indorsement by the secretary. | 125 | |
| A corporation is bound to use proper diligence to protect every one from unauthorized transfers of its stock, and is liable for loss sustained by reason of the negligence of its officers therein. | 1040 1364 | |
| Purchasers or pledgees of stock are not bound to look beyond the certificate to ascertain the validity of the transfer. | 1040 | |
| Under a general law limiting stockholders' liability to unpaid balances due on shares, and a charter providing that balances over 40 per cent. shall not be called for unless with the assent of three-fourths of the stockholders, a stockholder is not liable to a creditor until his balance over 40 per cent. has been called for by a vote of three-fourths of the stockholders. | 968 | |
| A creditor of a corporation may maintain a bill to prevent an injury to the corporation, without affirmatively showing that the corporation has refused to take measures to protect itself. | 922 | |
| COSTS. | ||
| Costs in admiralty are in the sound discretion of the court, to be exercised according to settled practice and in furtherance of justice. | 1060 | |
| In admiralty as well as in common law cases costs are given to the prevailing party. | 298 | |
| In the circuit court of the United States, if the sum for which judgment is to be entered is less than $500, plaintiff is not entitled to costs. | 239 | |
| Where the question as to the liability for injuries in a collision was novel the court refused to award costs. | 324 | |
| Where a tender of a certain sum as salvage is refused, and the same sum is decreed to libelant, he is chargeable with his own costs subsequent to the tender, and, generally, with the owner's costs also. | 1060 | |
| Where, on the face of a libel, the court has jurisdiction, and lack of jurisdiction is only disclosed by plea and evidence, costs may be awarded to defendant. | 1016 | |
| A resident of Alexandria suing in Washington must give security for costs. | 1003 | |
| A New York corporation having its principal office in the Southern district of New York must give security for costs when it sues in the Northern district of New York. | 1170 | |
| Costs are not taxable except under the act of 1853, which abolished all previous laws on the subject. | 1137 | |
| Practice as to costs and charges where several parties intervene in admiralty for separate interests. | 960 | |
| COUNTIES. | ||
| See, also, “Bonds”; “Railroad Companies.” | ||
| An order of the board of county super visors, when in the form prescribed by law, properly signed and countersigned, will be presumed to be correct. | 1132 | |
| An order by the supervisors upon the treasurer, in proper statutory form, is a county liability, and no presentment, demand, and notice of dishonor are necessary. | 1132 | |
| Where counties are, by statute, subject to suit, the judgment or decree to operate with like effect as suits between individuals (Act Mich. 1846), a bill in equity will lie to satisfy a judgment against the county by subjecting bonds and mortgages which cannot be reached by execution. | 1137 | |
| Under such a statute, an execution will issue against a county. | 1137 | |
| Coupons. | ||
| See “Bonds.” | ||
| COURTS. | ||
| See, also, “Admiralty”; “Bankruptcy”; “Clerk of Court”; “Equity”; “Judges”; “Justices of the Peace”; “Maritime Liens”; “Removal of Causes.” | ||
| In general. | ||
| Courts of justice may take jurisdiction of an action of ejectment for the recovery of land in the possession of an officer or agent of the government which claims title. | 162 | |
| Comparative authority of federal and state courts: Process. | ||
| The circuit court of the United States cannot issue an injunction to stay proceedings in a state court which has sustained a law in violation of Const. U. S. Amend. art. 14, and has attempted to enforce it. | 649 | |
| The federal circuit court cannot stay a suit in equity brought therein, or refuse jurisdiction, on the ground of the pendency of a prior suit in the state court between the same parties for the same cause. | 898 | |
| Property in possession of a state court is exempted from the process of the federal courts. | 492 | |
| A receiver appointed by a federal court who has previously been appointed in a state court of an adjoining state is not subject to the jurisdiction of the state court as to the property out of the state. | 249 | |
| A federal court will not enjoin railroad receivers appointed by a state court from illegally discriminating among shippers. Redress should be applied for in the appointing court. | 1340 | |
| Federal courts—Jurisdiction in general. | ||
| The jurisdiction of the courts of the United States depends exclusively on the constitution and laws of the United States. | 660 | |
| The equity powers of the federal courts are such only as are conferred by act of congress and those judicial powers possessed and exercised by the high court of chancery in England at the time of the formation of our constitution. | 905, 915 | |
| Powers not judicial, exercised by the chancellor in England as the representative of the king's prerogative, are not possessed by the circuit courts. | 905 | |
| The national courts have exclusive jurisdiction to enforce maritime liens. | 1204 | |
| The federal court may stay proceedings in the state court which have not been commenced before the jurisdiction of the former attached. (Rev. St. § 720.) | 970 | |
| The federal courts will dismiss a suit at any time when want of jurisdiction appears. | 1278 | |
| —Grounds of jurisdiction. | ||
| A federal circuit court cannot take cognizance of a trespass committed on lands lying without the judicial district of the court, although the trespasser is a resident of and is found within the district, such action being local. | 660 | |
| An action cannot be maintained in the circuit court against joint contractors, where one of them resides in the same state with plaintiff. | 999 | |
| If one is not served with process he may enter his appearance and join with the other in a plea to the jurisdiction, and the suit will be dismissed for want of jurisdiction. | 999 | |
| The circuit court has no jurisdiction where part of defendants are citizens of the same state with complainant, although such defendants appear and answer with out objecting to the jurisdiction. | 751 | |
| But in such case, where the citizenship is disclosed by the bill, complainants may dismiss the bill as to the obnoxious defendants. | 751 | |
| The citizenship of the party, which is to give jurisdiction to the court, must be specially averred. | 130 | |
| Where the citizenship of the parties, as shown by the declaration, confers jurisdiction, it is not necessary to aver on the record that a nonresident of the district was served in the district. | 1278 | |
| A federal court cannot obtain jurisdiction of a foreign corporation by service of process on a general agent within the state, under a state statute providing that a foreign company doing business within the state shall file a consent that process may be served upon any agent in the state. | 338 1365 | |
| But see. | 141 | |
| A county is not exempt from suit in the federal courts. | 1341 | |
| A federal circuit court has jurisdiction of an action upon county orders when the sum in controversy and the citizenship of the parties are such as the statute requires. | 1132 | |
| A holder of county railway aid bonds may sue the county in a federal court, where the covenant is to pay the holder, although the bonds were originally issued to a railroad company in the same state with the county. | 1341 | |
| A federal court will not compel by in junction the officers of a state to execute the state laws. | 1261 | |
| A federal court has jurisdiction of a suit to restrain state officers from executing an unconstitutional state statute in violation of a contract of the state with complainants. | 1288 | |
| The circuit court has jurisdiction of a bill to restrain enforcement of an act repealing the charter of a lottery company and making it a penal offense to carry on the business, which charges that the repealing act impaired the obligations of a contract between the state and the company. | 970 | |
| Prior to Act Feb. 15, 1819, the circuit courts had no jurisdiction of a bill to restrain the infringement of a patent where both parties were citizens of the same state. | 697 | |
| ——Circuit courts. | ||
| The circuit courts cannot take cognizance of “cases arising under the laws of the United States,” jurisdiction of which is not conferred by an act of congress. | 697 | |
| Where congress has given an action at law in the circuit courts in certain cases, they do not thereby acquire jurisdiction so as to entertain in those cases a bill in equity not relating to an action at law. | 697 | |
| The chancery powers of the circuit courts are the same in those states where no courts having chancery powers exist as in other states. | 915 | |
| A suit against a corporation created by a state having more than one district may be brought in any district therein. | 763 | |
| ——District courts. | ||
| The district court has jurisdiction of a suit by an alien against the consul of his nation, residing within the district, to recover the amount of official fees improperly exacted. | 919 | |
| The district court has no jurisdiction in cases of libel for seizures made in another district from that where the proceedings are instituted. | 622 | |
| ——Administration of state laws. | ||
| A new right originated by a local law or usage may be enforced by the federal courts sitting within the state, by the exercise of a common law or chancery power, as the case may require. | 915 | |
| Where there is no adequate remedy at law under a local statute, the circuit court will give relief in equity. | 915 | |
| A local law authorizing a bill of discovery after return of execution nulla bona to subject the debtor's choses in action and equitable credits to the payment of the judgment may be enforced by the exercise of the chancery powers of the circuit court. | 915 | |
| The circuit courts of the United States give effect to the attachment laws of the state, and are bound by the construction placed thereon by the supreme court of the state. | 251 | |
| The federal courts will follow the latest decision of the state court construing a state statute, where they have not previously adopted another construction. | 898, 905 | |
| A decision of the supreme court of the state that a vote by a town to subscribe to railroad stock cannot be validated by a legislative act, if there was no law in force at the time authorizing it, will be followed by the federal court, although in conflict with a prior decision of the United States supreme court. | 394 | |
| A decision of a state supreme court, up holding the constitutionality of a state statute authorizing a county to subscribe to railroads, will be followed by the federal courts. | 1341 | |
| ——Procedure. | ||
| The common-law forms of pleading are no longer necessary in the federal courts in New York state. | 483 | |
| A pleading in a suit at law which is not authorized in a like suit in the state court will be set aside on motion. (Rev. St. § 914.) | 483 | |
| The federal circuit court for Indiana adopts as a rule of practice the Indiana statute requiring that the general issue which denies the execution of an instrument sued on must be sworn to. | 127 | |
| Local courts. | ||
| The circuit court for the District of Columbia has no jurisdiction of a bill to open an executor's account settled more than 12 years before in the orphans' court. | 1111 | |
| CREDITORS' BILL. | ||
| Equity has jurisdiction of a bill by a judgment creditor for relief against a conveyance of land with intent to defeat the lien of the judgment or delay its satisfaction, whether execution has issued or not. | 1249 | |
| The creditor who first institutes suit to avoid a fraudulent conveyance is entitled to relief, without regard to others having the same right who have not joined as parties. | 1249 | |
| The relief in such case is based on the fraud against a lien already attached or to prevent its attaching, and the remedy given in equity is as full as could have been obtained through the lien by execution. | 1249 | |
| CRIMINAL LAW. | ||
| See, also, “Arrest”; “Bail”; “Extradition”; “Habeas Corpus”; “Witness.” | ||
| Under an indictment for receiving stolen goods, statements by the prisoner to one who visited him in the watch house that he had received the goods, that he had better tell the truth, and disclosing where the goods could be found, held voluntary and admissible. | 1070 | |
| CUSTOM AND USAGE. | ||
| A custom is obligatory only when the law does not provide for the case. | 1092 | |
| CUSTOMS DUTIES. | ||
| Customs laws. | ||
| Prize goods brought in by government war vessels are liable to the payment of duties, as to the moièty belonging to the officers and crew of the capturing ship. | 639 | |
| Section 20, Act Aug. 30, 1842, though not repealed by Act June 30, 1846, applies only in cases where an article has not been specially provided for by the later act. | 928 1366 | |
| Rates of duty. | ||
| Gunny cloth and bags, imported and used as “cotton bagging,” are not dutiable as such, unless known by that name in the trade when the tariff act was passed. | 210 | |
| Pulverized waste or flock or shoddy is dutiable as “waste or shoddy” and not as a manufacture of wool. (Act July 30, 1846) | 312 | |
| Silk crapes held dutiable as “manufactures of silk not otherwise provided for” and not as “piece silks.” (Act 1864) | 929 | |
| Thread lace, made wholly by machinery, composed of linen and cotton, introduced since Act July 30, 1846, took effect, held dutiable as “thread laces,” in Schedule E. | 928 | |
| Invoice: Entry: Appraisal. | ||
| An invoice executed in triplicate in due form must be produced at or before each shipment to the consul at the place of shipment. Shipments in trains are subject to the same rules as shipments by water. | 740 | |
| The mingling of unlawful and lawful importations in the same invoice is ground of forfeiture of the whole importation. | 740 | |
| Duties deposited on the valuation in the invoice may be recovered back as to the excess where a fraud was committed on the importer by the manufacturer of the goods by invoicing them erroneously as to their grade. | 538 | |
| Sufficiency of protest in such case. | 538 | |
| The appraisers must adopt the real market value of goods abroad in specie, and not their value in a depreciated paper currency. (Act Aug. 30, 1842, 16.) | 784 | |
| An appraisement by part only of the public appraisers is valid unless protested against; and it is only necessary that those who certify to the appraisal should actually have made it. | 1234 | |
| An appraisement is conclusive as to dutiable value, when there is no protest as to its regularity, unless it is appealed from. (Act Aug. 30, 1842, § 17.) | 1234 | |
| A notice that the appraisement is not satisfactory, and the importers will give evidence “if desired,” is not sufficient to entitle them to a reappraisement. | 250 | |
| An appraisement becomes of no effect only when there is another appraisement. The remedy of an importer for the refusal of the collector to appoint a merchant appraiser is an action on the case. | 250 | |
| Payment: Protest. | ||
| A protest against the additional valuation made by adopting the market value of goods in a depreciated paper currency, and a claim to enter the goods according to the invoice and actual cost, is a sufficient protest, without a specification as to how the appraisement was made to exceed the true value of the goods. | 784 | |
| Violation of law: Forfeiture. | ||
| A mere intention to smuggle goods will not authorize the seizure of the vessel. | 404 | |
| The penalty for undervaluation attaches whether the importer makes the addition to his invoice or not. | 250 | |
| Merchandise brought in trunks with personal baggage not entered on the ship's manifest held property forfeited, as imported with an intent to defraud the United States. | 449 | |
| An actual intention to defraud is an essential question in a suit to enforce a forfeiture. (Act June 22, 1874.) | 449 | |
| Form of submission of such question to the jury. | 449 | |
| Customs officers. | ||
| Reappraisers may be sworn by a deputy Collector. | 250 | |
| A collector is not justified by the instructions of the treasury department in imposing duties not warranted by law. | 312 | |
| DAMAGES. | ||
| See, also, "Collision"; "Patents." | ||
| The measure of damages for failure to deliver an article sold is its value on the day the cause of action accrued. | 1203 | |
| The business occupation of plaintiff is a proper element for consideration in computing the damages sustained from personal injuries. | 796 | |
| $2,500 awarded in admiralty for permanent spinal injuries to a pilot, disabling him from following his profession. | 1303 | |
| DEDICATION. | ||
| A dedication by a release, upon condition that a pending suit concerning the premises shall be dismissed, does not take effect if the suit is not dismissed. | 1030 | |
| A dedication by release without covenants, by a mere occupant of public land, does not bind an after-acquired estate therein. | 1030, 1036 | |
| A dedication is not to be presumed, and if sought to be established by parol acts and declarations these should be of such public and deliberate character as to be generally known and not of doubtful import. | 1036 | |
| The exhibition or publication, by the proprietor of a town, of a map thereof, having certain spaces marked as streets and squares, is evidence of dedication. | 1030 | |
| Adoption by a town council of a map upon which a street is represented as being bounded by two parallel lines, so as to exclude a strip lying next to a river, is a solemn admission that such strip is not a part of the street. | 1036 | |
| DEED. | ||
| See, also, “Vendor and Purchaser.” | ||
| A father procured a deed to be executed to his son, but remained in possession, and 25 years thereafter surrendered the deed and procured a deed to himself. After the father's death the son recorded the deed to himself. Held, that he acquired no title thereunder. | 839 | |
| Where the boundary line can be run so as to comply with the conditions of the description, if it start from any place on a creek several thousand feet in length, the deed is inoperative for incurable uncertainty. | 245 | |
| Description in general terms in trust deed of lands granted under military warrant held sufficient. | 457 | |
| A deed of demised premises from a lessee for 99 years, renewable forever, at a certain rent, to the grantee, “his heirs, executors, administrators, or assigns, forever,” with general warranty, held to convey only the legal estate for the term of years, though the grantor then had an equitable title to the reversion. | 596 | |
| The ordinance of 1787, for the government of the Northwest Territory, regulates the form of conveyances of real estate, but does not apply to the transfers of equities, though conveyed under the form of a legal right. | 457 | |
| The recording of a deed conveying an equity only is not constructive notice under the statute. | 457 | |
| A deed not recorded until 26 years after its date is not recorded, within the Indiana statute, which makes a duly-certified copy evidence. | 839 | |
| A deed 30 years old is sufficiently proved by the testimony of one subscribing witness as to her own signature, where the other witness and the grantor are dead. | 860 1367 | |
| DEPOSITION. | ||
| One hour's notice of the taking of a deposition, where the adverse party Jived in the same village or town, held reasonable. | 265 | |
| A commission directed to A. and B., or either of them, authorizes the deposition of A. to be taken by B. | 851 | |
| In the absence of objection, and by leave of court, a deposition may be withdrawn from the files to procure an amendment of the magistrate's certificate. | 115 | |
| Though a deposition be taken under a stipulation waiving “all objections as to the form and manner of taking,” it must still be returned to court in all respects as pro vided by law. | 690 | |
| A deposition left for several months in the hands of defendant's attorney, and not placed on file until the morning of the trial, cannot be read. | 690 | |
| An ex parte deposition de bene esse is not admissible where the officer does not certify that the witness was “cautioned” as well as “carefully examined and sworn.” as required by the statute. (1 Stat. 73.) | 1119 | |
| A deposition taken de bene esse is admissible on proof that the witness is more than 100 miles from the place of trial at the time, though a subpoena has not been is sued for him. | 115 | |
| Depositions taken in another case will not be excluded where the objecting party was the real party in interest in that case, the subject-matter was the same, and he then had opportunity to cross-examine. | 1306 | |
| Discharge. | ||
| See “Bankruptcy” “Insolvency.”. | ||
| DISTRICT OP COLUMBIA. | ||
| Levy and collection of fines, and the powers and duties of the district attorney and the marshal in relation thereto, in the District of Columbia. | 439 | |
| Right of the levy court of Washington county, D. O., to statutory or discretionary fines, and its duties in relation to the district jail. | 439 | |
| As to the division of expenses and charges between the city and county of Washington. | 443 | |
| DOWER. | ||
| A widow is not dowable of a trust estate. | 319 | |
| As against a purchaser from the husband, dower will be set off out of that portion which has not been improved, by the purchaser, or, if that is not possible, out of the whole tract according to its value at the time it was sold by the husband. | 248 | |
| DURESS. | ||
| One signing notes as surety, without duress, cannot plead the duress of his principal. | 1272 | |
| EASEMENTS. | ||
| A grant of liberty “to dig a canal through the grantor's land” does not carry the ownership of the soil which is dug up and re moved. | 1143 | |
| EJECTMENT. | ||
| See, also, “Real Property.” | ||
| A stranger who obtains possession through a tenant by purchase of the land cannot dispute the landlord's title. | 763 | |
| A recovery may be had by one tenant in common against adverse claimants in possession, if he represent the better title. | 245 | |
| A plea that defendant is the owner of a perpetual right of way over the premises in controversy, under grant from the owners, is a sufficient statement of the nature and duration of such estate or interest in the premises. | 490 | |
| A demise may be extended after judgment in ejectment on notice to the persons in possession, so as to enable plaintiff to realize the benefit of his judgment. | 132 | |
| Where a demise has been extended after judgment without notice to the persons in possession, they are entitled to be heard on a writ of error coram nobis, or by motion. | 132 | |
| EQUITY. | ||
| See, also, “Courts”; “Creditors' Bill”; “Injunction”; “Pleading in Equity”; “Practice in Equity”; “Specific Performance.” | ||
| Where, in a deed of trust to secure a debt to A., the name of B. is inserted by mistake, equity will require the money to be paid to A. in the first instance, the mistake being clearly shown. | 1232 | |
| Equity will always refuse its aid against conscience where the demand is stale and there has been great negligence, though the right would not be barred at law. | 457 | |
| A delay to file a bill to restrain ejectment until the day preceding that set for the trial, where there was a change of counsel, held not such laches as would prevent the court entertaining the bill. | 21 | |
| Fifty years' delay by complainant's ancestor to enforce an alleged claim to property, which he was in a position to know was claimed and enjoyed by others, held inexcusable laches, barring a recovery. | 691 | |
| Where the trustee in a trust deed has re conveyed the property to the grantor under a decree of court, and afterwards died, his representatives are not necessary parties to a suit by the real beneficiary to obtain re lief by showing mistake in the deed of trust. | 1232 | |
| Fraud must be clearly alleged and satisfactorily proved in order to set aside a deed therefor after 20 years. | 319 | |
| ESTOPPEL. | ||
| See, also, “Municipal Corporations.” | ||
| A decree between a lot holder in Port land, Or., and a settler on the Portland land claim, declaring a certain strip of land to have been dedicated to the public, is not an estoppel in a suit by the settler's grantee against the town. | 1030 | |
| EVIDENCE. | ||
| See. also, “Appeal”; “Deposition”; “Trial”; “Witness.” | ||
| Judicial notice. | ||
| As counties are established by public law, their existence need not be proved. | 1132 | |
| Presumptions: Burden of proof. | ||
| An assignment of a military warrant under which a claim has been asserted for half a century may be presumed to be genuine and to have been made for a valuable consideration. | 457 | |
| Best and secondary. | ||
| The verdict of the jury on the trial of a claim by a third person to property levied on under execution cannot be proved by parol. | 81 1368 | |
| A record copy of a bill of sale of goods is not evidence, as such instrument need not be recorded. | 312 | |
| A certified copy of a patent for land by the recorder of a county is not evidence, as there is no law requiring patents to be recorded in the county. | 1136 | |
| Declarations and admissions. | ||
| Where a person understands the language but imperfectly, his declarations and admissions are not admissible against him, without clear proof of his understanding of what was addressed to him. | 933 | |
| Documentary. | ||
| Photographic copies of government departmental documents which cannot be removed without public detriment are admissible on proof of handwriting. | 116 | |
| Copies of judicial proceedings in bankruptcy in England 'held not admissible in evidence in Virginia, where not recorded in England. | 132 | |
| A mere copy of docket entries not substantially in the form of a judgment is not sufficient evidence of a judgment. | 414 | |
| A copy of the record of a deed is not evidence where the record is in one state and the lands lie in another. | 457 | |
| Certificates of public officers authorized by law to certify to certain facts are competent evidence of such facts. | 434 | |
| A certified copy of an assignment from the patent office is prima facie evidence of the genuineness of the original, and is admissible. | 142 | |
| The act of 1804 does not exclude every other mode of authentication of state records. A copy, when certified by the officer whose duty it is by law to keep the original on file in his office, is admissible. | 787 | |
| Copies of plaintiff's account books are not admissible. | 798 | |
| The plaintiff's or defendant's ledger proved to contain original entries is not admissible. | 414 | |
| Admissibility of deposition taken in another state before the superintendent of a city. | 557 | |
| A consul's certificate of any fact is not evidence between third persons unless expressly or impliedly made so by statute. | 434 | |
| Parol evidence. | ||
| Parol evidence of a declaration of gift is inadmissible to contradict a prior written declaration of trust. | 211 | |
| Competency: Materiality: Relevancy. | ||
| The return of a postmaster for a full quarter is evidence against his surety to show an average liability for a part of the quarter. | 81 | |
| A check by defendant to plaintiff or bearer, with the bank's canceling mark upon it, view not admissible to prove payment of the money, though defendant produced his check book with a corresponding memorandum. | 1017 | |
| Weight and sufficiency. | ||
| The rule as to comparative weight of positive and negative testimony does not apply where witnesses testify that a certain fact was notorious in a certain vicinity, while others residing there testify that they had no knowledge of it. | 512 | |
| The testimony of the clerk of respondent will overcome that of libelant testifying for himself. | 105 | |
| The delivery books of a cargo showing the order in which the goods were unladen is entitled to greater weight than the testimony of the crew. | 711 | |
| Where subscribing witnesses cannot be produced the instrument may be proved by testimony as to the handwriting of the subscribing witnesses and of the maker. | 338 | |
| EXCEPTIONS, BILL OF. | ||
| See, also, “Appeal.” | ||
| Only so much of the evidence as may be necessary to present the legal questions raised should be embodied in the bill of exceptions. | 740 | |
| The court will not sign a bill of exceptions purporting to contain all the evidence, when the parties do not agree that this is so, and the judge is not satisfied of it. | 1142 | |
| EXECUTION. | ||
| See, also, “Attachment”; “Bankruptcy”; “Exemptions”; “Garnishment”; “Judgment.” | ||
| An equity is not subject to execution. | 319 | |
| Land held under a special warrant in Pennsylvania may be levied upon under a fi. fa. and sold under a vend, ex.; but land held under an indescriptive warrant cannot be so levied upon. | 487 | |
| The marshal may amend his return after the return day, according to the truth of the case, by the data in his sales book. | 565 | |
| A stay of execution does not disturb the lien thereof. | 996 | |
| A sale of lands under an execution is sued upon a judgment which has been fully paid is void. | 225 | |
| An execution cannot be quashed at one term when not returnable until the next term. | 565 | |
| EXECUTIVE DEPARTMENTS. | ||
| The relation of the executive to the judicial departments stated in an opinion by Washington, J. | 758 | |
| Orders issued by the department of state in relation to such public measures as are not immediately connected with the duties of some other department are to be considered as orders of the president. | 758 | |
| EXECUTORS AND ADMINISTRATORS. | ||
| See, also, “Trusts”; “Wills.” | ||
| The orphans' court of Alexandria county, D. C, cannot, in any case, grant letters testamentary without security, unless the testator's visible personal estate is sufficient to pay all the debts. | 134 | |
| Under a joint administration bond one administrator is responsible for the other. | 502 | |
| One dealing with an executor is charge able with all the knowledge which he would have acquired by reading the will on the public records. | 1040 | |
| One dealing with an executor, with reasonable grounds to believe that he intends to misapply the money, is liable to the garty injured by the transaction. | 1040 | |
| A proposition by one executor alone to transfer stock long after the death of the testator without first obtaining an order of court should satisfy a man of common business experience of an abuse of trust. | 1040 | |
| Prior to the act of 1843 an executor in Maryland was authorized to sell or raise money on the property of the deceased in the regular course of his duty, and parties dealing with him were not bound to inquire into his object. | 1040 | |
| Under Act Md. 1798, an order of the orphans' court for the sale of stock by an executor would protect the purchaser. | 1040 | |
| A deposit, by an executor, of money belonging to the estate in the Confederate states depository, held a direct contribution to the government, rendering the executor personally liable on the settlement of the estate. | 751 1369 | |
| In such case the executor is also liable for interest, though he did not receive interest. | 755 | |
| Where an executor migh have collected the assets of the estate in good morey before the war, but failed to do so, he should not be allowed to discharge the balance found due from him by payment in Confederate treasury notes. | 751 | |
| The report of the commissioner made many years before on a reference of admintrators' accounts, though not acted upon, held prima facie evidence on a reference of the accounts of the surviving administrator. | 502 | |
| Mere lapse of time is not a bar to opening an executor's account, but long acquiescence in the settlement may make it against conscience to do so. | 1111 | |
| An administrator de bonis non, who is also executor of the surviving administrator, is personally liable where he fails for a long period of time to call to an account the agents of the former administrators. | 502 | |
| An executor, who was also trustee under a deed of trust from the grantor, held entitled to recover, as executor, money paid out under a decree declaring-the trust deed void as to a certain creditor. | 1179 | |
| Whether an executor will incur the expense of a suit against a known insolvent debtor is a matter within his discretion. | 1111 | |
| “Judgments, when assets,” rendered against administrators, held entitled to the same rank as between themselves which would belong to the particular instruments on which they were founded. | 502 | |
| EXEMPTIONS. | ||
| See, also, “Bankruptcy”; “Homestead.”. | ||
| Exemption laws passed after the commencement of a suit in the federal court will not apply to an execution therein. | 87 | |
| EXTRADITION. | ||
| See, also, “Habeas Corpus.” | ||
| Acts made criminal by the law of the demanding state, passed subsequent to the adoption of the constitution and the pas sage of Rev. St § 5278, are extraditable crimes. | 106 | |
| The warrant of the executive is conclusive evidence that the person named there in stands charged with the crime in an other state. | 106 | |
| A copy of the indictment authenticated in the manner provided by Rev. St. § 905, need not be produced to the governor before the issue of the warrant. | 106 | |
| No pleading is required after the traverse to the return. | 108 | |
| Though the prisoner denies that there is any indictment against him, and craves oyer of the same, respondent need not pro duce a copy of the indictment or of the requisition of the governor of the demanding state. | 106 | |
| On habeas corpus the question of the identity of the prisoner with the person named in the warrant is always open. | 106 | |
| The testimony of a detective that he was present at the session of the grand jury at which J. was indicted, and that the said J. there referred to was the prisoner, is sufficient proof of identity. | 106 | |
| FACTORS AND BROKERS. | ||
| See, also, “Principal and Agent” | ||
| A purchaser from a factor who sold in his own name cannot set off an unmatured claim against the factor's principal. | 1281 | |
| FALSE IMPRISONMENT. | ||
| Where an illegal arrest was provoked by gross and incendiary language, on receipt of the news of the assassination of President Lincoln, held, that such provocation must be taken into account in mitigation of damages. | 1235 | |
| A military officer causing the arrest of a civilian not amenable to military law is liable to enhanced damages for suffering him to be confined in a guard house with drunken soldiers, and to be compelled to labor in common with military culprits. | 1235 | |
| One illegally arrested by the commander of a military department, with good motives, and solely on considerations of the public peace and safety, is entitled to compensatory damages only. | 1235 | |
| FINDING LOST GOODS. | ||
| Evidence that libelant's whaling vessel was recently wrecked in the vicinity where a cask of oil was picked up at sea; that similar casks of oil were picked up and de livered to libelant; and that the currents were such as to drift casks in that direction from the wreck,—is sufficient prima facie proof of ownership as against the finder who conceals it. | 105 | |
| Forfeiture. | ||
| See “Customs Duties”; “Internal Revenue”; “Shipping.” | ||
| FRAUDS, STATUTE OF. | ||
| The statute does not apply so as to re quire a contract made in France to be evidenced by writing. | 1008 | |
| FRAUDULENT CONVEYANCES. | ||
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy”; “Creditors' Suit” | ||
| A transfer by the nominal owner to the creditor of the equitable owner in possession at the latter's request, where unaccompanied by possession, held inoperative as against the creditors of the equitable owner. | 812 | |
| Equity may order the assignee of real estate fraudulently conveyed to reconvey, so that an execution may act upon it; or may order him to convey it to an officer of the court, or otherwise, so as best to appropriate it in satisfaction of the judgment. | 1249 | |
| Where land was fraudulently conveyed before judgment, to prevent the lien there of from attaching, held, that equity might properly require the debtor and his as signee to join with the receiver in the suit, in making a conveyance to the purchaser at a sale directed by the decree; and that such conveyance would discharge all right of the debtor or of other judgment creditors to redeem the land. | 1249 | |
| The action of equity on the fraudulent grantor or assignee is only to the extent of supplying a remedy to the creditor suing. As to all others the assignment is unaffected. | 1249 1370 | |
| GARNISHMENT. | ||
| See, also, “Attachment.” | ||
| The cashier of a bank in which money is deposited is not liable as garnishee of the depositor. | 498 | |
| The attachment first served on a garnishee binds the property in his hands, though the marshal had prior attachments in his hands at the time. | 1281 | |
| GIFTS. | ||
| A parol promise to the trustee that he should have the property after the death of the cestui que use is not an absolute gift, and is revocable at pleasure. | 211 | |
| A condition precedent annexed to a gift cannot be repudiated and the gift taken un conditionally. | 1092 | |
| Evidence of a parol gift to a trustee, made after the declaration of trust, is re butted by proof that the cestui que use continued to take the profits of the trust property. | 211 | |
| GRANT. | ||
| See, also, “Deed”; “Mines”; “Public Lands.” | ||
| Right of derivative claimants of the Vigil and St Vrain grant, under Acts June 21, 1860, and Feb. 25, 1869 | 270 | |
| Alleged Mexican land grant rejected on the ground that it was fraudulent and an tedated. | 1080 | |
| History of the claim of a grant to John Law, of lands in the Louisiana purchase. | 17 | |
| An appeal to the district court from a decree of the board of land commissioners (Act 1851), confirming a claim under a Mexican grant in California, opens the whole issue for consideration, and further evidence may be produced. | 386 | |
| Claim to a Mexican land grant rejected, because the proof failed to establish that Josefa Martinez, claimant's assignor, was one of those in whose favor the so-called general title issued, or that sue occupied or cultivated the land claimed. | 614 | |
| As to the power of the commissioner of the general land office, relative to private claims to land and the issuing of patents therefor, under Acts July 4, 1836, June 14, 1860 and 1864 | 373 | |
| Under Act June 14, 1860, it was the duty of the commissioner of the general land office, before issuing a patent upon a survey, to see that the necessary publication had been made, to render the survey final, when not submitted to the district court. | 373 | |
| “Place of publication,” as used in such act, means the place where the paper is first given to the public for circulation. | 373 | |
| Sufficiency of notice published by surveyor general. | 373 | |
| The determination of the commissioner upon receiving a survey transmitted to him as published, as to the regularity and sufficiency of the publication, is conclusive, un less reviewed and corrected on appeal by the secretary of the interior. | 373 | |
| A commissioner of the land office has power, with the consent of the party in interest, who refused to accept the patent on the ground that it was erroneously located, and of defects in the proceedings prior to the patent, to recall the patent and order a resurvey. | 358 | |
| A personal delivery of a patent to a patentee is not necessary to the vesting of the title. | 358 | |
| A patent signed, sealed, and recorded takes effect from such time, and it cannot be recalled while en route to the local officer for delivery to the patentee, without consent of the patentee. | 358, 373 | |
| The acceptance of a grant where no personal obligation is imposed will be presumed in the absence of an express dissent, whenever the conveyance is placed in a condition for acceptance. | 373 | |
| Objections by the patentee to the survey of a confirmed Mexican land claim are waived by his acceptance of the patent. | 373 | |
| A patent valid on its face cannot be collaterally impeached in the federal courts in ejectment to recover the land granted by it. | 358 | |
| Courts will not restrain the issue of patents for land, but will relieve against fraud practiced to procure them. | 270 | |
| GUARANTY. | ||
| See, also, “Bills, Notes, and Checks”; “Principal and Surety.” | ||
| A guarantor is entitled to notice of the dishonor of notes whose payment is guarantied, and notice must be averred in a declaration on the guaranty. | 471 | |
| Averment that notice was given to the guarantor more than seven months after the note became due is bad on demurrer. | 471 | |
| Notice need not be given the guarantor where the payee is insolvent at the time the note becomes due. | 471 | |
| GUARDIAN AND WARD. | ||
| See, also. “Infancy.” | ||
| Infants cannot be prejudiced by misstatements or omissions of their guardian in his answer, and equity will decree according to the facts of the case. | 319 | |
| HABEAS CORPUS. | ||
| See, also, “Congress”; “Extradition.” | ||
| The president has no authority to suspend the writ of habeas corpus, except as authorized by congress, and the proclamation of September 24, 1862, so far as it attempts to do so, is void. | 1235 | |
| Congress is the exclusive judge of “when, in eases of rebellion or invasion,” the public service requires suspension of habeas corpus. It may suspend it generally, or in particular cases, or may commit the matter, within proper limits, to the judgment of the president. | 1235 | |
| An arbitrary arrest of a civilian by the commander of a department, of his own will and judgment, as necessary to pre serve the peace, is not justified by the act of March 3. 1863. authorizing the president to suspend the writ of habeas corpus, as specified, and the president's proclamation thereunder of September 15, 1863; nor by the act of May 11, 1866 | 1235 | |
| A federal judge has no power to issue habeas corpus for one imprisoned under a state indictment for murder. | 1251 | |
| Act Aug. 23, 1842, empowering federal judges to issue habeas corpus in certain cases, applies only to subjects of foreign states. | 1251 | |
| A federal court may issue a writ of habeas corpus where a person is indicted and imprisoned under a state law, which is void under the federal constitution. | 1345 | |
| A federal court has jurisdiction where the petition alleges illegal restraint under color of federal authority, although certiorari proceedings are pending in the state court to review a decision dismissing a writ of habeas corpus issued on the prisoner's petition. | 106 1371 | |
| On habeas corpus in a federal court, sued out by a prisoner held under a warrant of the governor as a fugitive from justice, it is not necessary that notice of the proceedings be given the attorney general of the state. | 106 | |
| HOMESTEAD. | ||
| See, also, “Bankruptcy.” | ||
| Obtaining an office judgment for rent by confession for a sum due as “recovered for debt” is a waiver of the specific lien for rent, and renders the judgment inferior, under the Virginia law, to the right of home stead. | 1110 | |
| HUSBAND AID WIFE. | ||
| A secret settlement by a woman on the eve of her marriage, and in contemplation of that event, is fraudulent and void against the husband. | 561 | |
| INDIANS. | ||
| Indians living in a state and doing business as merchants are responsible by the laws of the state for the payment of their debts. | 1057 | |
| Lands reserved to Indians by treaty, but with restrictions against conveying them except with the consent of the president of the United States, descend according to the laws of the state, and may be subjected to payment of debts. | 1057 | |
| INFANCY. | ||
| See, also, “Guardian and Ward.” | ||
| Acknowledgment, after maturity, of a debt contracted in minority, is not sufficient, unless the promisor was aware that he was discharged from the debt because of minority. | 1336 | |
| A contract for the sale of infant's estate, made by a mere volunteer, is void, and cannot be ratified by a court of equity. | 675 | |
| INJUNCTION. | ||
| See, also, “Courts”; “Equity”; “Patents.” | ||
| Proceedings, whether connected with crime or not, which tend to the destruction of property, may be enjoined. | 970 | |
| State officers proceeding under penal laws will be enjoined from interfering with the agents of a corporation for acts done by them in the exercise of rights conferred by a charter which is not subject to repeal. | 970 | |
| Equity will not enjoin a threatened trespass to real estate, unless the trespass be one going to the destruction of the substance of the estate. | 386 | |
| Equity may enjoin an action at law, based upon a registered deed, against the grantee in a prior unregistered deed, with notice of which the registered deed was taken. | 860 | |
| A party applying for an injunction to enjoin proceedings at law is not bound to confess judgment at law as prerequisite to obtaining relief. | 21 | |
| Proceedings at law prior to the judgment may be enjoined. | 21 | |
| It is not indispensable that a bill for an injunction should contain a prayer for discovery. | 21 | |
| Notice of the application need not be given. | 993 | |
| A mandatory injunction will not be grant ed upon an interlocutory motion. | 1261 | |
| The court will not except in a very clear case decide that an act of the legislature is invalid, on a motion for a provisional in junction. | 922 | |
| By the practice of the Third circuit, no money penalty is inserted in an injunction. | 1010 | |
| Where the writ was not tested until six weeks after the order awarding it, and not served until nearly a year afterwards, held, that a disobedience of the injunction should not be punished by attachment. | 1313 | |
| INSOLVENCY. | ||
| See, also. “Assignment for Benefit of Creditors”; “Bankruptcy.” | ||
| An insolvent found guilty upon allegations filed under the seventh section of the insolvent act of the District of Columbia will not be ordered into close custody if out on a prison-bounds bond. | 1268 | |
| A discharge relieves the debtor from liability for costs of a suit pending at the time. | 15 | |
| A discharge is available against a creditor not named in the list of creditors filed with the insolvent's petition. | 157 | |
| INSURANCE. | ||
| See, also, “Marine Insurance.” | ||
| The contract is not complete until the policy is delivered to and accepted by the insured. | 158 | |
| A policy enumerating certain articles, with figures indicating dollars placed opposite to each, does not constitute a valued policy. | 1071 | |
| Representations are made warranties by a declaration in the policy that the application is to be considered a part thereof, and that the policy is issued on the faith of the representation and shall be void if they are untrue. | 158 | |
| The fact that the application is signed by the applicant is prima facie evidence that the answers therein contained are his answers, easting the burden on plaintiff to show the contrary. | 158 | |
| The Missouri statute of March 23, 1874, declaring immaterial any misrepresentations made in procuring life insurance, un less the matter misrepresented actually contributed to the contingency on which the policy became payable, comprehends all statements, whether technical representations or warranties. | 1000 | |
| A mere local agent employed to solicit applications has no power, unless specially authorized, to waive conditions in the policy. | 158 | |
| A waiver of the condition prohibiting residence within certain latitudinal limits can not be inferred from a mere incidental conversation had on the street with the com pany's agent. | 891 | |
| The mere receipt of premiums while the insured resided within prohibited latitudinal limits cannot be taken as constructive notice to the company and a waiver of the prohibition. | 891 | |
| A provision requiring suit to be brought within six months after the “loss or dam age shall occur” means six months after ascertainment of loss by arbitration, where the policy forbids the bringing of the suit until after an award is made. | 437 1372 | |
| Rupture of a blood vessel while exercising with Indian clubs is “accidental” if something unforeseen, some involuntary movement, concurred with the use of the clubs to produce the injury; otherwise, however, if the exercise was taken in the ordinary way, without the interference of unusual circumstances. | 1254 | |
| If the rupture of a blood vessel necessarily resulted in the formation of abscesses and the accumulation of injurious substances in the lungs, from which death results, then the rupture was the proximate cause of death; otherwise, if an independent or latent disease was brought into activity by the injury. | 1254 | |
| In such case lie burden of proving that death was the result of disease is upon the party alleging it. | 1254 | |
| In determining whether the rupture of a blood vessel was the proximate cause of death, testimony showing the health of the insured from infancy is admissible. | 1254 | |
| Policy holders of a fire insurance company are only creditors of the corporation, and may maintain a bill in equity to pre vent an injury to the company. | 922 | |
| INTEREST. | ||
| See, also, “Usury.” | ||
| Under the Pennsylvania act of April 21, 1841, one suing upon a note providing for 20 per cent interest can recover that rate if suit is brought within one year from the issuance of the note. | 1305 | |
| INTERNAL REVENUE. | ||
| A tobacco manufacturer will be required to produce his books before the assessor, notwithstanding a criminal proceeding against him; but he will be allowed to object to the exhibit of any particular entry as tending to criminate himself. | 572 | |
| A tender, by a relative or friend of the owner, of a tax due upon property advertised for sale, is a sufficient tender, irrespective of rules of the tax commissioners as to its validity. | 147, 204 | |
| A formal offer, by a relative or friend of the owner, to pay a tax, where he went to the commissioners' office for that purpose, is not necessary where the commissioners decline to receive any tender unless made by the owner in person. | 147, 204 | |
| A judgment in an action for the penalty given by Rev. St. § 3318, is no bar to a criminal prosecution for the same offense. | 397 | |
| INTERNATIONAL LAW. | ||
| The convention of April 30, 1852, between the United States and the Hanseatic League, does not proclude an action in the admiralty courts of the United States by an American citizen for wages as seaman on board a Bremen ship. | 121 | |
| Intoxicating Liquors. | ||
| See “Territories.” | ||
| JUDGE. | ||
| See, also, “Courts”; “Justices of the Peace.” | ||
| Query, whether a federal district judge sitting as a circuit judge can issue the writ of ne exeat. | 782 | |
| A judge privileged from arrest is exempt from service of process in a civil suit when about to set out on his circuit. | 1126 | |
| A judge privileged from arrest while per forming his judicial duties may be served with summons in a civil action when at home and not about setting out on his circuit. | 1131 | |
| JUDGMENT. | ||
| Validity. | ||
| A judgment against the casual ejector is not authorized where the notice is defective because the tenants are not named therein. | 1196 | |
| A decree held void where neither party had any interest in the land whereby the court could obtain jurisdiction to make the decree. | 1030 | |
| Operation and effect. | ||
| The proceeds of the sale of an equitable title to land are equitable, not legal assets. | 15 | |
| A judgment against a railroad company in Ohio becomes a lien upon the road in the same manner as upon the land of a natural person. | 1099 | |
| The lien of a judgment of the federal circuit court in Pennsylvania is coextensive with the district, and is not confined to the county in which the judgment is rendered, as in the case of the local courts. | 791 | |
| The same rule obtains as to a judgment rendered in the federal circuit court for a district of Ohio. | 1099 | |
| A decree pro confesso settles no rights when not followed by a final decree. | 755 | |
| The causes of action are the same where the same evidence will support both. | 84 | |
| A verdict in assumpsit by three plaintiffs to recover for widening the upper and lower end of a street, finding defendant liable to pay for widening the upper end, will not bar a subsequent action by two of such plaintiffs to recover for widening the lower end of the street. | 84 | |
| A decree is conclusive with respect to the subject-matter on which it acts, but does not affect the rights of third persons not parties. | 1232 | |
| An unsatisfied judgment against one of two joint tort feasors is no bar to an action against the other. | 823 | |
| The verdict and judgment in a cause decided upon the statute of limitations adversely to plaintiff is no evidence of a want of consideration for a new promise in a subsequent suit upon the same cause of action. | 852 | |
| A judgment on the merits in a personal action is a bar to another action on the same claim, and between the same parties, though in a different form. | 84 | |
| A foreign decree, unappealed from, re fusing an injunction and dismissing a bill in equity to restrain the infringement of an alleged trade-mark, will bar a suit in this country for the same purpose by the same complainants against the agent of the defendant in a foreign suit. | 95 | |
| A foreign judgment does not merge the original cause of action and is no bar to an action founded on it. | 1146 | |
| Relief against: Opening: Vacating. | ||
| In a joint action against two, after one has confessed judgment, it is too late for him to move to vacate the same because the capias ad respondendum was not renewed and regularly returned non est inventus, at every term preceding the trial. | 1251 | |
| A judgment against the casual ejector may be set aside even after the expiration of the term. | 1196 | |
| Failure to give security for costs under a general rule of court is no ground for vacating a judgment. | 1196 | |
| Misapprehension of counsel as to what would be done at a given term of court is ordinarily no ground for vacating the Judgment. | 1196 1373 | |
| Habere facias issued on a default judgment against a casual ejector will be quashed at a subsequent term, and the judgment vacated, on affidavits showing that, by mistake, the clerk omitted to enter the tenant's appearance. | 1314 | |
| Satisfaction and discharge. | ||
| Payment to the judgment creditor before notice of an assignment of the judgment is valid. | 1103 | |
| Where the debtor hears rumors of an assignment of the judgment, not understanding who was the assignee, and applies to the assignee for information on that point, who declines to tell him, he may then safely pay the original judgment creditor. | 1103 | |
| A., B., and C, in that order, obtained judgments against D. A.'s judgment was paid by D, who procured its assignment to his hired man, and again caused it to be assigned to C, who had no notice of its payment, but who paid nothing therefor. Held that, as against B., C. was not a bona fide holder for a valuable consideration, and a sale under A.'s judgment was void. | 225 | |
| An agreement that part payment shall operate as full satisfaction is void. | 1103 | |
| Of different jurisdictions. | ||
| The jurisdiction of the court will be inquired into where the record of its judgment is offered in evidence in the court of another state. | 544 | |
| A defendant who was not within the jurisdiction, and on whom no notice was served, is not personally bound by the judgment. | 544 | |
| The judgment in a suit commenced by attachment where there is no personal appearance is of no validity beyond the jurisdiction and the property levied upon. | 544 | |
| Where the record of a foreign judgment shows the issuing of the summons and the return of service thereof by the sheriff upon the defendant personally, defendant cannot contradict the record by showing that he was not personally served. | *789 | |
| Where it appears from the record that process was served on defendant or that he appeared in the suit, the fact cannot be denied by plea. | 544 | |
| But the plea may show in what manner, whether by personal service or by attachment, notice is given, as its effect is not to contradict the record, but to limit its operation. | 544 | |
| JURY. | ||
| A juror cannot object to serve because he is an alien. | 560 | |
| JUSTICES OF THE PEACE. | ||
| A justice of the peace has no authority to bind out an orphan on a day when the or phans' court is in session. | 1172 | |
| Where process issued beyond the limits of the township is not within the exception of the statute limiting process to the town ship, it is utterly void, and no justification to the officer acting under it. | 98 | |
| LANDLORD AND TENANT. | ||
| Goods conveyed by the tenant to secure the payment of an accommodation note made by the landlord and indorsed by a third person are not subject to distress while the third person remains liable as indorser. | 16 | |
| Property distrained for rent may be transferred by the tenant to his creditors, subject to the lien for the rent. | 338 | |
| Sufficiency of pleas in bar of avowry of distress for rent due under a grant of a rent charge or annuity, setting up usury. | 720 | |
| LIBEL AND SLANDER. | ||
| A declaration for a libel, charging an at tempt to put two votes in a ballot box at a corporate election, must aver the by-law under which the election was held. | 1266 | |
| A jury trying a case of seditious libel are not concerned as to the constitutionality of the law (Act July 14, 1798), but are restricted to the question whether defendant published the writing, and with intent to make the government odious and contemptible. | 1183 | |
| LIENS. | ||
| See, also, “Admiralty”: “Bankruptcy”; “Maritime Liens”; “Mechanics' Liens”; “Shipping.” | ||
| A son improving his father's lands during the latter's life is entitled to no lien upon his father's death intestate; nor does payment of his father's debts give him' a lien. | 1266 | |
| LIMITATION OF ACTIONS. | ||
| See, also, “Ejectment”; “Equity”; “Maritime Liens.” | ||
| The statute of limitations of the state where the suit is brought, and not that of the state where the contract is made, may be pleaded in bar. | 362 | |
| The statute of one state is no bar to an action therein upon a note made by defend ant in another state, in which plaintiff has always resided. | 146 | |
| Heirs must bring their action under the limitation act of Kentucky of 1809 within 10 years after the decease of their ancestor, if at the time of the decease there be adverse possession. | 486 | |
| The statute of limitations of California, does not begin to run against a confirmed Mexican grant, finally located under Act June 14, 1860, until the patent issues. | 354 | |
| Where a right of action to recover land accrues during the minority of the owner, the statute of limitations of California does not begin to run until the owner attains majority. | 384 | |
| A grantee from the owner, after obtaining his majority, may maintain an action against a disseisor entering during the minority of the owner, at any time within five years after the disability terminates. | 384 | |
| The statute will not operate as against the claim of a decedent until administration granted. | 473 | |
| A bill in equity filed by legatees against the executor and other legatees to compel the settlement and distribution of the estate suspends the running of the statute. | 755 | |
| In equity the statute of limitation is regarded the same as at law. | 486 | |
| The cause of action upon a note payable on demand does not accrue until demand made, and where defendant removed from the state before demand the statute is no bar. | 146 | |
| The exception in favor of one who was under disability “at the time such right or title accrued” does not permit the tacking of disabilities. | 467 | |
| The fact that one of several coheirs is barred by the statute will not affect the right of the others who were under disability. | 467 1374 | |
| Where claims had still six years to run under the statute, without regard to a proviso in favor of nonresidents, the repeal of the proviso will be given effect as to the nonresident owners. | 473 | |
| A promise by a debtor to a bankrupt creditor, acting in behalf of the assignee of an account, to settle the same, is sufficient to take a suit thereon by said assignee out of the statute. | 96 | |
| A promise to pay in consideration of forbearance, when defendant should be able, is good, and is to be construed until he is able. | 855 | |
| A promise to pay in consideration of forbearance “for a short time” will not sustain the action. | 855 | |
| In assumpsit on a promise to pay if plaintiff would give time, the declaration need not aver that the promise was accept ed by plaintiff, where it was averred that time was given. | 855 | |
| A new promise varying the terms of the original contract on which the action is brought cannot be given in evidence. | 851, 855 | |
| A new promise, if conditional, cannot be given in evidence in a suit founded upon the old debt. | 851, 855 | |
| Upon a promise to pay when able, plaintiff must prove defendant's ability to pay. | 1336 | |
| On a promise to pay a bill of exchange when able, if plaintiff would give time, plaintiff is entitled to interest on the amount of the bill only from the time when defendant was able to pay, and not to damages. | 855 | |
| Lis Pendens. | ||
| See “Abatement and Revival.” | ||
| LOST INSTRUMENTS. | ||
| After great lapse of time, strict proof of a destroyed deed under which the parties claim may be dispensed with. | 457 | |
| LOTTERIES. | ||
| A person may be indicted under Act March 3, 1865, § 13 (amended July 27, 1866), for engaging in the business of a lottery dealer without having paid the special tax required by law, and, on conviction, be punished by imprisonment. | 550 | |
| The provisions of the internal revenue laws in relation to lotteries and taxes on the business of selling lottery tickets. | 550 | |
| MALICIOUS PROSECUTION. | ||
| In an action for maliciously conspiring to deprive plaintiffs of their slave, malice must be proved, and defendant may show probable cause, and want of malice. | 500 | |
| MANDAMUS. | ||
| Duty of county commissioners upon service of a mandamus execution in the collection and appropriation of funds for the payment of the judgment. | 989 | |
| MARINE INSURANCE. | ||
| Mere carelessness or unskillfulness of the master and officers of a vessel, in the absence of positive misconduct, or an express stipulation in the policy, does not relieve the insurer from liability for a loss caused thereby. | 418 | |
| The terms “carelessness,”, “unskillfulness,” and “misconduct” defined. | 418 | |
| A collision caused by negligence of the pilot is within the exception of loss caused “by the negligence of those in charge of the boat.” | 418 | |
| Where the right to abandon is condition ed upon it being ascertained that the recovery and repair of the vessel is impracticable, there is no right of abandonment where a vessel, valued in the policies at $27,000, is repaired, after being raised by a wrecking company, for $3,100 | 418 | |
| Separate losses on one voyage cannot be added together to make up a loss of 5 per cent., which is necessary under the policy to any recovery at all. | 1109 | |
| MARITIME LIENS. | ||
| See, also, “Admiralty”; “Affreightment”: “Bottomry and Respondentia”; “Charter Parties”; “Pilots”; “Salvage”; “Seamen”; “Shipping.” | ||
| The right to a lien. | ||
| The clerk of a steamboat, owning a half interest, has no lien for wages. | 786 | |
| There is no maritime lien for work and material used in the construction of a vessel. | 1204, 1260 | |
| No hen arises against a vessel, built under a contract with a shipwright, for materials and labors of third persons which enteral into its construction, where the full contract price has been paid according to the contract. | 389 | |
| An agreement by a charterer to pay all expenses is not an agreement to pay them in cash, and is not inconsistent with power in him to create a lien for supplies. | 1073 | |
| The clerk of a river steamboat has no power to bind her for a loan without authority of the master, but if the master assents thereto directly or impliedly a lien arises. | 1204 | |
| A lien arises for liquors furnished to a vessel for use in a bar as a part of a restaurant on the boat run for the benefit of passengers. | 833 | |
| Credit for supplies furnished in the home port is presumed to have been given to the owner or master, not to the vessel. | 1204 | |
| Supplies to a vessel represented and understood to belong to owners residing in another state are presumed to be furnished on her credit until the contrary is shown. | 1204 | |
| The place of enrollment is not conclusive as to the home port, and the actual residence of the owner may be proved by evidence. | 1204 | |
| Persons giving credit in good faith to a steamboat, as a foreign boat, for supplies and repairs, are not affected by the fact that she was made to appear a foreign boat by fraudulent conveyances. | 1204 | |
| But persons apprised of the real nature of such transfers, or fairly chargeable with knowledge thereof, can claim no benefit therefrom. | 1204 | |
| A port of another state from that in which the vessel is enrolled and registered, is, in the absence of special facts, a foreign port in respect to the creation of maritime liens. | 1107 | |
| Baltimore and Alexandria are not foreign to each other, within the rule in relation to the maritime lien for supplies and repairs in foreign ports. | 412, 413 | |
| To support a lien for supplies ordered by the master in a foreign port, it must be shown that the supplies were necessary and that some special exigency required their purchase on credit. | 1107 1375 | |
| Priority and enforcement. | ||
| Where a wharfinger has made an express personal contract with the shipowner he will not be given a priority of claim over a bottomry interest which previously attached. | 451 | |
| Waiver: Discharge: Extinguishment. | ||
| Query, whether a personal contract for wharfage, made with the shipowner, is a waiver of the wharfinger's lien. | 451 | |
| Lien, if any, in favor of a consignee of a vessel, for repairs and advances, held waived by the taking of a bill of exchange on the owners on 60 days' credit. | 298 | |
| A lien is not waived by the acceptance of a draft drawn by the clerk of a boat in payment of the claim, where the draft was never paid. | 786 | |
| The lien for supplies furnished in a foreign port continues as against bona fide purchasers and attaching creditors, without notice, only until the furnisher has had a reasonable opportunity to enforce it. | 539 | |
| The lien does not necessarily continue until the vessel has returned to the place at which the supplies were furnished. | 539 | |
| The purchaser of a boat sold by order of a state court takes her subject to all existing liens. | 1204 | |
| A maritime lien is equivalent to an ex press hypothecation, and all subsequent changes of title are subject thereto. | 1204 | |
| A collector's office, where bills of sale are matters of record, is the only place where persons dealing with the vessel may be presumed to search for information in regard to the title. | 1204 | |
| Liens under state laws. | ||
| Money advanced for custom-house fees and to procure a bond, or for commissions, gives rise to no lien under the New York statute of April 24, 1862, as these are not “necessaries.” | 1073 | |
| MASTER AND SERVANT. | ||
| Both the master who commands the doing, and the servant who commits the act of trespass, may be made responsible as principals, and may be sued jointly or severally. | 515 | |
| MECHANICS' LIENS. | ||
| Under Act March 2, 1833, the lien is lost in the District of Columbia after two years from the commencement of the building, unless action is commenced or the claim filed within three months after performing work or furnishing materials. | 1270 | |
| MILITIA. | ||
| Military power may be used to enforce discipline against persons who have been designated, by draft or otherwise, to per form military service, and have been law fully commanded to attend a military rendezvous. | 1225 | |
| A militiaman of a state duly called into the service of the United States under Act July 17, 1862, and who has disobeyed an order to attend a rendezvous, may be compelled by military force. | 1225 | |
| Militiamen of a state cannot be lawfully drafted into the service of the United States unless their names have previously been accurately enrolled. A person misnamed is not liable to the draft. | 1225 | |
| Acts 1792 and 1862 require enrollment in the militia of the states of all citizens between 18 and 45 years. Intervening legislation of Pennsylvania requires enrollment in her militia only of persons between and 45. Quaere, whether a draft in Pennsylvania which omits the names of persons between 18 and 21 is binding on the per sons drafted. | 1225 | |
| Judgment upon 10 days' notice cannot be rendered upon the bond given by the collector of militia fines. | 249 | |
| MINES. | ||
| Rev. St. § 2320, referring to veins and lodes in “rock in place,” does not apply to ore upon the top of a movable rock, covered only by loose material and debris. | 98 | |
| “Rock in place” means that the lode or vein must be inclosed by the fixed and immovable rock forming the general mass of the mountain. | 98 | |
| Under Rev. St. § 2320, the vein cannot be followed outside the surface lines unless it can be traced continuously from one claim to the other. If the mineral is not continuous, it must be ascertained whether there are continuous boundaries inclosing the vein. | 98 | |
| A vein or lode does not come within Rev. St. § 2320, if it lies horizontally. But if it departs from a horizontal position at all, the degree of departure is immaterial. | 98 | |
| There is a presumption of ownership in favor of every locator as to the territory covered by his location. | 98 | |
| As to tie work required of claimants of mines located before the passage of the act of 1872 | 629 | |
| Work done by strangers will not inure to the benefit of the claimant of a mine located before the passage of the act of 1872, where purchased after commencing suit to re cover the claim. | 629 | |
| It is not sufficient for a relocator under Act Colo. 1874, § 16, to run a tunnel into the claim from an old shaft upon an ad joining claim. | 629 | |
| MORTGAGES. | ||
| See, also, “Bankruptcy”; “Chattel Mortgages”; “Railroad Companies”; “Shipping.” | ||
| At common law, a mortgage for future advances and liabilities, made in good faith, is valid. | 239 | |
| Under Act N. H. July 3, 1829, a mort gage is void pro tanto, so far as it is in tended to secure payment of moneys or other things which were not contracted for, or the liability for which did not attach, at the time of its execution. | 239 | |
| A power of sale limited to a specified time is forever gone when not executed within that time. | 744 | |
| A power of sale in a mortgage is not, in Georgia, a power coupled with an interest, but is merely a collateral power, and it cannot be executed after the bankruptcy of the mortgagor. | 744 | |
| The bankruptcy of a subsequent mortgagee is no objection to the execution of the power of sale in a prior incumbrance. | 828 | |
| A mortgagee acquiring possession after the expiration of a lease made by the mortgagor to another, where the mortgage passes no title, estate, or interest to the mortgagee, will be considered a mere tenant at will or at sufferance. | 744 | |
| Such possession in connection with a power of sale in the mortgage will not create a power coupled with an interest. | 744 | |
| A mortgagee with, a power to sell cannot himself become the purchaser either in severalty, joint tenancy, or otherwise. A power given to an individual cannot be executed by selling the property to a firm of which he was a member. | 744 1376 | |
| A subsequent purchaser of the title acquired on a trustee's sale is not bound to look beyond the recitals in the trustee's deed. | 828 | |
| MUNICIPAL CORPORATIONS. | ||
| See, also. “Counties”; “Railroad Companies.” | ||
| In the case of adjoining corporations, a hack owner of one place need not obtain a license for driving within the limits of the other, where he charges nothing for the service beyond the line of his corporation. | 313 | |
| An act authorizing a city to issue bonds payable in 20 years gives authority to make them payable 20 years from the date of the act, though this is less than 20 years from the date of the bonds. | 1105 | |
| A municipal corporation cannot issue bonds for purposes not fairly coming within the ends for which such corporations are created without legislative grant of power either in express terms or by necessary implication. | 494 | |
| The issue of bonds to pay for land to be given to a foreign railroad corporation on which to establish and maintain its depot and machine shops is not authorized under a charter granting the power to provide for the construction “of a city hall, markets and other structures of public necessity and utility.” | 494 | |
| An issue of bonds without authority of law cannot be ratified without legislative sanction, nor will any acts of its officers or inhabitants estop the corporation from denying its authority. | 494 | |
| A town is not estopped, by having paid interest on its bonds for 10 years, from denying their validity, even in the hands of innocent purchasers, where there was no law authorizing their issue. | 394 | |
| Payment of interest on railway aid bonds for several years, and the election of commissioners to represent the stock received therefor, while the bonds are passing as negotiable paper, is an affirmance of the bonds in favor of a bona fide holder. | 1105 | |
| In a suit upon a municipal bond issued to a consolidated company in payment of a subscription to stock, the city is estopped to deny the corporate existence of the company or the validity of the proceedings for the consolidation. | 474 | |
| The city is liable for negligence in failing to require the owner of property facing on a narrow court to place guards around excavations made for admitting light at basement windows. | 796 | |
| A traveler in a narrow alley must exercise due care, considering the character of the place and the purpose for which it vas constructed. | 796 | |
| In an action against a city to set aside assessments for improvements as fraudulent, the burden of proof is on complainant to show that he and not the city was defrauded. | 74 | |
| NAVIGABLE WATERS. | ||
| See, also, “Canals”; “Riparian Rights”; “Waters and Water Courses.” | ||
| The Oconto river is, in contemplation of law, a navigable stream. | 262 | |
| The owner of a boom must use unusual diligence in keeping a passage way clear for other persons. | 262 | |
| NE EXEAT. | ||
| The writ cannot be issued unless the defendant designs quickly to depart from the United States. | 782 | |
| Negotiable Instruments. | ||
| See “Bills, Notes, and Cheeks.” | ||
| Neutrality Laws. | ||
| See “Prize”; “War.” | ||
| NEW TRIAL. | ||
| A new trial will not be granted for ambiguity in the charge to the jury, where the complaining party made no effort at the trial to have the point explained. | 740 | |
| A new trial will not be granted because the verdict is contrary to evidence as to one issue, where it is not contrary to the evidence applicable to another issue in the case. | 855 | |
| It is no ground for a new trial that the jury took out with them a deposition which was held inadmissible, where it was totally inapplicable to the count on which the judgment is given. | 855 | |
| A verdict will be set aside where the jury separated after the case was committed to them and before they agreed on the verdict. | 396 | |
| The action upon a motion for new trial must be considered as had on the day when the motion was filed, and judgment on a verdict for plaintiff will not be delayed be cause between the filing and the hearing defendant was summoned as plaintiff's trustee. | 837 | |
| OFFICE AND OFFICER. | ||
| See, also, “Army and Navy”; “False Imprisonment.” | ||
| An unconstitutional law will not protect from personal liability an officer acting thereunder. | 970 | |
| PARTIES. | ||
| Several defendants who claim separate tracts of land from distinct sources of title may be joined in the same suit under Act Ky. 1796 | 486 | |
| PARTNERSHIP. | ||
| See, also, “Bankruptcy.” | ||
| Where a joint adventure was in the management of one partner, and the other advised him to sell the cargo for cash or produce only, but he took bills on the French government, which were not paid, held that, his conduct being in good faith, he was not liable to the other partner. | 1143 | |
| A joint owner may advise as to the manner of sale of the cargo, but he has no authority to order; and he is pound by the acts of the managing partner done in good faith, though his advice is not followed. | 1143 | |
| A partner is not entitled to compensation for his services except by special agreement; nor can he exact compensation for services rendered after dissolution in respect to property in his hands, for he is then only a voluntary trustee entitled to actual charges and expenses. | 1147 | |
| A debtor to a partnership cannot be held as trustee for the several or joint debt of one partner. | 1177 | |
| Where a partnership between two brothers, made by parol in 1784, with an agreement that all their property should be in common, lasted until 1820, and was extended to numerous kinds of business, including the purchase of lands in various states, to which title was taken in the name of one or both, as the purchasing partner pleased, held, that the partnership was un limited; that all property acquired by either was partnership property; and that each was bound by the acts of the other, how ever disastrous, if done in good faith. | 1147 1377 | |
| The proceeds of a lot owned by one of the partners prior to the partnership, afterwards built upon with joint funds, and then sold and the proceeds used in the partnership business, must be considered as belonging to the partnership. | 1147 | |
| One of the partners having received a large legacy and applied it to the partnership business, without the knowledge of the other, and the money having been used for many years therein, held that it became partnership property. | 1147 | |
| A legacy to the wife of one of the partners held to have become partnership property, as, when received, it became the husband's property. | 1147 | |
| The understanding that no charge was to be made for family expenses held to extend to the expenses of minor children, but not to advances made them after they became of age. | 1147 | |
| Salaries paid to the children as clerks, after they became of age, held a charge against the partnership. | 1147 | |
| One of the partners, having desired at one time to dissolve the partnership, agreed to continue it if the other would make a will in his favor, but no time was fixed for making the will. One was made, however, but was afterwards revoked and destroyed. Held, that the revocation did not justify the other partner in dissolving the partnership, as a will pursuant to the agreement might still be made. | 1147 | |
| Lands bought by a commercial partnership, for partnership purposes, in equity stand on the same footing as personal property, whether title is taken in one or both partners. | 1147 | |
| Corporeal property of a partnership cannot be taken in execution to satisfy the several debt of one partner, except to the extent of any interest he would have after full settlement of accounts. | 1177 | |
| Upon a dissolution, one partner is always entitled to have partnership real estate sold, and the other cannot insist that it shall be simply divided between them. | 1147 | |
| A partnership creditor who knows that one partner has retired under an agreement that the other shall take the firm effects and pay its debts cannot, in equity, take a lien on the joint effects for new advances to the remaining partner, and thereby exhaust them, and hold the retiring partner for the joint debt. | 1267 | |
| Upon a dissolution, the court has jurisdiction to order a sale of partnership land outside the jurisdiction, for the order operates only on the parties, and the court can compel them to make conveyances. | 1147 | |
| After dissolution, neither party, by any note in writing, can bind the partnership, even for a debt contracted by it. | 762 | |
| Authority given the continuing partner “to settle all demands in favor of or against” the firm does not authorize him to give a note in the name of the firm. | 762 | |
| Under the Michigan statute authorizing separate compromises of partnership debts with individual partners, a partner who does not compromise is not liable to the creditor for more than the balance due him. | 1024 | |
| PATENTS. | ||
| Patentability. | ||
| Novelty and utility in an improvement are the only conditions requisite to a patent. | 1322 | |
| An invention must be “useful,” in contradistinction to frivolous and mischievous, but it need not be superior in all cases to the modes previously in use. | 1018 | |
| There can be no patent for a machine which remains an unsuccessful experiment. | 1321 | |
| Invention is any new arrangement or combination of old or new materials producing a new and useful result. | 1321 | |
| A long course of fruitless experiments to reduce a principle to practice is not an anticipation; but where a prior inventor has been using reasonable diligence to reduce his idea to practical use his right will be preserved, though he may not have attained perfect success. | 1306 | |
| On the question of novelty in a reaping machine, the inquiry is whether the prior machine was identical with plaintiff's, or whether the latter involves a new operation, and produces a new effect on the standing or tangled grain. | 1322 | |
| Prior contrivances which might by a little change have been made into the patented contrivance, though not so intended by the maker, will not defeat the originality of the invention. | 666 | |
| An improvement upon a machine, to constitute an invention, must be new and useful. | 1329 | |
| Who may obtain patent. | ||
| Between inventors, the first in time has a prior exclusive right to a patent. | 1018 | |
| Prior public use or sale. | ||
| Prior use for more than two years in a factory open to public inspection defeats an application. | 1001 | |
| Under the act of March 3, 1839, a patentee may make, vend, and use his invention within two entire years before applying for a patent without forfeiting his right. | 1322 | |
| Prior description or foreign patent. | ||
| A written description of a machine, with drawings, not made public, does not anticipate. | 1163 | |
| The independent invention and introduction into public use in this country of a machine previously patented in a foreign country will defeat an application by a second inventor of the same thing, under the act of 1836, as modified by the act of 1839 | 1001 | |
| Abandonment: Laches. | ||
| The mere fact of making, selling, or putting in public use, within two years prior to application, does not show an abandonment. There must be something more, indicating an intention to devote the invention to the public. | 1322 | |
| Experimental use of an invention made in public from necessity is not a public use, and is no evidence of abandonment. | 770 | |
| The imparting to others by the inventor of imperfect and crude descriptions, at a time when he did not have a complete conception of the invention, is no evidence of an intention to abandon. | 770 | |
| Concealment of an invention for five years after it is complete, even though it was never sold for profit, defeats an application. | 1001 | |
| Appeals from commissioners' decisions. | ||
| The entertaining by the commissioner of a motion to reconsider in an interference case, filed after the expiration of the limit of appeal, does not suspend the operation of the order limiting the time to appeal. | 566 | |
| Where an appeal in an interference case is dismissed after consideration of a protest duly filed by the office against entertaining it, because taken after expiration of the time limited, the appeal fee must be refunded. | 566 | |
| Under the act of 1836, the court, on appeal in interference, decides not merely the question of priority, but which or whether either applicant is entitled to a patent. | 1001 1378 | |
| The commissioner held to have properly refused to disturb the decision of his predecessor, upon vague and loose affidavits filed long after the rejection of the claim. | 626 | |
| Validity. | ||
| One cannot have two patents for the same process because for different purposes. | 1290 | |
| A patent may cover two or more inventions relating to the same machine; and an action for infringement of either may be maintained if they are claimed separately. | 142, 1290 | |
| A patent for an “improvement in trucks for locomotives” is not rendered invalid by the fact that the truck used was old and the invention was really an improvement in locomotives. | 763 | |
| A description so clear and full as to enable one skilled in the art to construct the machine is required—First, that the public may avail themselves of it at the expiration of the patent; and, second, that they may not ignorantly infringe it. | 1198 | |
| It is not enough that some very skillful artisan is able, from the specifications and drawings, to make and use the machine; they must be such as to enable persons of ordinary skill in the art to make and use the machine. | 571 | |
| The patentee must describe his invention with reasonable certainty. If an improvement on an existing machine, he must distinguish the new from the old, and confine his patent only to the new; otherwise the patent is void. | 1018 | |
| If an invention is definitely described so as to distinguish it from what was old, the patent is good, though not so full and clear that a person skilled in the art could construct the machine; unless the defect was intentional, for the purpose of deceiving the public. | 1018 | |
| Extent of claim. | ||
| The patentee is entitled to the exclusive use of his mechanical organization for all uses to which it can be applied, whether he originally contemplated those uses or not. | 1290 | |
| A description of one mode of practicing the invention does not exclude a method, different from it only in a single detail, which produces the same result and is distinctly within its object. | 893 | |
| The words “as specified” do not limit the claims to the particular mode of practicing the invention described in the patent. | 893 | |
| Reissue: Disclaimer. | ||
| Unfounded claims may be disclaimed in a reasonable time, and the patent will be good for the residue; but, if there is unreasonable delay, the whole patent is in operative. | 1329 | |
| A reissue may be granted with an expanded claim to secure to a patentee the benefit of the invention described but not claimed in the original, when caused by the inadvertence of the inventor. | 893 | |
| Licenses. | ||
| A license to two corporations to use a patented device passes, on their consolidation, to the new corporation, which is vested with all the powers, rights, franchises, etc., of the old corporations. | 514 | |
| A license to use looms, corresponding to certain models, for a specified period, “and for the additional term of any extension which may be hereafter granted of any patent now owned” by the licensors “relative to such looms,” held to mean that the right to continuation of royalty was conditioned upon the extension of one or more of the patents. | 1021 | |
| Infringement—What constitutes. | ||
| Substantial identity is necessary to Infringement, and that is substantial identity which comprehends the application of the principle of the invention. | 1290 | |
| All modes, however changed in form, which act on the same principle and effect the same end are within the patent. | 1290 | |
| There is no infringement in the use of a feature used in like machines prior to the patent sued on. | 1314 | |
| A machine may consist of distinct parts, some or all of which may be claimed as combinations; and there will be no infringement unless the entire combination, or the part claimed, is taken. | 1314 | |
| A patent for a combination containing new parts may be infringed by the use of such new parts. | 142 | |
| On the point of infringement, the inquiry is whether defendant's machine in its construction involves some new idea not found in plaintiff's, or whether it is in substance the same, and differs merely in things immaterial or unimportant. | 1322 | |
| If defendant has taken the same general plan and applied it for the same purpose, though varying the mode of construction, he has used merely mechanical equivalents. | 1322 | |
| A mechanical equivalent is limited to the principle of the patent, including merely colorable or formal alterations. | 1314 | |
| Where the patent is for a specific device and not for a combination, infringement is not avoided by making the device in three parts instead of two. | 1198 | |
| A patent for a “shoe-last” is infringed by using the machine, without alteration, in the making of boots. | 1198 | |
| —Who liable. | ||
| The general agent of a transportation company, which had contracted with connecting lines for through transportation. held not liable for infringement by use of an infringing device on the cars of the railroad companies set apart for carriage of the transportation company's freight. | 518 | |
| Under a contract between a railroad company and a manufacturer to build certain cars with a patented device, the chairman of the railroad company, who signed the contract for the company, is not liable to the patentee, where the device was used without license. | 515 | |
| —Remedy—Preleminary injunction. | ||
| It is not enough for defendant to make oath that he manufactures under a patent granted to himself; he must support his right by the affidavits of third persons. | 798 | |
| —Procedure. | ||
| The admission of the originality and value of complainant's patent, in the answer, will conclude defendant, though he subsequently amends his answer and denies both. | *666 | |
| An allegation of infringement by making and using the patented invention is sustained by proof of using alone. | 763 | |
| Complainant cannot acquiesce in the taking of testimony, and afterwards object to it for want of notice. | 733 | |
| —Evidence. | ||
| A former license from plaintiff to defendant to use the patented machine is evidence of utility. | 142 | |
| —Injunction, and its violation. | ||
| Where a patent covers but a small part of a machine which is claimed to infringe, which part is not materially useful, injunction is not the proper remedy. | 1021 | |
| An injunction will not be granted where the patentee exercises his monopoly by renting licenses generally. | 669 | |
| An issue as to whether an article sold by defendant, not appearing to have existed before the making of the decree, is an infringement of the patent, cannot be disposed of on motion for an attachment on affidavits, but must be determined in a suit brought for the purpose. | 506 1379 | |
| —Accounting: Damages. | ||
| Where the patented article is a unit, though an improvement on prior articles, the profits of the monopoly of the whole machine will not be divided among its parts. | 669 | |
| In ascertaining net profits, there must be deducted from the selling price the cost of materials and labor, interest on capital, expenses of sale, and, where credits are given, an allowance for bad debts. | 1322 | |
| Where no rights are sold by the patentee, the measure of damages are the profits he could have made, excluding the mere profits of mechanical construction. | 1329 | |
| Under Act 1836, § 14, plaintiff is limited to his actual damages. | 1329 | |
| The infringer's entire profit is the measure of damages only where the patentee exercises a complete monopoly and the invention is such as to supersede all other machines or manufactures of the same genus. | 669 | |
| The rule of damages at law is not defendant's profits, but plaintiff's loss. | 1290 | |
| If plaintiff was ready to supply the market, and his business was interfered with by defendant's competition, the damages will be the profits which plaintiff lost thereby. | 1290 | |
| Where the inventor's profits consist in a general licensing of the use of the invention' the license fee is the measure of damages. | 669, 1329 | |
| Interest on the amount of the license fee will be given from the time of infringement. | 1329 | |
| Damages at law are measured by plaintiff's actual loss by reason of the infringement, and include profits he would have made but for defendant's interference. | 1322 | |
| Damages may be given because of publications by defendant while violating the patent, disparaging plaintiff's improvement. | 1322 | |
| Interest should be allowed on the actual damages from the commencement of suit. | 1322 | |
| There is no distinction in the rule of damages between infringement of an entire machine and infringement of an improvement thereon, and in the latter case damages are not limited in proportion to the value of the improvement. | *1322 | |
| The inventor of an improvement on an old machine which he had a right to use is entitled to the benefit of the operation of the machine, with the improvement, to the same degree as the original patentee was entitled to the old machine. | *1322 | |
| Where no licenses are granted, and the patent is for a mere improvement, the damages are what the patentee would have made by the sale of his improvement, excluding the profits of manufacture and the value of the use of the old machine. | 1329 | |
| Failure to stamp the patented article, or to give the infringer notice, as required by the act of July 8, 1870, § 38, prevents recovery of more than nominal damages. | 1290 | |
| Various particular inventions and patents. | ||
| Circular saw frames. No. 7,027, for improvement in hanging circular saws, held valid and infringed. | 142 | |
| Harvesting machines. Reissue No. 239, for improvements in reaping machines construed, and held not infringed. | 1314, 1329 | |
| Harvesting machines. McCormick patent for the arrangement of the raker's seat construed, and held valid. | 1321, 1322 | |
| Lasts. No. 36,495, for an improvement in shoe-lasts, construed to be for a specific device, not a combination, and held infringed. | 1198 | |
| Locks. Sherwood's patent for double-faced door locks held valid. | *666 | |
| Locomotives. No. 34,377, for “improvement in trucks for locomotives,” construed, and held valid and infringed. | 763,770 | |
| Plug tobacco. Reissue No. 7,362, for improvement, held invalid for want of patentable invention. | 894 | |
| Switch. Littlefield's claim for an automatic railroad switch operated by an eccentric held to be entirely destitute of novelty and invention. | 626 | |
| Ties. No. 19,490, for an improvement in metallic ties for cotton bales, construed, and held valid and infringed. | 1282, 1290 | |
| Ventilators. Reissue No. 5,786, for a method of cooling and ventilating rooms, construed, and held valid and infringed. | 1163, contra, 1162 | |
| Weather strips. Leach's invention of strips with flanged edges, for tacking against door or window frame, held to possess patentable novelty. | 96 | |
| PAYMENT. | ||
| Where the debtor omits to make the appropriation, the creditor may make it; if both omit it, the law will apply to payments according to its own notions of justice. | 242 | |
| In cases of running accounts, payment should be applied to extinguish the debts according to priority of time, where there are no particular circumstances to vary the rule. | 242 | |
| PILOTS. | ||
| Pilots taking a vessel partly crippled, but not in immediate peril, nor unnavigable through Sandy Hook channel, held entitled to a reasonable extra compensation, but not to double fees as a legal right under a claim of usage of the port. | 993 | |
| There is no lien on a vessel enforceable in admiralty for half pilotage fees given to the pilot by the state law on the tender and refusal of services. | 266 | |
| The pilot has a lien for wages, as such, though when the vessel was in port he officiated and was recognized as master. | *786 | |
| The neglect or misfeasance of a licensed pilot in securing a vessel improperly to a wharf, whereby she breaks loose and injures another, will not relieve the vessel from liability, as the master is charged with the duty of seeing that she is properly moored. | 933 | |
| PLEADING AT LAW. | ||
| A declaration against the “common council of Alexandria” for work and labor done for “the mayor and commonalty” must show how the new corporation is liable for the debts of the old. | 1142 | |
| In a count in assumpsit “for sundry matters properly chargeable in account,” ac cording to an account alleged to be annexed, if no account be in fact annexed, the words referring to such annexation may be rejected as surplusage, and money lent may be proved under the count. | 1000 | |
| A plea of fraud in the execution of an instrument need not state the facts constituting the fraud. | 1274 | |
| A plea of general performance is not good to a declaration upon a replevin bond setting forth the condition and specific breaches. | 314 1380 | |
| A plea which states matters which occurred subsequent to the institution of the suit is bad on demurrer. | 7584 | |
| A demurrer does not lie to a part of a plea or defense, or immaterial matter there in, but it must deny its sufficiency as a whole. | 490 | |
| To a plea of want of consideration for the making and for the assignment of a note plaintiff should take issue on one or the other, and not on both. | 1274 | |
| A plea denying the execution of an instrument sued on, if not sworn to as required in such case by the Indiana statute, admits the instrument, but is good for other purposes. | 1274 | |
| Defendant need not plead a former recovery to give the same in evidence in an action of assumpsit or on the case. | 852 | |
| A plea of nonassumpsit to an action against the acceptor of a bill of exchange may be amended by annexing the affidavit required by statute. | 1005 | |
| A declaration in assumpsit may be amended (in Connecticut) by adding a special count in covenant. | 214 | |
| PLEADING IN ADMIRALTY. | ||
| See, also, “Maritime Liens”; “Salvage”; “Seamen.” | ||
| In an action of tort an amendment may be allowed increasing the damages demanded. | 1346 | |
| PLEADING IN EQUITY. | ||
| After alleging ownership and setting up a charter made as owners, respondents can not, on failure to prove the charter, amend so as to show that they were mortgagees out of possession. | 1252 | |
| Matter in an answer which is responsive to the bill cannot be excepted to as impertinent, although it in fact is so. | 1030 | |
| Where the answer is broader than the plea, and sets up other defenses, the plea will be considered merely as a part of the answer. | 457 | |
| The answer of one defendant is not evidence for or against a codefendant. | 319 | |
| An amendment which will introduce a new cause of action will not be permitted. | 331 | |
| PLEDGE. | ||
| A bank with which stock is pledged by an executor is entitled to sell the same, in case of default, if it had no notice, actual or constructive, of a violation of trust, al though the pledge was in fact for the executor's individual benefit. | 1040 | |
| POST OFFICE. | ||
| A transcript, from the post-office department, of the balances struck by the post master is sufficient to charge him. | 81 | |
| Sureties on official bonds of postmasters are not discharged by neglect of the postmaster general to sue for balances within the time prescribed by law, or by the making of an order directing the postmaster to retain the balances due until drawn for. | 736 | |
| A payment, made by a postmaster, of a greater sum than the receipts of the quarter, should be applied as a credit for a sub sequent quarter, as well before as after the date of his official bond. | 81 | |
| POWERS. | ||
| See, also, “Mortgages.” | ||
| A collateral power, although irrevocable, expires with the life or bankruptcy of the appointor; otherwise in case of a power coupled with an interest. | 744 | |
| A power, conferred upon trustees, to appoint a committee to designate the disposition of the estate after the death of testator's children, held to be one coupled with an interest, which could be exercised by a surviving trustee. | 905 | |
| A power of attorney to collect a judgment to arbitrate and compound the same, and to employ counsel, authorizes the attorney to employ counsel to appear in an action to annul a sale under such judgment, and consent to a judgment annulling such sale upon terms advantageous to the client. | 225 | |
| A power to sell at a certain door of the courthouse may be rightfully executed by a sale at the ruins of such door, where the courthouse was destroyed by fire in the interim. | 828 | |
| PRACTICE AT LAW. | ||
| The court will not, at a subsequent term, reinstate a cause which has been nonprossed for want of security for costs. | 537 | |
| PRACTICE IN ADMIRALTY. | ||
| In an action in rem against a vessel the court cannot take cognizance of collateral equities to enforce them against persons not made parties to the proceedings, where such decree may be prejudicial to their interests. | 348 | |
| A court of admiralty has power to decide between conflicting claims to property seized by attachment or on execution. | 537 | |
| The holder of a mortgage on a vessel to secure a debt for advances made for her last voyage may interpose a claim on the balance of the proceeds in the custody of the court, on a sale to enforce preferred liens subsequently accrued, irrespective of his right to sustain a libel to enforce it against the ship originally. | 298 | |
| A debt due respondent from a third per son may be attached to satisfy a judgment in personam. | 233 | |
| By a rule in the district of Massachusetts, a warrant to attach the goods and chattels, or, in default, the credits, of defendant, may be granted in cases in which an arrest cannot legally be made. | 966 | |
| Where a party claims under an attachment he must file a caution in court to hold the proceeds remaining after satisfying prior claims. | 960 | |
| The admiralty court will not order a defendant to give a stipulation in the action under pain of imprisonment in a ease in which he is not liable to arrest | 966 | |
| The undertaking of stipulators, on a libel in rem for the loss of a vessel and cargo by collision, is for their value, and they can not interfere, in questions relating to the equity of the parties, to amend their pleadings so as to bring within the action all rights which may be legally determined by it. | 1346 | |
| A stipulator will be discharged from his undertaking where the vessel is subsequently rearrested on libels by others, and sold, and the proceeds brought into court. | 665 | |
| The oral cross-examination of witnesses on a commission abroad may be allowed as a condition of waiving objection of irregularity in the motion for the commission. | 961 1381 | |
| Answers to special interrogatories are not conclusive, and will not control when opposed to the weight of the other proof or open to suspicion. | 89 | |
| A court of admiralty, on its own motion or at the instance of the parties, may submit any question of fact to commissioners or referees for their opinion and advice. | 233 | |
| The decision of commissioners or referees to whom a question of fact is submitted, unlike the verdict of a jury, is not conclusive thereon. | 233 | |
| Where the record shows that the court was controlled by the findings of the jury, to which issues of fact were submitted, without consideration of the evidence, the proceeding is irregular, but where all the evidence is before the appellate court such judgment will be rendered as the evidence warrants. | 233 | |
| An award, made under a rule directing the referee to determine the amount due and the question of costs, is sufficiently certain if it state the amount due, and that libelant is entitled to costs, without stating the amount of the costs. | 648 | |
| An award will not be recommitted because libelant's counsel omitted to call the attention of the referee to a matter which might have influenced him to increase the amount of salvage. | 648 | |
| A tender, by answer and payment into court of a certain sum as salvage, is not an admission that such sum is due; and if the tender is refused, and the same sum is decreed, respondent may still appeal. | 1060 | |
| On appeal in a salvage case, the whole cause, including costs, is before the court, irrespective of the decree below, and the court may decree more, or less, or nothing. | 1060 | |
| Though the question of costs is perhaps not per se the proper subject of appeal, it is yet reviewable when the case is properly before the appellate court. | 1060 | |
| The surplus in the registry after payment of the allowed claim will be applied pro rata to the payment of other claimants. | 786 | |
| PRACTICE IN EQUITY. | ||
| Where the bill is amended it is not necessary to serve new subpoenas upon de fendants who are in court. | 849 | |
| A responsive answer must be overcome by the testimony of two witnesses, or of one witness and attendant circumstances. | 803 | |
| A bill and cross bill do not necessarily constitute one suit, and defendants in the cross bill must be served unless they voluntarily appear. | 1027 | |
| An original bill may be dismissed as of course at complainant's cost at any time before decree. | 1027 | |
| Construction of decree confirming complainants in their right and title to divert and use the water of a certain stream, on exceptions to a master's report refusing to award damages for diversion. | 864 | |
| PRINCIPAL AND AGENT. | ||
| See, also, “Factors and Brokers”; “Powers.” | ||
| Owner of vessel held not liable for fault of master in failing to notify the shipper's agent of his leaving, so that he might have effected an insurance on the cargo. | 409 | |
| The owners of a stage coach are liable for the negligence of their agent in suffering the slaves of another to be taken away in the coach. | 1017 | |
| Agents are held to strict account where they act under plain orders. | 870 | |
| An agent is governed by the price stated in the invoice accompanying goods where he is directed not to sell for less than the first cost and charges. | 870 | |
| An authorized sale by the agent held not ratified by the principal's drawing on him for a part of the proceeds. | 870 | |
| PRINCIPAL AND SURETY. | ||
| See, also, “Bail”; “Guaranty.” | ||
| A bond to prevent the removal of property in litigation beyond the jurisdiction of the court creates a personal obligation only against the obligor. | 317 | |
| A surety who has paid more than his proportion is entitled to contribution out of the estate of his cosurety, and his claim ranks according to the dignity of the claim on which the excess was paid. | 502 | |
| PRIZE. | ||
| See, also, “War.” | ||
| Grounds of condemnation. | ||
| A trade to a neutral port is not illegal, although the public enemy derive benefit thereby, unless such trade be carried on in connection with or subservient to hostile interests and policy. | 641 | |
| An American vessel is liable to condemnation as prize of war for taking on board a cargo from an enemy's ship under the pretense that it is ransomed, and she may be seized on the return voyage. | 890 | |
| Property purchased as stock, in a trade to be carried on in the enemy's country, by a person domiciled and permanently residing there, is subject to forfeiture. | 525 | |
| A bill of lading transmitted to a party to cover advances on the cargo does not pass title to the cargo as against the captors. | 1173 | |
| Fraudulent conduct of a neutral owner of a portion of the property captured, in claiming another part which belongs to an enemy, is ground of forfeiture of his portion. | 525 | |
| A neutral must be sufficiently informed of the existence of a blockade to be affected with the penal consequences of a violation. | 943 | |
| A warning in writing is not necessary, where the neutral has knowledge or notice of the blockade. | 943 | |
| The departure of a vessel from a blockaded port, under the compulsory direction of a blockading cruiser, does not reintegrate her to the state of aninnocent trader, where she approached the port with knowledge of the blockade, and with intent to violate it. | 943 | |
| The carrying of fraudulent papers by a neutral vessel with intention to mislead a blockading force is ground of condemnation. | 943 | |
| If a claim be founded in illegal conduct it must be rejected, and if such illegality be a cause of municipal forfeiture, and not jure belli, the property will be condemned to the United States. | 641 | |
| The question of condemnation is not affected by the wrongful acts of the captors towards the prize or its crew subsequent to capture. | 943 | |
| Procedure in prize cases. | ||
| Captors have a right to carry their prizes to a proper and convenient port for ad judication, and are not controlled by the revenue officers. | 631 | |
| Claims should be made by the parties themselves, if within the jurisdiction, and not by their agents. | 631 | |
| The consul of a nation may claim on behalf of its subjects in the absence of any authorized agent. | 799 1382 | |
| The claim for restoration on the ground that the property was captured within neutral waters can only be presented by the neutral nation whose rights have been infringed. The owner cannot make the claim. | 525 | |
| Prolixity of statement in answer and claim criticized. | 1173 | |
| A claimant cannot put in a special claim or answer leading to any other issue than the one simply of prize or no prize without the assent of the United States attorney or the special order of the court. | 943 | |
| Property taken as prize may be pursued in rem in the hands of any persons becoming possessed of it, or by monition against them if its proceeds have been brought into court. | 1175 | |
| Where cargo delivered on what afterwards appeared insufficient bail had passed to bona fide purchasers, held, that a monition should issue against the claimants to pay into court the excess in value over the amount of bail. | 1175 | |
| If the character and origin of the captured property be in question, on the original hearing the court will order a survey and report. | 641 | |
| Where property is shipned in an enemy's vessel, the presumption of its being enemy's property can only be repelled by strong and clear proofs of a neutral interest. | 799 | |
| The rules stated governing the admission of further proof. | 525 | |
| Further proof will not be allowed in cases of fraudulent concealment and falsification of papers. | 641 | |
| Where the captors have been guilty of irregularity in not bringing in the papers or the master of the captured ship, further proof will be ordered. | 799 | |
| Where the evidence affords probable cause for belief that the vessel was engaged in an illicit adventure, final decision was suspended to permit further proofs within the year. | 424 | |
| The officers and crew of a prize, on condemnation, are not entitled to wages, nor to witness fees or compensation for necessary detention, out of the prize property. | 525 | |
| The proceedings of a confederate prize court are null and void, and no title can be acquired on condemnation and sale thereunder. | 525 | |
| The district court, as a prize court, has no power to open a decree after the expiration of the term or session in which it was rendered. | 706 | |
| After an appeal, the court may allow evidence not received in season to be made a part of the case to be put upon the record de bene esse, with a memorandum of the fact. | 799 | |
| A vessel captured by a Confederate privateer, and condemned and sold by a Confederate prize court, on recapture will be restored to the original owners, upon payment of salvage. | 525 | |
| Vessel and cargo condemned as enemy property. | 1173, 1176, 1094 | |
| vessel and cargo condemned as enemy property, and for a violation of the blockade of Apalachicola, Fla. | 706 | |
| Vessel and cargo condemned for an attempt to violate the blockade of Beaufort, N. C. | 425 | |
| Vessel and cargo condemned for an attempt to violate the blockade of Wilming ton, N. C. | 709 | |
| Illegal capture: Damages. | ||
| Captors are not liable for damages, where there is probable cause of capture. | 641 | |
| A voyage by a vessel from an enemy port with a cargo on board, without the license of our government, is of itself a probable cause for the capture of the vessel and cargo. | 641 | |
| Injury alleged to the cargo after it came into the possession of the captors should be ascertained under the direction of the prize court, by a survey and appraisement or sale. | 631 | |
| Commissioners appointed to state damages should not hear ex parte evidence without notice to the other side. | 631 | |
| Commissioners to whom the case is referred to state the amount of damages for an illegal capture must state the items of the allowances in detail in their report. | 631 | |
| The right of reclamation for damages, in cases of captures by public vessels, must be pursued by plea and proof. | 943 | |
| Damages for personal ill usage will be awarded where the captors wantonly injured the captured crew. | 631 | |
| The measure of damages for an illegal capture, where the vessel and cargo have been wholly lost, is the prime cost and interest. | 631 | |
| A speculative loss of profits is not a proper item of damage in a case of illegal capture. | 631 | |
| Freight is not a proper item of damage for an illegal capture where the voyage has not been lost. | 631 | |
| PUBLIC LANDS. | ||
| See, also, “Grant”; “Mines.” | ||
| A certificate and entry describing the land as “lying on the north side of the Kentucky river, about four miles from the river,” held too general, and not saved by the special locative description, “on a small branch called Rockhouse.” | 512 | |
| Notoriety as to the name of a small branch used as a descriptive and locative call in a certificate and entry subsequent to the time of such entry, but prior to the time the rights of others attached, is not sufficient to sustain a claim thereunder. | 512 | |
| In acting upon a claim to pre-empt a tract of land, the land officers exercise a judicial discretion, with which the court cannot interfere by injunction. | 592 | |
| A bill against the register and receiver of the land office to restrain them from permitting settlers on lands treated by the department as public lands from entering them under the pre-emption laws, when such settlers are not made parties, is fatally defective. | 592 | |
| A settler on public lands in Oregon, prior to September 27, 1850, had a mere possession. His interest ceased with his occupation, and he could not incumber it so as to affect a subsequent occupant. The latter took as if the land had never been occupied before. | 1030 | |
| The act organizing Oregon territory did not extend the “town-site law” over that territory. The first act affecting the title or disposition of Oregon lands was the donation act. | 1030 | |
| A warranty deed executed by an executor before the patent issues from the government conveys no legal title, but it will operate by way of estoppel, where a patent is afterwards issued in the name of the executor, though the will did not authorize him to convey. | 457 | |
| Congress has power to reinstate an entry canceled by the land office, and to provide that this shall relate back to the original entry, so as to inure to the benefit of intermediate grantees. | 1259 | |
| In such case the intermediate grantees receive the benefit whether they took with or without warranty. | 1259 | |
| Construction of Act Cal. March 17, 1866, relating to lands in the city of San Jose. | 356 1383 | |
| The law of Pennsylvania relating to titles to land under application, warrants, surveys, locations, payment of purchase money, and the rules of the land office relative thereto, by which such titles are ascertained and determined. | 487 | |
| QUIETING TITLE—REMOVAL OF CLOUD. | ||
| The removal of a cloud from title is an equitable right, and can only be enforced on the equity side of the court. | 895 | |
| RAILROAD COMPANIES. | ||
| See, also, “Carriers”; “Municipal Corporations.” | ||
| A contract for railroad construction, obligating the contractor to complete any work left unfinished by any other contractor on the line, does not render such contractor an insurer of the defaulting contractors, and he is entitled to notice of the default. | 214 | |
| Interpretation of railroad construction contract providing for payment in bonds guarantied by certain towns. | 214 | |
| A consolidated company succeeds to all the franchises, rights, privileges, and immunities of the several companies of which it is formed. | 474 | |
| A municipal corporation cannot subscribe to the capital stock of a railroad company, and issue its bonds in payment, without authority expressly conferred by law. | 474 | |
| Authority given “to any incorporated town or city” in a county to subscribe to capital stock is not limited to towns and cities incorporated at the date of the passage of the act. | 474 | |
| Railway aid bonds bearing 10 per cent. interest, issued under authority given to issue bonds bearing 6 per cent, interest, are valid obligations for the principal and 6 per cent, interest. | 474 | |
| A county is directly liable to the holder of railway aid bonds where it covenants to pay the holder, though, as between the county and railroad company, the latter has agreed to pay. | 1341 | |
| In a suit on county railway aid bonds, it is not necessary to show an actual subscription by the county in the manner described by the statute, or that a certificate of railroad stock was issued to the county. A recital in the bond that it issued in payment of the subscription raises a presumption that these things were done. | 1341 | |
| A railroad mortgage recorded in one county through which the road runs has priority in that county over the lien of a subsequent judgment, but not so in other counties where it is not recorded. | 1099 | |
| The parts of a railroad lying in counties where a certain judgment constitutes a prior lien cannot be sold, under the judgment, separate from a part lying in another county where a mortgage has priority, but the whole road must be appraised and sold together. | 1099 | |
| It is a breach, of trust for railroad receivers to contract to deliver all live stock coming within their control at the stock yards of one company, to the exclusion of other yards equally well situated. | 1340 | |
| REAL PROPERTY. | ||
| See, also, “Deed”; “Ejectment”; “Grant”; “Public Lands”; “Vendor and Purchaser.” | ||
| Where several persons residing together have a joint possession of property, the law casts the actual possession upon the legal owner. | 317 | |
| The occupation and the erection of buildings on land in dispute by one of two rival claimants will not be enjoined before the title is judicially determined. | 386 | |
| A legal estate in a term for years does not merge in an equitable title to the reversion. | 596 | |
| Construction of “occupying claimants” law of Iowa, as to “color of title” and “good faith” | 590 | |
| Settlers on Des Moines river lands in Iowa held entitled to be allowed for improvements as occupying claimants under the Iowa statutes, where they were afterwards adjudged not to be the rightful owners. | 590 | |
| RECEIVERS. | ||
| See, also, “Railroad Companies.” | ||
| A receiver will be appointed pending a litigation when there is danger that the sub ject-matter of controversy may be wasted and destroyed, impaired, injured, or removed during the progress of the suit. | 317 | |
| REFERENCE. | ||
| The compensation of auditors in Pennsylvania is regulated not only by their labor but also by the amount of money to be distributed. | 793 | |
| REMOVAL OF CAUSES. | ||
| See, also, “Courts.” | ||
| Right of removal. | ||
| Under the act of 1875, a suit involving over $500 is removable on the ground of diverse citizenship alone. | 1013 | |
| An action against a foreign corporation in the state court is effectually commenced by the service of summons upon its agent within the state, where it has filed a consent to such service as required by the state law. | 141 | |
| But see. | 338 | |
| Such action, where the amount in dispute is within the jurisdictional limit, may be removed to the federal court, and will not be remanded for want of jurisdiction. | 141 | |
| A corporation created under the laws of one state does not become a citizen of another state by complying with its law requiring the filing of a consent to service of process upon its agent within the state. | 141 | |
| Time for removal | ||
| Under the act of 1875, a removal cannot be had after entry of default and before vacation thereof. | 1247 | |
| An application filed after the commencement though before the conclusion of a trial, upon either the law or the facts of the case, which would conclude the controversy, is too late. | 499 | |
| Proceedings to obtain. | ||
| All the nonresident defendants need not join in a petition for removal where a final determination can be had between plaintiff and the petitioning defendants without the presence of the others. | 501 | |
| A party removing a cause under Act 1789. § 12, must file, in the federal court, not only a copy of the process, but also the declaration or bill, the petition for removal, and the order made by the state court, if any. | 1215 | |
| Effect of removal: Subsequent proceeding | ||
| Suit remanded to state court where the motion for removal was not filed until after a receiver had been appointed, and where the proceedings were under a local statute. | 249 1384 | |
| REPLEVIN. | ||
| An action of replevin, discontinued for nonappearance of defendant, may he reinstated at a subsequent term, where defendant's attorney had directed the clerk to enter his appearance, but lie clerk failed to do so. | 1271 | |
| An affidavit is fatally defective which omits to state that plaintiff was lawfully possessed of the property, and that it was unlawfully taken from his possession without his consent. | 1215 | |
| REPORTERS. | ||
| See, also, “Copyright.” | ||
| The New York statutes in relation to the reporting and publication of the decisions of the court of appeals construed. | 604 | |
| Res Judicata. | ||
| See “Judgment” | ||
| RIPARIAN RIGHTS. | ||
| See, also, “Navigable Waters”; “Waters and Water Courses.” | ||
| Riparian owners on the Oconto river have no right to construct booms or piers in it without authority from the legislature. | 262 | |
| Where the construction of booms and piers has been acquiesced in by the public, one boom owner cannot sue another for the obstruction caused thereby. | 262 | |
| SALE. | ||
| See, also, “Vendor and Purchaser.” | ||
| A contract to deliver goods not in existence at the time is not a sale. | 1008 | |
| An agreement, whereby A. was to furnish goods to B. at schedule prices, B. to settle every three months for all goods sold or shipped from his warehouse, at the stipulated prices, and for all goods remaining on hand at the end of the year, held, to create the relation of buyer and seller. | 558 | |
| Where, by the contract, title is not to pass until the price is paid, the title remains in the vendor, though but a small part of the price is unpaid, and the vendee has possession. | 1180 | |
| A sale of corporate stock to an alleged agent, and the receipt of a draft on the alleged purchaser for the purchase money, is a sale for cash, and a refusal of the latter to pay the draft nullifies the transaction. | 1295 | |
| The seller has no lien, as such, where he delivers possession to the purchaser and takes a chattel mortgage from him. | 292 | |
| Transfer of a bill of lading, as a mere collateral to previous obligations, without anything advanced, given up, or lost on the part of the transferee, does not affect the right of stoppage in transitu. | 388 | |
| The market price of oats after the bankruptcy of a broker who agreed to buy and hold them on a margin cannot be considered in estimating damages for breach of the contract. | 258 | |
| Under a contract to deliver within the state pork well put up for a foreign market, the purchaser may show the condition of the article en route to the foreign port, to enable the jury to judge whether it was well put up at the place of delivery. | 86 | |
| SALVAGE. | ||
| Right to salvage compensation. | ||
| Risk of life, expenditure of money, or the application of extraordinary means is not essential to a salvage service. It may be exclusively a case of skill. | 91 | |
| Pilots may be salvors, even after the relation of pilot to the particular vessel has been begun, the right depending upon the service rendered. | 91 | |
| The fact that the ordinance from which the pilot derives his commission makes it his duty to go to vessels in distress will not prevent his recovering salvage. | 91 | |
| A pilot is entitled to salvage for extricating from peril a vessel aground upon a shoal, running out into the sea, which is not an entrance to a bay, inlet, river, harbor, or port, though within the cruising ground, if not made by law pilots' water. | 91 | |
| An officer who, while acting as such, exceeds the bounds of his official duty by giving extraordinary assistance to save property, is entitled to salvage. | 404 | |
| It is no objection to a claim for salvage that the interference or assistance of the salvor did not arise from a desire to preserve the property or benefit the owner. | 404 | |
| Contracts for salvage services. | ||
| Persons who assist a vessel in distress at the request of her master or owner, with no definite arrangement for compensation, must ordinarily be paid as salvors. | 949 | |
| A contract, whether absolute or contingent, for salvage services, does not oust the jurisdiction of the admiralty court in rem or in personam in a proceeding brought by the contractor. | 949 | |
| Forfeiture or reduction of salvage. | ||
| Where a master conceals a cask of oil which he has picked up at sea, and sells it at a secret sale after claim of ownership is made, he is not entitled to salvage compensation, or to be refunded duties paid by him. | 105 | |
| Salvors not concerned in acts of embezzlement of furniture and stores committed by some of the crew of their vessel are unaffected thereby in respect to their compensation. | 1059 | |
| A boy who refused to join in plundering a derelict vessel, but who took trifling articles “as keepsakes,” held entitled to a less share than he otherwise would have had. | 1059 | |
| Amount. | ||
| The amount may be affected or controlled by the usage of the port as to the rate of payment, where services are rendered at the request of the master or owner. | 949 | |
| Where the owner has expressly abandoned the property to the libelants, the whole amount may be awarded after payment of costs. | 711 | |
| One-half awarded where the vessel and cargo aground on a Florida reef would have been a total loss but for the timely assistance of the salvors, rendered at great hazard. | 501 | |
| A schooner in distress was found by a bark, and her crew taken off. The weather having moderated, the bark returned to the schooner, but the latter's master could not induce his crew to go on board. The bark then sent part of her crew, who brought the schooner in. Held not a case of derelict. | 1003 | |
| Twenty-five per cent, on a valuation of $90,000 allowed for bringing into port, after 13 days of severe labor and hardship, a schooner not derelict. 1385 | ||
| $2,500 allowed on a valuation of $6,400 where a coal-laden schooner found derelict SO miles from Long Island was brought in by the mate and two men from a coasting schooner, in 30 hours, with some risk. | 1059 | |
| Remedies for recovery. | ||
| The finder of an abandoned vessel becomes the legal possessor and acquires a privilege against the property for salvage, which takes precedence of all other liens. | 478 | |
| A sale of the damaged vessel requested by her master will not be ordered, though the repairs will nearly equal her present value where the court does not think it to the interest of her owners and insurers and the owners of the cargo. | 501 | |
| Apportionment. | ||
| The first mate of a bark, who refused to volunteer to assist in bringing in a schooner whose crew was taken off by his own vessel, held entitled to only the same share as the other seamen remaining on the bark. | 1003 | |
| SEAL. | ||
| The existence of a seal presumed from the statement in the concluding clause m the instrument that the grantor affixed thereto his seal, and from the attestation clause stating that the instrument was sealed in the presence of the witnesses, though the record did not show a seal. | 245 | |
| SEAMEN. | ||
| See, also, “Admiralty”: “Maritime Liens”;, “Pleading in Admiralty”; “Practice in admiralty.” | ||
| The contract of shipment. | ||
| The reasonableness and equity of an agreement between owners and seamen will always be examined by the court. | 1092 | |
| An agreement made by the shipping agent at the time the articles were signed, and understood by the seaman to form a part of his contract, though not embraced therein, will be given effect. | 790 | |
| A seaman discharged abroad and reshipped at a less sum may recover the difference on his return to the home port. | 790 | |
| Conduct of master or mate in respect to seamen | ||
| A master who, without investigating the circumstances, unjustly causes a seaman to be punished for an offense he did not commit, is liable, though he did not act in a cruel or oppressive spirit. | 556 | |
| It is not a cruel or excessive punishment to keep two waiters ironed together for 10 hours for fighting in the cabin of a vessel. | 556 | |
| Wages—Right to. | ||
| A vessel is liable to seamen shipped for a voyage not prosecuted. | 412 | |
| The owners are liable for the wages of a seaman employed by the master after he had a full complement. | 1115 | |
| Where a vessel went to a port out of her course, and there sold part of her cargo, and was afterwards captured, wages were decreed her seamen up to the time of such sale. | 557 | |
| Where a minor concealed himself on board a whaling vessel until she was at sea, but might have been left at an intermediate port with the American consul there, held, that the father was entitled to his wages from the time of leaving that port. | 1115 | |
| Where a father sued for services of his minor son, who deserted on the return from a whaling voyage, Md, that the lay should be the rule of damages, none other being claimed. | 1005 | |
| A seaman justifiably separated from his ship on a whaling voyage is entitled to such proportion of his lay as the time he served bears to the whole time of the voyage. | 1005 | |
| Where seamen abandon the wreck, they lose their right to wages, though the property is afterwards restored on salvage by others. | 478 | |
| ——Remedies for recovery. | ||
| The wages of a seaman on board a vessel in port, who was hired to take care of her while in port, are not a lien. | 413 | |
| The seaman's lien for wages is lost by an assignment of his claim. | 786 | |
| Seamen on a fishing voyage have a lien on the fish for their wages; and, where the shipowner becomes bankrupt, this hen follows the proceeds of the fish into the hands of his assignees. | 1007 | |
| A mate who, upon the decease of the master, succeeds to his command, cannot sue in rem for the extra compensation he thus becomes entitled to as acting master. | 348 | |
| A receipt in full may be explained by showing that there was an outstanding demand in favor of the seaman which was not in fact satisfied by the payment made; but the evidence must be clear and convincing. | 102 | |
| Deductions: Extinguishment, etc. | ||
| Under the general maritime law, desertion does not necessarily produce forfeiture of all antecedent earnings; the matter is in the court's discretion. | 1005 | |
| Desertion, under the statute, by a minor who engaged in a whaling voyage without his father's consent, is no defense to a suit by the father for previous services. | 1005 | |
| The failure to date an entry in the log of the seamen's leaving the vessel is fatal to its value as proof of desertion, under the British merchants' shipping act of 1804 (sections 244, 250, 281) | 520 | |
| The certificate of the British consul, on an appeal to him, that he had examined the entry, and that the desertion was properly entered, will be disregarded where it does not appear that it was made known to him that the entry was not made on the day of the occurrence. | 520 | |
| Though the leaving of the vessel is not justified by the circumstances, a forfeiture will not be decreed where there is an apparent connivance on a part of an officer of the vessel in efforts by third persons to induce the seamen to desert. | 520 | |
| SET-OFF AND COUNTER-CLAIM. | ||
| A separate debt of one partner cannot be set off against a partnership claim. | 1178 | |
| Unliquidated damages arising from the nonperformance of a verbal promise to convey real estate, made without consideration and under a mistake of face, cannot, in equity, be set off against a judgment at law. | 237 | |
| A claim founded in tort may be set off against a demand in contract, where defendant's claim is founded in a duty which plaintiff owes him, as to deliver property as bailee; for in such case the tort may be waived. | 1224 | |
| In an action upon a replevin bond for goods distrained for rent, evidence that the landlord was indebted to the defendant at the time the rent was due by the tenant cannot be given under a plea of set-on. | 314 | |
| SHERIFFS AND CONSTABLES. | ||
| No other proof than that defendant acted as sheriff in levying upon property is necessary to charge him as such. | 81 1386 | |
| Where the act of the deputy is sanctioned by the sheriff the latter is liable though the execution was not sealed. | 81 | |
| The sheriff is liable for failure to make the costs of the clerk when practicable, and is not excused by any direction of the judgment creditor or his attorney. | 483 | |
| SHIPPING. | ||
| See, also. “Admiralty”; “Affreightment”; “Bills of Lading”; ldquo;Bottomry and Respondentia”; “Carriers”: “Collision”: “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage”; “Wharves.” | ||
| Public regulation. | ||
| A proceeding in rem is the proper mode of prosecution for the violation of Act July 4, 1864, § 8, in neglecting to post up in a conspicuous place in a steamer synopses of the laws relating to the carriage of passengers. | 444 | |
| Where the statute requires the posting of two copies of the synopsis of the laws relating to the carriage of passengers, it is no defense to a prosecution for violation of the act that one copy was posted up. | 444 | |
| A proceeding in rem is the proper remedy for a violation of Act May 5, 1864, requiring steamers to have their names painted conspicuously on their wheel houses and pilot houses. | 448 | |
| The certificate of a consul is not admissible to prove the arrival or departure of a vessel on an information for a penalty for failure to deposit the ship's register on arrival in the port. | 434 | |
| The execution of a delivery bond by the owner of a vessel in a proceeding in rem for a penalty or forfeiture is a waiver of the objection of the want of a prior seizure. | 444, 448 | |
| Fees of British consuls for receiving and recording ship's papers and for certifying to a redelivery. | 919 | |
| Title to vessel: Sale: Mortgage. | ||
| In case of a dispute between part owners as to the employment of the vessel, the court will not decree a sale of the whole boat at the instance of the minority interest, but will require a stipulation of the majority for the protection of the minority interest. | 484 | |
| There is no forcible dispossession where a master appointed by the majority owners goes aboard the vessel during the temporary absence of the previous master, and takes possession. | 705 | |
| A mortgage on a vessel to secure necessary advances held valid, though not recorded until after an assignment to an assignee in insolvency proceedings. | 298 | |
| Such mortgage is not fraudulent because unaccompanied by possession, where, by agreement in the mortgage, an immediate voyage by the owners was contemplated. | 298 | |
| The mortgage is good security though part of the consideration was not money actually advanced for the voyage. | 298 | |
| The master. | ||
| The majority owners of a vessel have a right to remove one master and appoint another. | 705 | |
| The master may, in good faith, in his best discretion, for the benefit of all concerned, sell a wrecked vessel, either in view of a peril then involving her, or of one likely to ensue. | 1075 | |
| That a master selling a stranded vessel believed at the time that he could get her off would be pertinent to show bad faith avoiding the sale; but that the purchaser believed himself able to do so has no such effect. | 1075 | |
| A purchaser of a wrecked vessel from the master need not, in order to maintain his title, furnish direct evidence of the master's good faith and of the necessity for the sale. Presumptive proof is sufficient. | 1075 | |
| A master, acting under competent advice, is justified in selling at auction, in a port of necessity, a cargo of hides which is filled with vermin. | 1198 | |
| On an abandonment for a total loss the master cannot sell the cargo and invest the proceeds in other goods, unless justified by necessity or by a high degree of expediency. | 75 | |
| But where the Parties interested receive the property without objection, and adopt the acts of the master, they are liable for all proper charges thereon. | 75 | |
| Where the property so purchased with out authority yields a profit, the master, where he acted in good faith, is entitled to reasonable compensation and expenses not exceeding the profit; otherwise, where the property did not yield a profit. | 75 | |
| Employment of vessel. | ||
| A supercargo dealing solely with the ostensible owners of the whole cargo may retain out of the whole proceeds a general balance, due him from them, as against apart owner whose interest was not disclosed to him. | 1080 | |
| Liabilities of vessel or owners. | ||
| A vessel which stretches a line across a river channel is liable for damages caused thereby to a raft. The latter is under no obligation to look out for such an obstruction. | 1303 | |
| An owner whose name does not appear in the registry is equally liable with the one whose name does so appear for work done on the vessel, though libelant had no knowledge of his interest. | 242 | |
| Owners sued in personam for repairs made by order of the consignees of the vessel cannot, after admitting ownership, and alleging that the consignees were owners for the voyages under a charter party, and after accepting the repairs, dispute the authority of the consignees to order them made; and such owners are prima facie liable. | 1252 | |
| Limiting liability. | ||
| The act limiting liability (Rev. St. § 4283) is a regulation of commerce applicable to foreign vessels. | 422 | |
| Such act is applicable to a vessel, running upon the ocean between ports of the same state, which carries merchandise or passengers on through bills or tickets destined to points in other states. | 884 | |
| The limitation of liability in such ease applies to losses of goods carried between the ports of the same state. | 884 | |
| The meaning of the words “privity” and “knowledge,” as used in the statute, defined. | 884 | |
| The privity or knowledge of the managing officers of a corporation, owners is privity or knowledge on the part of the corporation itself. | 884 | |
| The owner is in privity where a loss occurs by reason of failure to exercise the utmost care in selecting a competent master and crew, and in providing a seaworthy vessel. | 884 | |
| A vessel is not seaworthy if not furnished with suitable compasses; but, where a deviating compass may be corrected by other correct compasses on board, the vessel is not unseaworthy in this respect. | 884 | |
| Where the vessel is properly officered and manned, and in all respects seaworthy, a loss from causes arising during the voyage without the privity or knowledge of the owner, is within the statute. | 884 1387 | |
| SLAVERY. | ||
| The legacy of a slave gives no title until assented to by the executor. | 224 | |
| A deed of a gift of a slave in Virginia held void unless accompanied by possession. | 224 | |
| A parol gift of a slave in Virginia, though accompanied by possession, held void under the act of 1758 | 224 | |
| In Virginia, a person who has been in possession of a slave for five years need not show the deed under which he claims title. | 992 | |
| A deed conveying a slave in Maryland, if unrecorded, is not admissible without proof of execution, though acknowledged before a justice of the peace. | 1091 | |
| A slave, purchased by defendant at her request to enable her to obtain her freedom, on repayment of the purchase money must repay the whole amount before being entitled to her freedom. | 411 | |
| A petition will not lie for freedom to which the slaves will be entitled at a future date; nor will an injunction be granted to prevent their delivery to their owner on the ground of an anticipated violation of the law of the state. | 223 | |
| Right to freedom of a slave brought into the District of Columbia, where there was a failure to take the oath required by law. | 940 | |
| The oath required by the Virginia law of December 17, 1792, is of no avail unless taken within 60 days after the party's removal. | 1091 | |
| On a petition for freedom, master required to give security to have the petitioner forthcoming to prosecute her claim. | 411 | |
| Right to freedom of slaves removed to Washington, D. C. | 209 | |
| A master of a vessel is not liable to the penalty under the Virginia statute for carrying a slave out of the state, unless he did it knowingly. | 209, 1232 | |
| The fugitive slave law of September 16, 1850, is not unconstitutional. | 821 | |
| Evidence as to identity in a proceeding for the restoration of a fugitve slave. | 821 | |
| SPECIFIC PERFORMANCE. | ||
| A promise by a purchaser, after a sheriffs sale to him, to reconvey to another, is without consideration, and specific performance cannot be required. | 319 | |
| Time will not be considered as essential, where the same justice can be done between the parties, and neither has sustain ed inconvenience by the delay, and the property has not changed in value. | 844 | |
| Where both parties have been grossly negligent, equity will leave them to their legal remedies. | 844 | |
| The assignee of a vendee is a necessary party in a suit for specific performance of a contract to convey. | 844 | |
| On a bill for specific performance the court will not decree repayment of illegal interest which has been paid. | 849 | |
| STATUTES. | ||
| See, also, “Constitutional Law.” | ||
| A law authorizing a city to issue bonds is not a “general law” which is required by the Wisconsin constitution to be published before going into effect. | 1105 | |
| Query, whether an act involving alternatives, mutually dependent, whose title specifies all the purposes except one, and that consequential, violates the constitutional provision that no law shall contain more than one subject, which subject shall he clearly expressed in the title. | 246 | |
| Where several statutes upon the same general subject are inconsistent or doubtful in meaning they should be examined together. | 356 | |
| The Revised Statutes as enacted June 22, 1874, did not alter statutory provisions in force December 1, 1873. | 1119 | |
| SUBROGATION. | ||
| A purchaser of a fishing vessel from assignees in bankruptcy, who is afterwards compelled to pay a secret lien for wages, is subrogated to the lien of the seamen upon the proceeds of fish caught during the voyage, which proceeds came to the hands of the assignees. | 1007 | |
| TAXATION. | ||
| See, also, “Internal Revenue.” | ||
| A party in possession and claiming title at the time a tax levy is perfected cannot acquire an outstanding title by neglecting to pay the tax or judgment, and purchasing at the tax sale. | 384 | |
| A tax deed reciting a sale to the highest bidder is void upon its face where the statute only authorized a sale of the smallest portion of the property which any one would take and pay the judgment and costs. | 384 | |
| Plaintiff in ejectment cannot recover, on a tax deed, lands originally held by the United States, without showing a sale by the United States before the levy of the state taxes; it is not necessary to show that a, patent issued. | 888 | |
| Act Wis. April 19. 1852, making a recorded tax deed conclusive in regard to any errors of officers in levying taxes and selling lands to enforce payment, held not unconstitutional. | 888 | |
| A tax deed made pursuant to sales had prior to the passage of the act may be declared void for want of a lawful notice of redemption. | 888 | |
| TENDER. | ||
| A tender of a less amount than is due is of no effect. | 267 | |
| A tender after suit brought is only effectual to stop costs from the time it is made. | 267 | |
| TERRITORIES. | ||
| Under an act extending the laws of the United States over a territory, “so far as the same or any portion may be applicable, the courts have the exclusive right to deter mine the applicability of the laws to the territory. | 1030 | |
| Congress has power to authorize the president to regulate or prohibit the introduction of distilled spirits into the district of Alaska under penalties, as prescribed by Act July 27, 1868. | 953 | |
| When distilled spirits are imported into the district of Alaska, within the meaning of the act. | 953 | |
| TIME. | ||
| Courts will regard fractions of a day when it is necessary to ascertain which of two events first happened. | 744 | |
| TOWAGE. | ||
| A tug is liable for damages done to her tows through want of ordinary care on her part. | 1181 1388 | |
| TRADE-MARKS AND TRADE NAMES. | ||
| The legislation by congress upon the subject of trade-marks cannot be sustained under the power to legislate in favor of authors and inventors, nor under the power to regulate commerce, and the act of July 8, 1870, on this subject, is unconstitutional. | 260 | |
| There may be a valid trade-mark in a stick upon which carpets are rolled, and which presents a peculiar shape and appearance at the ends of the roll. | 1024 | |
| The term “Worcestershire Sauce” is generically applied to a certain kind of table sauce, and cannot be exclusively appropriated by persons residing in Worcestershire, England. | 95 | |
| TRIAL. | ||
| See, also, “Appeal”; “Continuance”; “Evidence”; “Exceptions, Bill of”; “Judgment”; “Jury”; “New Trial”; “Practice”; “Reference”; “Witness.” | ||
| It is not error to direct the attention of the jury to the distinction between “reasonable cause to believe” and “actual belief.” | 71 | |
| Where the instructions given by the court cover the whole controversy, and are sufficiently full to enable the jury to decide the entire issue between the parties, the refusal of the court to give other instructions is not error 740 If the evidence apply to one count, which is good, and the verdict be general, the court will direct the judgment to be entered on the good count. | 855 | |
| TROVER AND CONVERSION. | ||
| Trover will lie by the general owner of goods against another, who had converted them to his own use, although a lien existed thereon in favor of a third person, who had the immediate possession. | 837 | |
| All persons aiding to deprive the true owner of his goods are liable for their con version, whether they profit by the transaction or not. | 837 | |
| In an action against a sheriff for conversion, the amount which the goods brought at the sheriff's sale is not conclusive as to their value. | 823 | |
| TRUSTS. | ||
| See, also, “Executors and Administrators”; “Guardian and Ward”; “Wills.” | ||
| Any act done by the trustee under a trust deed is evidence of the acceptance of the trust. | 457 | |
| A person who intermeddles with the property of an infant will be treated in equity as a trustee for such infant, and he will not be allowed to buy an outstanding legal title, to the infant's prejudice. | 317, 319 | |
| Where all of the living trustees having a power to sell negotiated the contract of sale, a purchaser under a deed executed by a part only, who has performed his contract, is entitled to have the heirs and legatees decreed to complete the contract. | 830 | |
| UNITED STATES. | ||
| Cases on the subject of sovereignty re viewed by Hughes, J. | 162 | |
| USURY. | ||
| Where there is no right to demand payment there can be no forbearance, and if no forbearance no usury, under the Virginia statutes. | 720 | |
| A rent charge or annuity of $500 a year in consideration of $5,000 advanced, where there was no agreement to repay the principal, held not usurious, though the grantor reserved the right of redemption. | 720 | |
| VENDOR AND PURCHASER. | ||
| See, also, “Bankruptcy”; “Deed”; “Frauds, Statute of”; “Fraudulent Conveyanees”; “Grant”; “Public Lands”; “Sale”; “Specific Performance.” | ||
| Where the agreement was that the vendor should make a deed on payment of part of the consideration, and take a mortgage to secure the balance, and the vendee entered into possession, but the vendor failed to make the deed, held, that the relation of mortgagor and mortgagee existed between the parties in equity. | 844 | |
| The record of a deed in Kentucky for lands in Ohio is no notice to a subsequent purchaser. | 457 | |
| Actual knowledge of the existence of a prior unrecorded mortgage is of the same effect as a recording. | 880 | |
| A purchaser who agreed to assume a certain proportion of the liabilities to which the land was subject held to have sufficient knowledge of a prior unrecorded mortgage given by his grantor. | 880 | |
| Visible possession and occupation by the grantee under an unregistered deed, known to a subsequent grantee, is sufficient, if not controlled by other circumstances, to war rant a finding of notice to the grantee. | 860 | |
| The vendor cannot put an end to the con tract for negligence where, he is himself in default in not returning the portion of the consideration paid by the vendee. | 844 | |
| The measure of damages in an action for refusal to convey because of a defective title held to be the purchase money, with interest, where no rents and profits have been received. | 401 | |
| Misrepresentations relied on to the disadvantage of the complaining party constitute good ground for setting aside the conveyance, though he was of sound understanding, and had time to detect the falsehood. | 1203 | |
| VENUE IN CIVIL CASES. | ||
| A motion for change must be accompanied by an affidavit stating the grounds of belief that an impartial trial cannot be had in the county in which the suit is instituted. | 482 | |
| WAR. | ||
| See, also, “Amnesty”; “Army and Navy”: “Executors and Administrators”; “Militia”; “Prize.” | ||
| The marshals of the several districts, in enforcing the regulations established by the president, under the act of July 6, 1798, in relation to alien enemies, could act without the aid of the judicial authority. | 758 | |
| The statute of limitations was suspended during the continuance of the Revolutionary War, as to alien enemies disqualified to sue in the courts of this country. | 456 | |
| The courts of a state forming part of the Confederate States had no jurisdiction during the Civil War over parties residing in states which adhered to the national government. | 675 | |
| The Civil War was no ground for suspension of legal remedies and acts of limitation in Alabama, as between citizens of the Confederate States. | 751 1389 | |
| The existence of war does not prevent the citizens of one belligerent power from taxing proceedings for the protection of their own property in their own courts, against the citizens of the other, where the latter can be reached by process. | 225 | |
| A steamboat sunk while under impressment by the Confederate government, and subsequently paid for in full, is the property of such government, and on surrender of the Confederate forces becomes the property of the United States. | 116 | |
| WAREHOUSEMEN. | ||
| The Minnesota statute of March 3, 1876, “to regulate the storage of grain,” does not abrogate the essential distinctions between bailments and sales. | 1220 | |
| A mill company's receipt for grain held to be subject to explanation by parol proof as to whether the grain was deposited merely for storage or for purposes of sale. | 1220 | |
| WASTE. | ||
| A tenant for life may cut down timber trees for the purpose of making necessary repairs on the estate, and sell them and purchase boards with the proceeds, if this be the most economical mode of making the repairs. | 867 | |
| The holder of a certificate of sale of land on execution cannot maintain a bill to re strain waste. (Rev. St. Wis. 1849, c. 102, § 100.) | 19 | |
| WATERS AND WATER COURSES. | ||
| See, also, “Canals”; “Navigable Waters”; “Riparian Rights.” | ||
| An incorporeal right to water may be granted in gross. | 860 | |
| WHARVES. | ||
| As to the right to occupy wharves in the city of Philadelphia, under the regulations and customs of the port. | 549 | |
| Under the admiralty law a wharfinger has a lien on a foreign ship for wharfage. | 451 | |
| WILLS. | ||
| See, also, “Executors and Administrators”; “Trusts.” | ||
| A devise upon certain conditions held to carry a fee when the conditions were per formed. | 1337 | |
| The rule in Shelley's Case held not to apply where there were qualifying and explanatory expressions showing clearly a different intent. | 1210 | |
| A devise of lands to be held by the executors until the last born grandchild should become of age, then to be divided among all grandchildren per capita, the issue of those dead to take per stirpes, rents and profits to be divided among the devisees in the meantime, does not create an estate in fee tail. | 1210 | |
| A devise of lands to be held until the last born grandchild became of age, then to be divided among all living grandchildren, and the issue of such as were dead, taking per stirpes, is not void as to the child of a grandchild who died before the testator, under a statute prohibiting devises except to persons in being when the will is made, or their immediate issue or immediate descendents. (Act Ohio Dec. 17, 1812.) | 1210 | |
| A devise to A. for her support during life, and at her decease to become the property of B., not to be subject to his disposal, but to descend to his children free and unincumbered; but, in case he has none living at his death, to become the property of O. in fee simple, or of her heirs if she be not then living,—construed. | 131 | |
| Under a devise to A. “and if he shall die, without an heir, before he shall arrive at the age of 21 years,” then to be equally divided among his brothers and sisters or their heirs, held, that A. took a fee simple, with an executory devise over to his brothers and sisters. | 567 | |
| Under a devise to testator's wife, for life, remainder to his daughters A. and B., their heirs and assigns, but, in case they should die without issue, then to their sisters C. and D., held that, at common law, A. and B. took joint estates for life with several remainders in tail to their issue, which, under the statute of Rhode Island, was turned into a tenancy in common, and that the several estates tail in possession vested in them. | 532 | |
| A will giving all testator's property to his children share and share alike, but postponing distribution until the majority of the youngest child, and providing that the children should have college educations chargeable to the estate and to a sufficient allowance after majority until distribution, held to five a vested interest payable at a future day. | 315 | |
| Under a direction to executors “to sell and convey or divide” testator's residuary estate equally between his widow and children, held, that the lands descended to the heirs at law, who might maintain ejectment for the same until a sale or division should be made. | 553 | |
| Grandchildren of testator born before the date of the will, to whose father a life estate was given with remainder to certain charitable uses, held to have been intentionally omitted from the will. (Gen. St, Mass. 1S60, c. 92, § 25.) | 905 | |
| WITNESS. | ||
| See, also, “Bankruptcy”; “Costs”; “Deposition.” | ||
| In assumpsit for goods sold and delivered, defendant may prove a partnership between plaintiff and a witness by such witness. | 1000 | |
| An agent who fitted out an expedition under authority of a written subscription, and drew on one of the subscribers for the expense. held a competent witness to prove the facts, in a suit by the payee of the draft against the drawee. | 1014 | |
| A broker who makes a contract on behalf of his principal to deliver stock is competent to testify as to the transaction, and his authority to make such contract, in a suit against the principal for damages for non delivery. | 696 | |
| A grantee of a deed alleged to be fraudulent is a competent witness in support of the deed, in an action against his grantee upon receiving from him a release. | 565 | |
| A counsel will not be permitted to testify as to facts disclosed by his client, upon an application to him, as a conveyancer, to draw a deed. | 565 | |
| A witness need not answer a question which does not relate to any matter of fact in issue, or to any matter contained in his direct testimony, where a truthful answer would tend to degrade him. | 453 1390 | |
| A witness may be compelled to answer the question whether he saw defendant at a public gaming table. | 556 | |
| An assertion of fact made by a wife in her husband's presence, and denied by him is not admissible to impeach his testimony. | 1258 | |
| Query, whether the circuit court of the District of Columbia can issue an attachment for a witness residing in Virginia within 100 miles. | 486 | |
| Travel fees for a witness subpoenaed out of the state can only be taxed for 100 miles. | 326 | |
| WRITS AND NOTICE OF SUITS. | ||
| Congress has power to authorize the supreme court to fix by rule the manner of serving process, and a rule providing for service of process upon an attorney is valid. | 422 | |
| Rev. St. § 914, providing that the practice, pleadings, and forms and mode of proceedings in the federal courts shall conform to those of the state courts, does not apply to the service of process. | 338 | |
| Service of subpoena to answer a cross bill may be made upon the solicitor of the complainant in the original bill, in cases of in junction to stay proceedings at law, and in cross suits in equity, where the plaintiff at law in the first and plaintiff in equity in second reside beyond the jurisdiction. | 1027 | |
| An affidavit of service of notice to take depositions, by leaving it with defendant's wife, need not state that she was informed of its purport. | 1247 | |
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