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16FED.CAS.—86
16FED.CAS.—87
INDEX.
The references are to pages. The asterisk (*) indicates that the case has been reversed.]
| Page | ||
| ABATEMENT AND REVIVAL. | ||
| The pendency of another action against defendant in the state court is no ground of abatement | 175 | |
| ACCORD AND SATISFACTION. | ||
| See, also, “Compromise”; “Payment.” | ||
| An agreement to deliver, in satisfaction of a debt, notes or money for a less sum, does not discharge the larger debt, unless fully and fairly performed in all its parts. | 1343 | |
| ACTION. | ||
| On an agreement containing a penalty, plaintiff may bring debt for the penalty only, or covenant and recover more or less damages than the penalty | 906 | |
| ADMIRALTY. | ||
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Charter Parties”; “Collision”; “Demurrage”; “Marine Insurance”; “Maritime Liens”; “Pilots”; “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping”; “Towage.” | ||
| Jurisdiction—In general. | ||
| Admiralty jurisdiction over contracts depends principally upon their subject-matter; and in cases of bottomry it is not the absolute necessity of the loan that gives jurisdiction | 938 | |
| No lien exists in the admiralty for services of stevedore in loading and storing the chip's cargo | 15 | |
| —Waters and places. | ||
| Admiralty has jurisdiction of contracts for transportation of passengers by sea. Such jurisdiction may be exercised both in rem and in personam | 835 | |
| Admiralty has jurisdiction of a contract of affreightment, though it is to be performed wholly between ports of the same state | 1006 | |
| A hand on board a sloop of over 50 tons plying on the Hudson river, between New York and Catskill, is a seaman, and entitled to sue in personam in admiralty for wages | 884 | |
| The locality of an injury is the locality of the thing injured, not of the thing causing the injury | 1157 | |
| ——Persons and property. | ||
| A public armed vessel in the service of a foreign nation is not exempted from admiralty jurisdiction on libel by one claiming title thereto | 85 | |
| The court has no jurisdiction over a claim by a contractor building a lighthouse on a mud shoal for damage caused thereto by being run into by a vessel | 1157 | |
| —Rights and controversies. | page | |
| Admiralty has exclusive jurisdiction to entertain suits on ransom bills | 513 | |
| An admiralty court has no jurisdiction to decree possession of a vessel to persons claiming title by virtue of a mortgage | 871 | |
| Admiralty has no jurisdiction of a suit between shipowners to collect a balance to be determined on settlement of joint accounts | 911 | |
| Admiralty has no jurisdiction of a claim by a part owner, dissenting from a voyage, for the use or destruction during the voyage of his share of the outfit; the remedy is in equity | 709 | |
| Admiralty cannot enforce a claim for money which has been advanced on the personal credit of the vessel owner or master in a suit in rem | 522 | |
| A mortgage or hypothecation of a vessel to secure a bill of exchange given for advances, in which it is stipulated that the lender is not to take the usual marine risks in cases of bottomry and hypothecation, does not give a lien enforceable in admiralty | 522 | |
| Admiralty has jurisdiction of a suit for the share of libelant as cooper on a whaling voyage | 337 | |
| —Torts. | ||
| Admiralty has jurisdiction to proceed in rem for torts | 128 | |
| An admiralty court has jurisdiction, under a libel in personam, to assess damages for a tort or trespass on the high seas. | 923 | |
| Seizure of a vessel by force in Long Island Sound is a maritime tort, of which the federal courts have jurisdiction in rem and in personam | 868 | |
| Seizure of a vessel in Long Island Sound, under warrant of a justice of the peace of the town of Oyster Bay, for the arrest of persons violating the rights of fishery in that bay, is a maritime tort | 868 | |
| Procedure. | ||
| Proceedings in rem in admiralty cannot be instituted against the individual interest of a part owner in a vessel | 599 | |
| ADVERSE POSSESSION. | ||
| See, also, “Ejectment”; “Limitation of Actions.” | ||
| Color of title is necessary to put in operation the statute of limitations | 153 | |
| In California, adverse possession for the time prescribed vests title | 1314 | |
| AFFIDAVIT. | ||
| Affidavits taken before notaries public cannot be read in bankruptcy proceedings | 210 | |
| AFFREIGHTMENT. | ||
| See also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Demurrage”; “Shipping.” 1354 | ||
| Where perishable cargo is sold by the master on the consignee's refusal to receive it, the vessel owners may recover from the shippers full stipulated freight, less net proceeds from the sale of the cargo | 740 | |
| A variance between the amount of a cargo of coal, as stated in the bill of lading or measurer's bill, and the amount delivered, may be explained by showing a defective method of ascertaining the weight | 573, 655 | |
| The vessel is not liable for damages caused by its sweating | 11 | |
| Quaere: Whether a general ship is liable for damage to well-stowed cargo from dampness arising from other well-stowed cargo, without special contract to that effect | 867 | |
| Where goods shipped in good order are damaged on the voyage, the burden is on the carrier to show that it was not due to his fault, or was caused by vis major | 867 | |
| ALIENS. | ||
| An alien could not become a citizen, either of a state or of the United States, by compliance with state naturalization laws, after congress passed a naturalization law | 1112 | |
| ALTERATION OF INSTRUMENTS. | ||
| The erasure of the place of payment from a promissory note is not a material alteration as it enlarges and does not limit the rights of the maker; and, where done by an unauthorized person, will not prevent recovery against the maker | 530 | |
| APPEAL AND ERROR. | ||
| A suit in admiralty in which the libel claimed more than $50 is not appealable to the circuit court where libelant admitted that a sum less than $50 was all that was due him | 110 | |
| A judgment of the orphans' court against petitioner, on demurrer to his petition for review, is subject to an appeal | 1171 | |
| A substantial defect in a declaration cannot be amended in the circuit court while the case is pending in the supreme court. | 850 | |
| An appeal from the orphans' court, Washington county, D. C., will be dismissed if the record is not transmitted within 30 days after the order appealed from | 1171 | |
| After dismissal of an appeal, the appellate court cannot affirm the judgment | 1205 | |
| An objection that certain repairs for which a lien was enforced in the district court were made in the home port cannot be set up for the first time in the circuit court on appeal, especially when not averred in the pleadings | 1301 | |
| Where no additional testimony is taken in an admiralty case the court on appeal will not readily interfere with the amount of damages decreed below | 141 | |
| Error in rulings is no ground for reversal where the appealing party had no case | 754 | |
| APPRENTICE. | ||
| In the District of Columbia, two justices cannot bind out an apprentice while the orphans' court is in session | 1215 | |
| The master is concluded by the recitals in the indentures as to the age of his apprentice | 13 | |
| ARBITRATION AND AWARD. | ||
| Notice of an award need not be given unless specially provided in the submission. | 1120 | |
| Objections to award because made without giving notice of time and place, because one party had revoked submission, and because notice of the award was served only on defendant's attorney, overruled | 1086 | |
| ARMY AND NAVY. | ||
| A contract of enlistment in the marine corps by a minor over 18 years of age without the consent of his parents may be avoided by the minor himself, or by his parents, or by the United States | 336 | |
| A minor over 18 years enlisting in the navy, without his parents' consent, on the understanding that he was of age, may be discharged on habeas corpus on petition of his father . | 235 | |
| The federal courts have jurisdiction on habeas corpus to discharge a minor unlawfully enlisted, notwithstanding the power given to the secretary of war by Acts Feb, 24, 1864, § 20, and July 4, 1864, § 5 | 33 | |
| The statutes in regard to the enlistment of minors in the navy reviewed hy Blatchford, District Judge | 235 | |
| Sentence rendered by a court-martial against an individual without notice is void | 1291 | |
| It seems that a court-martial, organized under state authority, has no power to assess fines against militiamen for failure to obey a requisition to enter the service of the United States | 1291 | |
| ARREST. | ||
| See, also. “Bail”; “Execution”; “Extradition”; “Practice in Admiralty.” | ||
| A party cannot be compelled to appear, either by capias or by attachment of his effects, when served while he is attending court as a party in another cause | 96 | |
| In an action of debt in a federal court in New York against a foreign consul for money received in a fiduciary capacity, defendant is subject to arrest under Code Proc. N. T. § 179, made applicable by Acts Feb. 28, 1839, and Jan. 14, 1841 | 175 | |
| On the arrest of defendant in an action of debt under Code Proc. N. Y. § 179, plaintiff may oppose defendant's affidavits by affidavits in addition to those on which the arrest was granted | 175 | |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | ||
| See, also, “Bankruptcy.” | ||
| A provisional stipulation that the creditors shall delay their suits against the debtors, or else forfeit their claims upon the fund assigned, is fraudulent | 793 | |
| ASSUMPSIT. | ||
| Assumpsit will lie for money due under an executed contract | 1168 | |
| The feeding and training a race horse is not an immoral consideration, and will support an assumpsit to pay for the same | 362 | |
| An action will not lie for services to defendant's slave in nursing him in his last sickness, while on a visit to plaintiff's wife, where defendant offered to remove him | 644 | |
| In assumpsit for board and lodging and articles furnished, the day stated in the 1355declaration is not material if the articles were delivered and to he paid for before the action was brought | 234 | |
| ATTACHMENT. | ||
| See, also, “Bankruptcy”; “Execution”; “Garnishment”; “Practice in Admiralty.” | ||
| A lien is not attachable as personal property or as a chose in action of the person entitled to it | 1302 | |
| Property in the hands of a lienor is not attachable in a suit against the owner, unless the lien is waived | 1311 | |
| ATTORNEY AND CLIENT. | ||
| An attorney is justified in acting according to a decision of a state supreme court, though it is afterwards reversed by the United States supreme court | 822 | |
| A proctor may maintain a suit in admiralty for his costs or fees | 39 | |
| The master who pays over Seaman's wages on garnishee process before the return day held liable for costs of proctor in libel for wages pending at such time | 39 | |
| AVERAGE. | ||
| Where the ship is chartered for a gross sum for a round voyage, and general average occurs on the outward passage, the entire freight for the whole voyage must contribute | 941 | |
| Wages and provisions are to be allowed in general average only from the time a vessel in distress alters her course to seek a place of safety, though she lay disabled for some time before | 941 | |
| If cargo is destroyed by fire, after being landed and stored in a port of refuge solely to enable the vessel to repair, it must be paid for in general average; otherwise, if it was landed and stored because it was damaged | 941 | |
| Owners of specie shipped for the purpose of purchasing return cargo, and, sold by the master on the outward passage in a port of refuge to make repairs, are not entitled to profits they might have made, but only to interest from the time they could have used the specie at the outward port | 944 | |
| BAIL. | ||
| See, also, “Practice in Admiralty.” | ||
| Bail in the sum of $500 required in an action for slander | 1266 | |
| Upon attachment of the effects of both and each of two joint debtors, bail must be given for both, to release the joint and separate effects | 382 | |
| Bail will not be received of one only to discharge his separate goods | 382 | |
| The court will not, upon affidavits, decide whether the effects attached are the joint or several property of the defendants | 382 | |
| Defendant cannot appear to a chancery attachment in Virginia without giving bail. | 1268 | |
| If defendant offers to appear on the calling of the appearance docket, time will not be given to procure an affidavit to hold him to special bail | 1294 | |
| An affidavit to hold to bail for assault and battery must state a specific injury and the amount of damages | 1308 | |
| Affidavit of administratrix to hold to bail. | 233 | |
| On surrendering his principal, the bail must give notice to the creditor | .1260 | |
| In the assessment of damages in a suit on a bail bond in bankruptcy proceedings, the pleadings are not regarded | 695 | |
| BANKRUPTCY. | ||
| See, also, “Assignment for Benefit of Creditors”; “Insolvency.” | ||
| Power of congress. | ||
| Congress has no power to vest jurisdiction in the state tribunals to carry into effect the bankrupt law | .253 | |
| Operation and effect of bankruptcy laws, and of proceedings thereunder. | ||
| A national bank cannot be proceeded against in bankruptcy | 665 | |
| The district court in bankruptcy may declare the lien of a judgment of a state court void as against general creditors if it is an unlawful preference under the bankrupt act | 549 | |
| The district court in bankruptcy may restrain a sheriff from selling the bankrupt's property on execution issued on a state court judgment obtained before commencement of the bankruptcy proceedings | 549 | |
| A lien under the state law may be enforced by the state court, but the state court has no jurisdiction of a suit by the assignee in bankruptcy to set aside such a lien for fraud in its creation | 253 | |
| Where the enforcement of a lien in the state court will have the effect to draw to its jurisdiction the administration of the bankrupt law, the federal circuit court will interpose by injunction | 253 | |
| The levy of an execution on property mentioned in the schedule will be restrained at any time after the petition is filed, unless it be shown that the petition was not bona fide | 1331 | |
| The state court is the proper tribunal to pass upon the distribution by an executor of moneys received from a bankrupt's estate | 526 | |
| Jurisdiction of courts. | ||
| Petitioner had lived with his father in New Jersey for four years, and had kept books for a firm in New York City for six months prior to filing his petition in the Southern district of New York. Held, that the court had no jurisdiction | 406 | |
| An adjudication of bankruptcy of a firm on the petition of one member is void as to members living outside the district, and having no place of business therein | 875 | |
| The federal courts have jurisdiction of a suit to set aside a contract upon grounds created by the bankrupt law, and will entertain jurisdiction to prevent their others being placed in unreasonable jeopardy. | 503 | |
| A district court of another district than that in which the original petition was filed may make all lawful orders and decrees in bankruptcy as to persons and property within the reach of its process and out of the reach of the process of the other court. | 103 | |
| Under the act of 1841, the district court has jurisdiction to enjoin a creditor within its territorial jurisdiction from prosecuting suits therein, and in other states, affecting the property of the bankrupt | 874 | |
| The circuit or district court of the district in which the bankruptcy proceedings are pending, and only such courts, can enjoin the prosecution of a suit in a state court of another state, commenced after the bankruptcy proceedings are instituted. | 769 | |
| The circuit court of one district, in a suit by an assignee appointed by a district court in another state, cannot enjoin a suit to foreclose a mortgage in the state court of a third state | 769 1356 | |
| Whether process in bankruptcy can be rightfully served on parties interested outside the district in which the bankruptcy proceedings are instituted, query | 769 | |
| In the collection and distribution of the effects of the bankrupt, the circuit court has concurrent jurisdiction with the district court | 253 | |
| The circuit court has jurisdiction in all cases where a suit is brought by or against the assignee in bankruptcy | .253 | |
| The district court has no power to determine by summary procee lings the validity of the title of a general assignee for the benefit of creditors | 857 | |
| Commencement of proceedings—Voluntary bankruptcy. | ||
| Where the interlineations in a petition are small and not such as affect its sense, the decree will not be denied on that ground. | 540 | |
| The petition and schedules may be verified by the debtor's attorney, if he is a notary public | 1102 | |
| —Involuntary bankruptcy. | ||
| The dissolution of a firm does not affect the right to file a petition against the members of the firm as partners | 89 | |
| If the requisite number of creditors join in a petition against a firm, they need not all be firm creditors | 1109 | |
| The receipt by a creditor of part of his claim will not preclude his filing a petition if he offer to bring such payment into the registry of the court | 699 | |
| Where it appears that the claims of creditors alleged to exceed $250 each did not amount to such sum, held, that the petition was defective, but might be amended to conform to the facts | 210 | |
| A statement in the petition, upon belief, without averring either knowledge or information, that petitioners constitute the required number and amount, is sufficient. (Act 1867, § 39, amended June 22, 1874, § 12.) | 634 | |
| The oath to such petition may be in the form prescribed in form No. 54 | 634 | |
| A deposition as to acts of bankruptcy, in an involuntary proceeding, cannot be amended | 1218 | |
| The omission of the commissioner who took the deposition in proof of debts to sign the jurat may be supplied | 210 | |
| Objections to the verification of the petition are waived by taking issue thereon and demanding a jury trial | 323 | |
| Acts of bankruptcy. | ||
| One whose mind is so unsound as to be wholly incapable of managing his affairs can commit no act by which he can be forced into bankruptcy against the objection of his guardian | 927 | |
| A fraudulent chattel mortgage on the bankrupt's stock of goods, made with intent to hinder, delay, and defraud creditors, is an act of bankruptcy | 210 | |
| The use of property of an insolvent firm to pay debts not of the firm is an act of bankruptcy, though each partner is liable for the debt | 1109 | |
| A note and a duebill given for money loaned to a manufacturing company, payable on demand, are not “commercial within,” within the meaning of section 39, Act 1867 | 16 | |
| The object for which the money was borrowed cannot affect the character of the instrument given as evidence of the indebtedness | 16 | |
| Accommodation paper signed by a trader is not his commercial paper under the amendment of 1874 | 192 | |
| Suspension of payment of a negotiable note given by a retired trader for a trade debt is not an act of bankruptcy | 192 | |
| Renewed commercial paper stands on the same footing as the original paper | 192 | |
| The stockholders of a trading corporation having agreed to lend it money, one ave his note, which the company indorsed and agreed to provide for at maturity. It failed to do so, and the promisor paid it within 14 days. Held, not an act of bankruptcy by the corporation | 1067 | |
| Suspension of payment of a note, liability on which is contested, is not an act of bankruptcy | 246, 639 | |
| The suspension of payment of a single piece of commercial paper, where the debtor supposed he had arranged for an extension, is not an act of bankruptcy | .246 | |
| A single act of stopping payment of negotiable paper for 14 days is prima facie an act of bankruptcy | 323 | |
| A person who guarantied paper given by partners in settlement of their indebtedness, and subsequently became a partner with them, cannot be made a party to bankruptcy proceedings founded on nonpayment of such paper | 642 | |
| Failure of a stockholder to object to the giving of a mortgage to secure another stockholder for advances held to estop him from setting up the mortgage as an act of bankruptcy | 1067 | |
| Warrant: Arrest: Bail. | ||
| On application for a provisional warrant and order of arrest of the debtor under section 40, Act 1867, a separate petition, supported by affidavits of persons having knowledge of the facts; should be filed, where the facts are not stated in the petition of the petitioner's own knowledge | 210 | |
| The provisional warrant does not authorize the marshal to take possession of property, the legal title to which has passed to a voluntary assignee of the bankrupt | 569 | |
| Such property will be restored to the voluntary assignee, on petition by him, only on condition of his releasing the marshal from all damages, and his agreeing not to dispose of the same except with the approval of the bankrupt court | 569 | |
| The marshal is responsible for seizing property not belonging to the bankrupt, and the petitioning creditors who have indemnified him are bound to defend a suit by the claimant | 764 | |
| An action of debt lies upon a bond given by a bankrupt conditioned for his appearance in court from day to day agreeable to its order | 695 | |
| What amounts to a breach of the condition of such bond, and the damages recoverable thereon | 695 | |
| Schedule. | ||
| Every article of family stores and wearing apparel, generally described, need not be set out | 540 | |
| Adjudication. | ||
| An adjudication may be made against one partner only, upon a partnership debt. | 1328 | |
| There is no legal fraud in procuring an adjudication on involuntary proceedings, unless it should be followed by a discharge which could not be had in voluntary proceedings | 1109 | |
| Where a member of an insolvent firm has been adjudicated a bankrupt, his assignee takes all the effects of the firm | 251 | |
| An adjudication of bankruptcy, had after due service by publication, is final, and will not be set aside on petition of the bankrupt and creditors disputing the allegations of the petition in bankruptcy | 218 | |
| A creditor seeking to vacate an adjudication must use due diligence. A delay of nearly a year by one who did not oppose the bankrupt's discharge held laches | 1281 1357 | |
| Adjudication ordered annulled on the assent in writing of all known creditors | 382 | |
| Meeting of creditors: Notice. | ||
| Proceedings at a meeting held on Thanksgiving day not set aside where no one was injured thereby | 122 | |
| Assignee—Election, appointment, and removal. | ||
| The bankrupt may object to the confirmation of assignees | 122 | |
| An assignee must give a special bond in each case where a bond is required; a general bond is not authorized | 85 | |
| An assignee, clerk of the bankrupt's attorney, who is charged with mismanagement, and whose removal is asked by the creditors, will be removed, but he will be protected against costs, where it appears that he acted in entire good faith | .546 | |
| —Rights, duties, and liabilities. | ||
| The property and rights of the bankrupt are vested in the assignee by relation from the time of filing the petition in bankruptcy | 253 | |
| When a parcel of the bankrupt's land is wholly absorbed by the first lien, the assignee is under no duty to ascertain the validity of subsequent liens | .1147 | |
| Suppression of material facts by the assignee while obtaining authority from the court to make a contract to pay counsel one-half the gross recovery in a cause makes the contract invalid, but a reasonable sum will be allowed | .1223 | |
| —Discharge. | ||
| The court may set aside a discharge of the assignee, which has inadvertently found its way into the court files, and order him to proceed | .1223 | |
| Property of bankrupt—Custody and control. | ||
| A provisional assignee will not be appointed unless the court is satisfied that it is necessary for the protection of the property, and that it will inure to the benefit of all the creditors | 593 | |
| The removal of the debtor's goods in fulfillment of an existing contract, made long before the commencement of the bankruptcy proceedings, is not sufficient ground. | 593 | |
| A receiver will be appointed for property incumbered by liens before the court for adjustment, although the bankrupt has relinquished possession to a prior incumbrancer | 262 | |
| On breach of the condition of a bond given, pursuant to an order of the court, for the forthcoming of property, which the bankrupt is allowed to retain, the court may' proceed against the sureties by summary petition | .1262 | |
| Such a proceeding is not barred by the fact that the assignee previously brought a suit at law on the bond, resulting in a verdict for defendant, which was set aside and a new trial granted | 1262 | |
| —Exemptions. | ||
| The approval by congress of the new constitution of North Carolina did not operate as an amendment of the bankrupt law with respect to exemptions therein provided for | 239 | |
| Househould furniture and other articles are exempt, though taken under execution before commencement of the bankruptcy proceedings | 880 | |
| Where a conveyance of the homestead has been set aside at the suit of the assignee, the homestead rights remain, and the assignee holds subject to them | 90 | |
| Where property of an insolvent firm was sold within a month of the commencement of the proceedings, and the proceeds divided, and one partner, with his share, purchased property exempt by the state laws, held that it was not exempt, but must be deemed partnership assets | 1338 | |
| In Ohio, a head of a family, who has no homestead, and all of whose personalty is covered by a chattel mortgage, is entitled to an exemption of $500, out of the proceeds of such personalty | 1207 | |
| The head of a family owning a single piece of real estate, mortgaged by himself and wife for more than its value, is not, after condition broken, the owner of a homestead, under the laws of Ohio | 1207 | |
| The exemption is not allowable until after the bankrupt has passed his last examination | 1080 | |
| —Liens. | ||
| A judgment creditor in North Carolina in 1867 issued execution, but obtained no levy, because enjoined by the military commandant. Junior judgment creditors afterwards made a levy, and, the debtor having become bankrupt the land was sold by the assignee free of incumbrances, pursuant to an agreement with the sheriff. Held, that the senior judgment creditor had no lien by which he could claim part of the proceeds | 1304 | |
| No lien can be created by the bankrupt or by a judgment after the time of filing the bankrupt's petition | 283 | |
| A levy made on goods in the hands of an assignee under a general assignment for creditors, subsequently set aside as in fraud of the act, creates a valid lien | 41, 282 | |
| A judgment obtained bona fide before the petition is filed is a valid lien. (Act 1841, § 2.) | 283 | |
| A lien given by the lease on specified property on the demised premises is valid against the lessee's assignee in bankruptcy. | 252 | |
| The issuing of a fi. fa. upon a judgment in 1861, after the lapse of a year, held not to create a lien on realty in North Carolina | 151 | |
| The district court cannot go behind a judgment of a state court and inquire into the consideration of the debt upon which it was founded | 225 | |
| A creditor attaching lands of the bankrupt in a state court over four months before commencement of the proceedings may proceed to judgment and execution unless the assignee intervenes | 1147 | |
| A mortgage given on both land and personalty will be enforced as to the land first, where there are other liens on the personalty | .280 | |
| The federal court will not take jurisdiction where the liens on the bankrupt's property will more than absorb it | 283 | |
| —Sale. | ||
| It is not the duty of the assignee to petition the court respecting the sale of incumbered property, unless he believes it will produce a fund in excess of the incumbrances | 1304 | |
| A sale by the assignee without an order of court is subject to all lawful incumbrances | 1304 | |
| A sale by the assignee free from all liens will not divest liens of judgments not specified in the petition or order of sale | 107 | |
| A simple confirmation by the court is not a ratification of the act of the assignee in excess of his authority | 107 | |
| Nor does the presence of the judgment creditor at the sale estop him, where there was no authority to sell clear of his judgment | 107 | |
| A sale of incumbered land free of the incumbrances, without notice to the lien creditors, may be set aside by the court on petition of such creditors and notice to the purchasers | 526 | |
| The voluntary assignee has no right to buy of the marshal a stock of goods ordered 1358by the court to be sold as likely to deteriorate, and such sale will be set aside on motion of the assignee | 700 | |
| Where mortgaged personalty of an absconded bankrupt was sold by agreement, under order of court, and the proceeds paid into court, held, that the right thereto, as between the mortgagee and assignee, must be determined by a petition for distribution, and not by suit | 1084 | |
| Proof of debts—What is provable. | ||
| A debt not due at the time of the bankruptcy cannot be proved under the act of 1800 | 765 | |
| Pent payable monthly under a lease is not provable tor any time subsequent to the filing of the petition | 1265 | |
| A claim founded on a judgment recovered after commencement of the proceedings, without leave of the bankrupt court, is not provable | 1221 | |
| The running of limitation against claims is arrested by the filing of the petition, and the suspension continues so long as there is a fund to distribute | 1221 | |
| Money advanced by a firm to a member beyond his share of the capital is a separate debt of the firm against such member, and the assignee of the firm may prove it | 240 | |
| If there is any joint fund, however small, even if purposely created by separate creditors by purchasing worthless partnership assets, partnership creditors cannot prove against the separate estate concurrently with separate creditors. | 929 | |
| A holder of different notes, all made for partnership debts, but some executed by the firm, and indorsed by the partners, and others made by individual partners, may prove the former against the firm, and the latter against the individual, assets | 1277 | |
| The assignee cannot prove against the separate estate of a partner for moneys withdrawn by the latter from the firm without fraud against his copartners, though with knowledge of insolvency of the firm | 1209 | |
| When a debt from one partner to a bankrupt firm was incurred by the consent or privity of the other partners, proof of the joint creditors against the separate estate will not be admitted | 82 | |
| Where there is a surplus in the hands of the assignee after paying all other creditors in full, he cannot object to proof of a claim by a judgment creditor from whom he has recovered the amount collected on his judgment | 132 | |
| —Secured debts. | ||
| A firm creditor, whose debt is secured by pledge of individual property, is bound, on request of the individual creditors, to prove his whole debt against the joint assets. | 1208 | |
| —Set-off. | ||
| A creditor may set off notes of the bankrupt purchased with knowledge of his insolvency but before the filing of a voluntary petition | 1154 | |
| A debtor buying a claim against the bankrupt after known insolvency and contemplated bankruptcy cannot set it off against his debt | 1149 | |
| The acceptor or indorser of a bill of exchange, who pays it after the bankruptcy of the drawer, may offset the same against the bankrupt's assignees, if the debt was subsisting when the action was brought | 765 | |
| A bond due from a bankrupt to defendant cannot be set off against defendant's note to a third person, assigned to the assignee in bankruptcy after commission issued | 154 | |
| —Procedure. | ||
| Proof of claims may be filed after an order discharging the assignee has been set aside and the assignee ordered to proceed. | 1221 | |
| The claim of a broader lien than the facts warrant will not affect the actual lien of the creditor | .225 | |
| Informality in proofs will not avail where the creditor, as a witness, has sworn positively of his own knowledge | 225 | |
| —Allowance or rejection of claim. | ||
| The whole claim will be rejected where an invalid part is intentionally included by the creditor | 780 | |
| The register cannot order or permit the withdrawal of proof of a debt after he has passed upon it, and allowed, certified, and transmitted the claim to the assignees | 151 | |
| Payment of debts: Priority: Dividends. | ||
| A claim by the warden of a state prison for the price of goods sold as the state's agent is entitled to priority | .1331 | |
| The individual and firm creditors have the primary right to resort to the respective estates | 240 | |
| A debt due by one partner for money advanced to him by the firm cannot be enforced for the use of the creditor copartners until all the joint creditors are fully satisfied, though provable as a separate debt of the firm | 240 | |
| Real property purchased with partnership funds is to be treated as personalty, and judgment creditors have no prior lien thereon | 782 | |
| Firm and individual creditors are paid ***ari passu out of the separate estates of the partners, where the joint estate is all expended in payment of costs | 82 | |
| Where lands are sold by the assignee free of incumbrances, pursuant to an agreement with a sheriff who had levied executions thereon, the execution creditors are entitled to payment from the proceeds | .1304 | |
| Examination of bankrupt, etc. | ||
| A judgment creditor may refuse to be examined in relation to a question of usury in a debt for which the judgment was rendered | 225 | |
| Original papers referred to in the bankrupt's deposition, and annexed thereto, cannot be withdrawn from the files at the option of the bankrupt | 315 | |
| A bankrupt summoned by a creditor to appear as a witness is not entitled to witness tees | 315 | |
| Adjourning or certifying questions to court. | ||
| On the adjournment into court of the question of granting a new trial, the whole case must be brought fully before the court. | 790 | |
| Whether the bankrupt is entitled to a discharge is a question which cannot be certified to the court by the register | 1191 | |
| Costs: Fees: Disbursements. | ||
| The petitioning creditor is entitled to his costs and reasonable expenses in procuring the adjudication, but not to compensation for his personal services | 1274 | |
| A docket fee of $20 is only allowable in involuntary cases, and where there has been a denial and jury trial | .1274 | |
| The register is not entitled to the fee of one dollar for making an order for the examination of the petitioner in bankruptcy on application of a creditor | 148, 228 | |
| A creditor applying for an order for the examination of the bankrupt must pay the register's fees for taking the bankrupt's depositions both on direct and cross examination | 148, 228 | |
| Considerations stated which govern additional allowances to assignees in bankruptcy under general order No. 30 as amended | 675 | |
| Compensation allowed attorneys employed by the bankrupts who procured the discharge of a warrant of arrest against one 1359of the bankrupts and prepared the schedule and inventory required by section 41, Act 1867 | 659 | |
| The rent of leased premises in which was a stock of goods in the possession of the marshal until the appointment of the assignee is not payable out of the estate. | 126 | |
| An assignee under a general assignment for creditors made by an insolvent debtor, subsequently set aside, held entitled to his disbursements | .41 | |
| On examination of the bankrupt, at the instance of a creditor, the bankrupt must pay the expense of taking down statements made in his own behalf, after the examination for the creditor is finished | 1302 | |
| Discharge—Proceedings to obtain. | ||
| Failure to apply within a year after adjudication prevents discharge | 881 | |
| Adjournment of the examination of the bankrupt warrants adjournment of proceedings on an order to show cause why discharge should not be granted | 1194 | |
| On application after 60 days from the adjudication, the notice, form No. 52, need be served only on creditors who proved their debts, though containing a notice of the second and third general meeting of creditors | 150 | |
| It is not necessary, in such case, that the request of the assignee, form No. 28, should be furnished the register | 150 | |
| On withdrawal of specifications in opposition, the bankrupt must take anew the oath required by section 29, Act 1867 | 146 | |
| Payment of creditors' counsel fees does not show procurement of their assent by a pecuniary obligation, where they have previously announced that they would not oppose discharge | .1193 | |
| —Proceedings in opposition. | ||
| A creditor who has not entered his opposition and filed his specifications within a proper time and according to rule cannot oppose the discharge | 352 | |
| Creditors will not be allowed to intervene, after the return day, to prosecute specifications filed by a creditor whose claim was stricken out after the filing of such specifications | 36 | |
| Leave to amend defective specifications will not be granted on application after lapse of a month from the granting of the discharge | 150 | |
| An allegation of destruction, mutilation, and falsification of papers is defective, unless an intent to defraud creditors is averred | 857 | |
| Specifications of opposition merely charging concealment, transfer, etc., of property, without specifying the property, are too vague | 1192 | |
| A specification of opposition stating that the bankrupt procured the assent of certain creditors, without stating that he did so by means of a pecuniary consideration, is insufficient | 1192 | |
| —Acts barring. | ||
| Fraud consummated under an assignment for benefit of creditors before, and not in contemplation of, the passage of the act (1841), does not bar a discharge | 89 | |
| Loss of property by gaming will bar a discharge, though it was acquired by gaming | 827 | |
| One buying and selling stocks through brokers is not a merchant or tradesman, and may be discharged, though he has kept no books of account | 857 | |
| Discharges cannot be granted where the entries of receipts and disbursements in the cash books are unintelligible | 156, 157 | |
| The absence of a cash book by partners engaged in lumber dealing will not bar a discharge, where each partner kept a bank account and an account book of receipts and expenditures | 792 | |
| —Scope and effect. | ||
| Where there are no partnership assets to be collected and distributed, an individual member of a former partnership may, upon his own petition, be discharged from all his debts, both partnership and private | 763 | |
| The election of the United States to take judgment upon a bond given to secure a claim against a vessel held to prevent them from proving it as a debt due from the bankrupt obligor; and such debt is not affected by the discharge previously obtained 660 The liability of a guardian to his ward is not affected by his discharge | 1221 | |
| A discharge does not bar the assignee's right to recover property afterwards discovered | 1223 | |
| Counsel employed by the bankrupt, prior to the proceeding, to carry on a suit at their own expense for a contingent fee of one-half their recovery, are entitled to such one-half, though they recover after the bankrupt's discharge | 1223 | |
| —Vacating: Setting aside. | ||
| A discharge will not be set aside for alleged fraudulent acts, where the only evidence offered is incompetent and inadmissible | 754 | |
| Prohibited or fraudulent transfers. | ||
| Any mortgage or other lien which is intended to give a preference to one or more creditors over others is void | 253 | |
| A general assignment for benefit of creditors is not necessarily in fraud of the bankrupt act | 857 | |
| A general assignment in contemplation of a state of insolvency is a fraud against the bankrupt act (1841) | 251 | |
| A general assignment by an insolvent for the benefit of creditors to one who is not a bona fide creditor or purchaser without notice is void. (Act 1841, § 2.) | 282 | |
| A general assignment without preferences, made by an insolvent debtor within three months of the filing of the petition in bankruptcy, will be set aside | 41 | |
| An assignment for benefit of creditors is not fraudulent for stating the assignor's desire to distribute his estate without the sacrifice incidental to judicial sales and to winding up an estate in bankruptcy | 857 | |
| A warrant of attorney to confess judgment, executed by an insolvent within 60 days of filing a petition in bankruptcy, is void, and proceedings founded thereon are of no effect | 253 | |
| Conveyance of property in part or whole satisfaction of a debt, by one knowing himself insolvent, is a fraudulent preference | 907 | |
| A merchant knowing that he cannot pay his debts in the ordinary course of business must be held to have knowledge of his insolvency | 907 | |
| A conveyance made two months before petition filed is not void if the grantee acted fairly and had no notice of the bankrupt's unlawful intention. (Act 1841, § 2.). | 264 | |
| A conveyance of property in contemplation of a state of insolvency is void under the bankrupt law | 253 | |
| “Contemplation of bankruptcy” means a thorough breaking up of the bankrupt's business | 264 | |
| A sale of goods with a view of giving a preference to a creditor who has reasonable cause to believe the debtor insolvent is void | 68 | |
| “Reasonable cause” in such case means a state of facts which would put a prudent man upon inquiry as to the condition of the person from whom he purchases | 68 1360 | |
| Ignorance of the law cannot avail creditors who, knowing of facts showing insolvency, yet receive property in satisfaction of their debts | 907 | |
| A creditor of a banker who receives payment of his debt after knowledge that the debtor has suspended payment and closed his doors is liable to the assignee for the amount received | 774 | |
| That property of a debtor is sold under execution is evidence that the creditor has reasonable cause to believe that the debtor is insolvent and contemplates bankruptcy | 1240 | |
| That a merchant, having no defense to debts maturing in his current business, submits to be sued for them, is strong evidence of insolvency | .1240 | |
| Knowledge by an attorney, who sues to recover a debt, of facts which will make the collection of the debt a preference, is imputable to his client | 1240 | |
| Inability to pay debts in the ordinary course of business, as merchants usually pay them, is insolvency within the act of 1867 | 907, 1240 | |
| The taking of a mortgage by a bank from its debtor does not show that the bank considered him to be insolvent, nor that the mortgagor contemplated bankruptcy | 264 | |
| A mortgage by a merchant to secure payment for goods to be furnished on credit held valid to the amount of goods actually furnished in good faith | 927 | |
| Dissolution of an insolvent partnership, and the giving of notes for the money put in by the retiring partner to the person from whom he borrowed it for that purpose, indorsed by a third person, who was secured by a mortgage of firm property, held a fraudulent transfer | 1149 | |
| The assignment of a lease by the lessor to secure a debt held valid against his assignee in bankruptcy | 1300 | |
| A judgment confessed within two months before filing the petition, where the bankrupts had broken up their business, and all proceedings under it, held void | 264 | |
| Where a transaction for securing a debt is out of the ordinary course of business, it is prima facie fraudulent | 907 | |
| A sale of an entire stock of goods is presumably fraudulent, and the purchaser must show that he used all reasonable means to ascertain that the sale was an honest one | 503 | |
| A contract made within two months of the bankruptcy must be affirmatively shown to be bona fide | 264 | |
| Suits and proceedings in relation to the estate | ||
| The federal circuit court has jurisdiction of/an action to set aside a general assignment by the bankrupt, and distribute the property among the lien and general creditors | 282 | |
| The bankrupt court may authorize a creditor to proceed in the usual way to collect his debt | 107 | |
| An order made in composition proceedings appointing the bankrupts custodians of their property does not permit them to maintain a suit under Rev. St. § 4979 | .103 | |
| The assignee, suing as such, must produce the commission and proceedings and deed of assignment | 153 | |
| The assignee may proceed in a summary manner by petition to collect the bankrupt's assets | 764 | |
| The assignee of a corporation for the purposes of a suit to recover back a dividend wrongfully declared stands precisely in the position of the corporation | 506 | |
| The assignee may file a bill against all incumbrancers to ascertain the validity, priority, and amount of incumbrances. | 258, 264 | |
| Adjudication of bankruptcy on a petition charging fraudulent conveyance does not estop the grantee from claiming that the conveyance is valid as to him | 857 | |
| Property recovered, after the bankrupt's discharge, by means of a suit in which the assignee was substituted as plaintiff more than two years after his appointment, cannot be claimed by the bankrupt on the round that the action was barred | 1223 | |
| A decree declaring a conveyance void at the suit of the assignee, and directing defendant to convey to the assignee, does not establish title in the assignee under such de fendant, nor any privity between them | 90 | |
| One compelled to surrender to the assignee property purchased with knowledge that it was fraudulently conveyed is not entitled to reimbursement for improvements, or for money advanced to reduce incumbrances | 1277 | |
| Review. | ||
| An order for the sale of lands of the bankrupt free of incumbrances may be reviewed in the circuit court under section 2, Act 1867 | 769 | |
| The circuit judge has power in vacation, at his chambers, outside the district, to entertain and act upon a petition for review. | 769 | |
| A petition filed by the bankrupt after discharge, praying that certain money recovered for his estate since the discharge might be applied to his debts and the costs of the proceedings, and the balance paid to him, is not a bill in equity, but a petition, and a decree there under is reviewable by petition | 1223 | |
| Arrangement with creditors: Composition. | ||
| A second meeting will be ordered where the object of the first one failed by reason of the mistakes or misinstructions of attorneys for creditors | 69 | |
| Creditors who have not proved their debts are not entitled to vote on proposals for compositions | 1093 | |
| A provision of the agreement that the proceedings may be discontinued at any time without notice to the creditors is not binding on the court . | 313 | |
| Confirmation of a composition payable in equal quarterly installments in three years refused where a defaulting officer was continued in office | 313 | |
| A composition is none the less payable in money because the payment is postponed to a future day | 313 | |
| In a voluntary proceeding in which a composition had been agreed upon for payment of 30 per cent, in cash, held, that a discontinuance and restoration of the property would not be decreed on petition of the” bankrupts joined in by a majority of creditors until the terms of the composition had been carried out | 207 | |
| A composition agreement, where no assignee was appointed, held to bind creditors in another state whose names were entered on the schedule, but not to affect their rights in rem against property attached | 103 | |
| BANKS AND BANKING. | ||
| Construction of special charters of certain Ohio banks . | 264 | |
| A charter authorizing a bank to discount notes, etc., on banking principles, does not make void a contract or note reserving more than 6 per cent, interest | 264 | |
| The Bank of the United States is bound to pay the full amount of a note which has been cut in two, and each part mailed separated to it, though but one part is received. | 885 | |
| A bank president borrowed money for his personal use, on the security of shares of 1361stock fraudulently issued to him. The money went into the assets of the bank. Held, that it was liable therefor | 602 | |
| It is within the authority of a cashier to sign a blank transfer on a certificate of stock held as collateral, and deliver the certificate to the pledgor, on payment of the loan | 1113 | |
| A declaration at law by a single bank creditor to enforce the charter liability of one stockholder, who owns nearly all the stock, for twice the amount of his shares, is not demurrable where it does not appear that there are any other creditors | 804 | |
| National banks may hold real-estate security acquired by subrogation from a holder of a negotiable note | 1094 | |
| A national bank cannot purchase its own stock | 568 | |
| To relieve the holder of national bank stock from the obligations imposed by law, the transfer by him must be made on the books of the bank to some person capable of succeeding to his obligations | 568 | |
| Stockholders of an insolvent national bank are bound by the action of the comptroller in making an assessment against them, and have no right to examine the accounts of the receiver as to the assets or debts of the bank | 568 | |
| The jurisdiction of the federal circuit court on a creditor's bill against a national bank, for discovery and other relief upon allegations of fraud by the officers, is not superseded by the appointment of a receiver by the comptroller | 71 | |
| In such case, the costs of a master appointed to investigate the affairs of the bank will be ordered to be paid by the recover | 768. | |
| Where usurious interest has been actually paid, double the amount thereof may be recovered from a national bank under Rev. St § 5198 | 768 | |
| An assignee in bankruptcy is a “legal within,” within Rev. St. § 5198, and may sue to recover usurious interest paid to a national bank | 768 | |
| BILLS., NOTES, AND CHECKS. | ||
| Orders. | ||
| An order drawn on a general or particular fund does not amount to an assignment of that part, or give a lien, as against the drawee, unless there has been an express or implied acceptance by him | 299 | |
| Letter of credit. | ||
| The acceptor of bills drawn under the usual forms of commercial letters of credit can compel the holder of the letter to furnish funds to meet the acceptances; and a bill due by the issuer of the letter to the holder cannot be set off against this obligation | 8 | |
| Validity. | ||
| It is a good defense to a note given in 1864, for the hire of slaves, that, as part of the consideration, the hirer was to keep them out of reach of the Federal army | 888 | |
| Indorsement and transfer. | ||
| One holding a promissory note as collateral security is not a purchaser for value | 155 | |
| Notes given by factors by way of advances on goods consigned, where not in excess of the value of the goods cannot be held to be accommodation paper | 676 | |
| Fraud in the origin of a negotiable note is no defense against a bona fide holder | 1038 | |
| A member of a company, who individually discounts a note belonging to the company, without knowledge of fraud in its origin, is yet affected by the fraud of the company's agent | 1038 | |
| The holder must show the insolvency of the maker, to maintain suit against the indorser | 153 | |
| An indorser is in any event liable to his indorsee only for the amount actually paid by the indorsee, with lawful interest thereon, and not for the face value of the note. | 676 | |
| One indorsing a note, after previous indorsement by two others for accommodation of the maker, may recover from either of them the whole amount paid by him to take up the note | 1048 | |
| The indorsers of accommodation paper are considered as joint sureties, and liable to contribution | 41 | |
| On a several indorsement for the accommodation of the maker of a note, one indorser, who is obliged to take up the note, may recover his proportion from the other. | *488 | |
| Demand: Notice: Protest. The custom of merchants as to days of grace does not apply as between maker and payee | 231 | |
| To hold the indorser of a note payable on demand demand must be made within a reasonable time. An unexplained delay of seven months is unreasonable | 918 | |
| Demand by a notary public, the day after the last day of grace, upon the indorser at his house (where the note was payable), without inquiring for the maker, or whether he had funds there, held not sufficient to bind a second indorser | 1307 | |
| Testimony of a notary that he made demand at the shop of an indorser, but did not remember whether he saw him, held not sufficient proof of notice | 1307 | |
| Where Sunday is the last day of grace, demand must be made on Saturday, but notice may be given on Monday | 82 | |
| If Sunday be the last day of grace, the demand, protest, and notice may be on Saturday, and suit may be instituted the same day, after banking hours | 592 | |
| The accommodation drawer of a check on a bank in which he had no funds is entitled to notice of nonpayment, where the holder took it with knowledge that the drawer had reasonable expectations that the drawee would furnish funds to meet it. | 155 | |
| Notice to an indorser should be given, though he be beyond sea, if his residence is known, and reasonable diligence should be used to find his place of residence | 312 | |
| A notice left at a boarding house where the indorser resided when it was drawn, but which he had left without the holder's knowledge, having embarked for Europe, held sufficient | 312 | |
| Release or discharge of indorser. | ||
| The indorser is released where, without his consent the holder assents to the discharge of the maker in bankruptcy | 36 | |
| Plaintiff must show, in an action against the indorser, that he instituted his suit against the maker in due time, and prosecuted it diligently to an ineffectual execution | 591 | |
| A promise by an indorser to pay, after being discharged by neglect of due notice, is not binding unless made with knowledge of all material facts | 918 | |
| Actions. | ||
| In Georgia, both total and partial failure of consideration is pleadable in defense to sealed notes or single bills | 888 | |
| A note in the hands of an assignee is prima facie evidence that the face thereof was paid by him for it, but the assignor can prove what actually was paid | 896 | |
| Due diligence in making demand and giving notice cannot be inferred from the 1362fact that the parties to a check resided in the same town, and that the drawer was insolvent | 218 | |
| BILLS OF LADING. | ||
| See, also, “Admiralty”; “Affreightment”; “Carriers”; “Demurrage”; “Shipping.” | ||
| The master is bound to give a bill of lading when goods are laden on board, even if the freight is not agreed on, or there is a dispute about it; and in such ease the bill need not specify the freight | 1250 | |
| A bona fide purchaser of a bill of lading to consignee or order may hold the ship liable, though the goods are replevied on arrival by one who sold them to the shipper, for nonpayment of the price. (Affirming 956.) | 955 | |
| A vessel is liable to a consignee who has advanced money on the bill of lading, although the goods were illegally seized by the customs authorities at the commencement of the voyage | 1108 | |
| A bill of lading stating the weight of the cargo on the representations of the shipper, without weighing, binds the consignee to pay freight on such weight, where he receives the goods without weighing them | 563 | |
| The acknowledgment that cargo was received in good order may be explained or disproved by parol testimony | 867 | |
| The option to reconsign under the provision “with shipper's reconsignment option” cannot be exercised by the consignee; and parol evidence is inadmissible to show a usage to the contrary | 123 | |
| The answer, in an action on a bill of lading, which fails J:o allege that the damages claimed accrued from the sweating of the vessel, is amendable | 11 | |
| BONDS. | ||
| See, also, “Counties”; “Municipal Corporations”; “Principal and Surety”; “Railroad Companies.” | ||
| A bond under seal, perfect in all respects, held valid against the sureties, notwithstanding their testimony that they signed on condition that another signature should be obtained | 1261 | |
| The liability of sureties signing a bond, given pursuant to an order of court copied therein, is unaffected by anything the obligee may tell them as to their liability. | 1262 | |
| In debt on a bond with collateral condition, nothing is recoverable but what the obligee is entitled to on a breach of the condition | 1073 | |
| BOTTOMRY AND RESPONDENTIA. | ||
| The risk of the lender, and his right to repayment only on the safe arrival of the vessel, constitute the essential difference between bottomry and a simple loan | 938 | |
| Marine interest is requisite to a bottomry loan, but, if not expressed in the bond, it will be presumed to have been included with the principal | 938 | |
| The owner, as weft as the master, may pledge the vessel by bottomry in a foreign port; and, while the power of the master is limited to cases of necessity, the owner may pledge her for money to purchase cargo | 938 | |
| Supplies are “necessary” when fit and proper for the service, and such as a prudent owner would order | 13091 | |
| A bill of exchange taken with a bottomry bond for the same sum must share the fate of the bond | 522 | |
| BOUNDARIES. | ||
| See, also, “Deeds”; “Grants”; “Public Lands.” Courses and distances must give way when inconsistent with calls in the deed for natural or well-known artificial objects | 340 | |
| CARRIERS. | ||
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Charter Parties”; “Demurrage”; “Shipping.” | ||
| A contract by passengers with an agent of a stage line, limiting the number of passengers for the trip, is not admissible in an action for damages by a passenger not a party to it, who entered the coach on the way | 1182 | |
| In such case, defendant may prove a general custom as to number of passengers carried, but not the practice of its own line | 1182 | |
| Stage owners are bound to the greatest care; and the least neglect or want of skill by the driver makes them liable for injuries to a passenger | 1182 | |
| It is the duty of a stage driver to caution the passengers when about to pass over a dangerous bridge or piece of road | 1182 | |
| A stage proprietor is bound to furnish proper coaches, horses, and harness, and a skillful and careful driver, and he is liable for the smallest degree of negligence in this particular | 219 | |
| A stage proprietor is not responsible for casualties which could not be foreseen nor guarded against | 219 | |
| The upsetting of a stage is prima facie evidence of negligence in the proprietor, and the passenger need not show more | 219 | |
| A vessel receiving goods from a connecting carrier under a through bill of lading may be sued primarily for goods lost by her | 1203 | |
| A carrier by water must, as a general rule, notify the consignee of the arrival of the goods. If he fails to do so, he must prove an excuse | 1006 | |
| The fact that a carrier is accustomed to store goods in his warehouse until the consignee learns from the consignor of their arrival does not excuse the carrier from himself notifying the consignee, where it is not shown that the consignor knew of the practice | 1006 | |
| A carrier stowing goods in his warehouse, without notifying the consignee of their arrival, remains liable as a carrier until the consignee learns the fact from some source; and, if the goods are injured before such notice, the carrier is liable, though the consignee afterwards refuses to take them. | 1006 | |
| Where the loss of a cargo has been paid by the insurer, it is no defense to a libel against the carrier that the policy was issued by a foreign insurance company which had not complied with the laws of the state | 617 | |
| The shipper of grain, who takes no bill of lading, is bound, in an action for short delivery, to prove the amount delivered to the carrier | 655 | |
| CERTIORARI. | ||
| Federal courts have jurisdiction to issue a writ of certiorari as ancillary to a writ of habeas corpus, and to render their jurisdiction under the latter writ effective | 875 1363 | |
| Where a prisoner committed by a United States commissioner is brought up on habeas corpus, the circuit court may issue a of certiorari to the commissioner to bring up the proceedings had before him | 875 | |
| Certiorari to magistrate's court to bring up proceedings in forcible entry and detainer dismissed under circumstances stated | 341 | |
| CHARITIES. | ||
| The English statutes of mortmain and superstitious uses were never adopted by the colony or state of Pennsylvania | 408 | |
| The principles of the common law relative to charitable uses, which were resorted to in England by the statute of charitable uses, were, however, adopted, as well as the principles of equity in the administration of such trusts | 408 | |
| The jurisdiction of chancery over charitable uses and gifts therefor does not depend upon the statute of charitable uses (43 Eliz. c. 4) | 408 | |
| Unincorporated religious, literary, or charitable associations, in Pennsylvania, may take property by devise or bequest, for pious or charitable purposes, without a license from the state | 408 | |
| Societies of Friends, unincorporated associations in Pennsylvania, held capable of taking property by devise or bequest for the purposes of their organization | 408 | |
| A devise or bequest to a society for its purposes, with which testator is familiar, where such purposes are proper objects of charitable uses, is a good devise or bequest for such charitable uses | 408 | |
| A gift to a religious society for the relief of the poor thereof, and towards enlarging and improving the meeting house, is a good charitable use | 408 | |
| A gift to a religious society for the relief of the poor members thereof is a good charitable use | 408 | |
| An annual subscription to the stock of a religious society, which is applied to the printing and dissemination of books and writings approved by such society, is a good charitable use | 408 | |
| A gift to the treasurer of a society organized for the civilization and improvement of certain Indian tribes, for the benefit of such Indians, is a good charitable use | 408 | |
| A gift to a town for a fire engine and hose is a good charitable use | 408 | |
| CHARTER PARTIES. | ||
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Demurrage”; “Shipping.” | ||
| A verbal contract for the use of a steamboat for excursion trips, at definite times, for definite sums, is a charter, for breach of which admiralty has jurisdiction in personam | 847 | |
| Where the vessel arrived two days late, and, without notice to the charterer, discharged the cargo, and employed persons to cart and pile it on the wharf, held, that the charterer was not liable for this expense | 978 | |
| Where charterer's agent is to have a commission on freight at port of discharge, it is to be reckoned only on freight received, if some is not collected | 1169 | |
| CHATTEL MORTGAGES. | ||
| A mortgage on a stock in trade, where the mortgagor is allowed to keep possession and sell in the regular course of business is void as against creditors | 264, 628 | |
| A chattel mortgage permitting substitution of property held not binding on the substituted property in the absence of a formal delivery by the mortgagor | 16 | |
| A mortgage concealed by fraudulent representations, to the injury of third persons, is void | 264 | |
| A mortgagee of a share in a vessel is not liable to the mortgagor for supplies furnished while the latter was in possession | 353 | |
| CITIZEN. | ||
| By the common law, a child born within the allegiance of the United States is born a subject thereof, without reference to the political status or condition of its parents | 161 | |
| A child of a member of an Indian tribe within the territory of the United States, though born within the limits of the United States, is not a citizen thereof | 161 | |
| Under the treaty with Great Britain of October 20, 1818, art 3, a child born in the Oregon territory in 1823, of British subjects, was born in the allegiance of the king of Great Britain | 161 | |
| A person born in 1823, in the Oregon territory, whose father was a British subject, and whose mother was a member of the Chinook Indian tribe, is not a citizen of the United States | 161 | |
| COLLISION. | ||
| See, also, “Admiralty”; “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | ||
| Nature of liability—Contributive fault. | ||
| A contractor, building a lighthouse for the United States on a mud shoal out of the fairway, and forbidden by the lighthouse department to keep lights on the structure, held not liable for damage to a schooner colliding therewith at night | 1157 | |
| The want of extraordinary measures of precaution, or a fault on the imminence of a collision brought about by the fault of another, cannot be alleged as a contributing fault | 478 | |
| The want of a lookout will not be considered a fault where the other vessel was seen in good season by the master and mate | 734 | |
| A vessel having the right of way must keep a proper lookout and use proper seamanship to avoid collision | 962 | |
| Rules of navigation. | ||
| Rules of navigation on the Mississippi river | 391, 478 | |
| A steamer navigating a river leaving the ordinary and usual track of vessels, under the circumstances is bound to show some palpable necessity for the deviation | 478 | |
| Between sail vessels. | ||
| A vessel approaching another so circumstanced as to be difficult of control is in fault for colliding with her, if, by proper exertions and management, she could keep out of the way | 1160 | |
| Where both vessels are closehauled, the vessel on the port tack must keep away from one on the starboard tack | 972 | |
| A vessel on the starboard tack, nearly closehauled, with the wind baffling, and perhaps at times one or two points free, need not give way to one on the port tack, close hauled, on crossing courses | 962 | |
| In thick or foul weather, a vessel on the port tack must exercise all possible vigilance. There should be some one on deck to give orders instantly on an emergency. | 972 | |
| A vessel on the port tack, with hardly sufficient headway to give control, is yet in fault for colliding with one on the starboard 1364tack, if the former could have gone clear by keeping strict watch and either going about or taking her boom in board. | 1160 | |
| A vessel sailing free, and meeting one beating, has no right to go ahead and compel the latter to go about before running out her tack | 979 | |
| Between steam and sail. | ||
| A vessel beating down a river need not “heave in stays” on meeting a steamboat, but must keep her course | 187 | |
| Between steam vessels. | ||
| The rule requiring steamers meeting to pass to the right does not apply where both colored lights are anywhere but ahead | 620 | |
| The obligation to slacken speed arises in case of continuous approach, or when the approaching light is found to be closing in, instead of opening out | 620 | |
| If there is confusion of signals between approaching steamers, each is bound to stop, under article 16 of the rules | 1001 | |
| Overtaking vessel. | ||
| The boat astern takes all the risk of an attempt to pass, and the vessel ahead is not obliged to give way or change her course | 130 | |
| A vessel approached from behind by another, intending to cross her bows from starboard to port, is under no obligations to promote such movement | 316 | |
| Vessels moored, etc. | ||
| A vessel voluntarily approaching another moored at a dock, and striking her, is solely liable, although the other may somewhat block the passage | 841 | |
| Anchorage in a narrow channel, where vessels are constantly passing, is not necessarily improper, if room be left for vessels and tows to pass in safety; but a vigilant anchor watch must be maintained | 1082 | |
| Tugs and tows. | ||
| It is no defense to a tug colliding with another vessel that she was acting under the orders of a steamer which she was towing | 841 | |
| River and harbor navigation. | ||
| A propeller will be held equally in fault for passing at full speed a tug within 100 feet, where she comes into collision with the tow astern, which is improperly handled | 734 | |
| A boat running at great speed up the Mississippi river on a dark night, when a descending boat is visible, of whose course she is in doubt, takes the risk of a collision. | 478 | |
| A steamer used as a harbor ferryboat, in violation of law, is liable for collision with a vessel in the lawful use of the harbor | 1186 | |
| A steamer entering a narrow and crowded harbor without slowing down will be held in fault, though the colliding vessel was also in fault for taking a wrong course and not signaling | 1200 | |
| Speed: Fogs. | ||
| Seven miles an hour for a steamer in a fog, surrounded by sail-vessels, held too great speed | 618 | |
| lookouts, officers, etc. | ||
| A steamer will be held in fault where a collision was caused by her failure to keep her lookout stationed in the bow | 391 | |
| The absence of a competent and skillful lookout is prima facie evidence of fault | 130 | |
| A steamer is responsible for a collision which a better lookout might have prevented | 478 | |
| Particular instances of collision. | ||
| Between tows, resulting from failure of one to pay out the hawser in obedience to an order from the tug, held to have occurred from the sole fault of such tow | 923 | |
| Between a steamer and tow of another steamer, where the former was held in fault for being out of her proper course | 215 | |
| Between ferryboat coming out of Fulton Perry slip and tow of tug coming down East river and rounding to pick up a boat just above the slip, where the former was held in fault | 593 | |
| Between steamer and schooner in Delaware river, where both were held in fault the former for insufficient lookout, and the latter for failure to exhibit a torch | 715 | |
| Between schooner going out of harbor and sloop anchored in channel outside harbor master's line, where both were held in fault, the former for want of lookout, the latter because anchored in an improper place | 701 | |
| Steamer colliding with sloop in New York harbor in a fog held in fault for merely stopping, without reversing, on hearing fog horn | 1111 | |
| A sailing vessel entering a crowded harbor at night at six miles an hour, in addition to a current of four miles, and colliding with an anchored vessel, held in fault | 1080 | |
| Sloop sailing free and attempting to pass ahead of two schooners beating, being struck by one of the schooners, held solely in fault | 979 | |
| Where steamers were meeting nearly end on, held that one was in fault for starboarding instead of porting, and for not reversing on perceiving a confusion of signals | 1001 | |
| Procedure. | ||
| The insurer of a cargo lost by a collision may sue the colliding vessel, after notice and proof of the loss and demand of payment, though before actual payment | 617 | |
| Where there has been actual payment of the loss before trial, it is no defense that the suit was brought before payment | 618 | |
| Libelant must show absence of fault on the part of his boat, as well as fault on the part of the other | 130 | |
| The fact that the engineer and master left their posts of duty after the lights of an approaching vessel were seen may he considered on the question of negligence in giving and executing orders | 620 | |
| The deposition of a witness on an investigation before the board of inspectors, who is called for libelant in a suit for the collision, can only be used by respondent for the purpose of contradicting him | 744 | |
| Evidence of verbal statements made in time of excitement and peril should be received with great caution | 1080 | |
| In a case of collision with the foundation of a pier for a lighthouse, it must be presumed that jurisdiction over the site has been ceded to the United States, as the law provides that no lighthouse shall be built until such cession | 1157 | |
| The testimony as to the course and deflections of a vessel of those who hold her helm is entitled to more weight than those on board another moving vessel | 310 | |
| Where the testimony shows that the fault of one is flagrant, and leaves the question of fault of the other in doubt, the former only will be held in fault | 618 | |
| A vessel negligently running into another, which is lying disabled, may he held liable, although the precise manner of the collision is not proved as alleged | 926 | |
| On a libel by a tow against her tug and the colliding vessel, the libelant may recover against the latter alone, where “there was independent fault on her part | 593 | |
| The finding of a commisioner of the amount of damages in a collision case will not be disturbed when there is not a palpable preponderance against it | 1243 1365 | |
| Rule of damages. | ||
| The party in fault should hear any inconvenience or hardship in proving the exact damages | 1243 | |
| In the absence of a market value, the value of the vessel to the owner, in the business she was engaged in at the time of collision, is a proper basis of damages | 1243 | |
| In such case, the books of the owner showing previous and subsequent earnings are competent to show probable earnings during the detention | 1243 | |
| Services of an agent in settling and paying bills are not chargeable as damages | 1243 | |
| Estimates of the cost of repairs are not competent when the repairs have been actually made | 1243 | |
| In a case of collision by mutual fault between a steamer and sail vessel, the steamer may be allowed, as part of the damages, a sum for towing the sail vessel into port after the collision | 998 | |
| A fishing boat making weekly trips to market, and losing one trip by a collision, which injures her seine, may be allowed the probable profits of such trip | 1003 | |
| Interest will not be allowed as damages when the repair bills have not been actually paid before the trial | 972 | |
| Interest on items of damage is allowed at 6, and not at 7, per cent | 981 | |
| Where the full value of a vessel sunk is awarded, the expense of raising her to ascertain the extent of the loss is a proper charge | 981 | |
| The measure of damages for cargo lost is its value at the time and place of shipment | 991 | |
| Damages for cargo shipped by canal boat in Canada, where United States gold coin was the currency, and lost on the Hudson river, in New York, must be paid for at its value in such coin | 991 | |
| Freight money lost by the master when hurrying from his sinking vessel, and sails used for covering the deck load, are proper items of damage | 962 | |
| Division of damages. | ||
| The damages will be equally divided where both vessels were in fault for the collision | 391, 701, 998 | |
| In such case, costs are also equally divided | 701, 998 | |
| But it seems that if one vessel suffers all the damage, and both are in fault, the libelant recovering half damages should recover full costs | 998 | |
| COMPROMISE. | ||
| See, also, “Accord and Satisfaction”; “Bankruptcy”; “Payment.” | ||
| To sustain a contract of settlement on the ground that it was a compromise of doubtful claims, the doubt must be such as an ordinarily intelligent person would entertain | 1343 | |
| CONSTITUTIONAL LAW. | ||
| See, also, “Statutes.” | ||
| The legislature of a state cannot take away the right of citizens of other states to sue in the federal courts, by providing a special remedy in its own courts | 1012 | |
| Quaere: Whether the law of 1850, § 1, in relation to recording the transfer of vessels, is constitutional? | 871 | |
| A New Jersey statute for the relief of the creditors of a certain manufacturing corporation held void because it deprived the mortgagees of a remedy existing at the date of their contract | 903 | |
| A legislative act authorizing the issue of municipal bonds, and providing a method for their payment, held to constitute a contract with the bondholders | 377, 380 | |
| A distress warrant issued by a government officer to seize property under the laws for collection of internal revenue is due process of law | 1061 | |
| A devise or bequest cannot be defeated on the ground that the beneficiary is a citizen or a corporation of another state than testator. (Const, art. 4, § 2.) | 408 | |
| CONTINUANCE. | ||
| Where proper diligence has been shown, the expected arrival of a deposition which may be material is ground for continuance. | 809 | |
| When a writ of inquiry is set aside by defendant, plaintiff may have the cause continued at defendant's costs | 3 | |
| Counter affidavits cannot be read on a motion for a continuance | 637 | |
| CONTRACTS. | ||
| See, also, “Assumpsit”; “Sale”; “Vendor and Purchaser.” | ||
| A contract to pay for services rendered in obtaining the passage of a law by “lobbying” is void | 828 | |
| A contract to pay for services in obtaining the passage of a law is void if the parties agree to conceal the fact of the employment, or if the party employed did in fact conceal it, from the members of the legislature, while advocating the passage of the law , | 828 | |
| After a contract is executed, third persons cannot question its consideration | 1029 | |
| An agreement as to the proper interpretation of a contract bars each party from thereafter claiming a construction inconsistent therewith | 783 | |
| A contract free from ambiguity cannot be varied or contradicted by extrinsic evidence | 317 | |
| Contract of lumber dealers to pay for sawing logs furnished by them held de pendent on stipulations to saw and pile in a specified manner; but their agreement to furnish logs held dependent only on stipulations in respect to the boom for receiving them | 1056 | |
| Where the promises are to be concurrently performed, neither can sue for a violation of the agreement, or insist on a specific performance without showing an offer to comply, or a sufficient excuse for not doing so | 317 | |
| A contract to deliver a certain quantity at such times as may be required by the purchaser may be waived by acceptance of a less amount than that named in the notice, and giving notice to furnish at subsequent periods | 322 | |
| Where the party refused to accept at subsequent periods, in accordance with his notice to deliver, the previous nonperformance by the other party is no defense | 322 | |
| After refusal to receive one load of a certain quantity to be delivered, tender of the balance, if ready for delivery, is not necessary to charge the other party | 322 | |
| Abandonment of repairs to a vessel by a contractor before completion thereof bars recovery for more than a quantum meruit. | 301 | |
| Damages for failure of a railroad contractor to put on an increased force, as notified by the railroad company, cannot be recovered where the contract provides that the company may in such case put on an increased force at the contractor's expense | 45 1366 | |
| COPYRIGHT. | ||
| The rights and remedies of persons registering in the patent office prints and labels under the act of June 18, 1874 (18 Stat. 78), are regulated by Rev. St. 4948-4971, relating to copyrights | 821 | |
| In exercising its constitutional power in relation to copyrights and patents, congress may discriminate in favor of good morals and against vice | 920 | |
| The act of August 18, 1856, relating to dramatic compositions suitable for public representation, does not include a mere exhibition or spectacle of scenic effects, but having no literary character; especially if of immoral tendencies | 920 | |
| Where two exhibitions, called “Black Crook” and “Black produced,” produced upon spectators the impression that they were substantially the same, held that one was a colorable imitation | 920 | |
| CORPORATIONS. | ||
| See, also, “Banks and Banking”; “Counties”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers”; “Religious Societies.” | ||
| A lease of the mine, made by a mining corporation to the minority stockholders, to withdraw control from the board of directors about to be elected, and to perpetuate the control of the minority, will be canceled on a bill filed by the corporation | 497 | |
| The officers of a moneyed corporation have no right to make a dividend unless there are actual profits over and above all losses | 506 | |
| An officer is bound to know the condition of the corporation's affairs, and he has no right to receive a dividend unless it is earned | 506 | |
| In deciding whether a dividend was rightfully made, the transaction must be viewed from the standpoint of that time, and not in the light of subsequent events | 506 | |
| Notes of a corporation given in payment of unearned dividends held void in the hands of the stockholder receiving them | 176 | |
| The withdrawal of any portion of the capital by a stockholder renders him liable under Rev. St. Me. 1857, c. 46, § 24, for corporate debts to the amount so withdrawn | 176 | |
| The limitation of one year does not apply to an action on such liability | 176 | |
| The surrender by a stockholder of shares, and receiving in exchange therefor the stock of another corporation, that he originally paid for his shares, on the receipt of unearned dividends, or the surrender of shares in exchange for corporate notes which are subsequently paid, operates as a withdrawal of capital | 176 | |
| When the legislature creates a corporation it may also prescribe what remedies shall be used against it, and such remedies then become exclusive | 665 | |
| COSTS. | ||
| Where a juror is withdrawn on motion of plaintiff and consent of defendant, who elects a continuance of the cause, he is not entitled to costs also | 337 | |
| On reversal in the circuit court of the decree of the district court in admiralty, the successful party is entitled to costs on the appeal, unless new evidence was introduced which might have affected the judgment in the court below | 716 | |
| Counsel fees to the successful party in such case may be allowed in the discretion of the court, but such power is sparingly exercised | 716 | |
| No costs on appeal awarded to either party where a decree of the district court was affirmed in so far as it dismissed the libel, but reversed as to the award of costs to claimant | 37 | |
| Costs will not be allowed where the libel is dismissed on a dilatory plea after a trial in which the court overrules the defense on the merits | 860 | |
| Where a demurrer to a hill is overruled in part and sustained in part, costs not allowed to either party | 133 | |
| Costs are not taxable for the preparation of written arguments, except upon a stipulation in writing to that effect | 574 | |
| Summary costs only are recoverable on a libel in admiralty where libelant admits that a sum less than 550 is all that is due, irrespective of the claim in the libel | 110 | |
| In what cases costs may be taxed for motions to postpone the hearing of a cause called in its order on the calendar | 574 | |
| In what cases costs may be taxed upon motions to enlarge time to answer, for a final decree, for costs, for a reference, etc | 574 | |
| The district court, on dismissing a libel for want of jurisdiction, has no power to award costs against libelant | 37 | |
| An unfounded claim for a lien dismissed without costs, the vessel owners being personally liable | 15 | |
| Costs denied to owners of canal boat sunk by swells, because they delayed for 30 days to give notice of their claim | 1066 | |
| On dismissal of a libel for wages, held that costs should be imposed on libelants, when they had taken possession of the vessel and brought her home, though this was done on reasonable grounds of suspicion that she was about to engage in the slave trade | 949 | |
| Costs on appeal from a justice of the peace are in the court's discretion, where he judgment is affirmed | 1281 | |
| Defendant may require security for costs from a plaintiff who has removed from the district since the commencement of the action . | 13 | |
| Where a cause has been continued at defendant's costs, an attachment will be granted against defendant for such costs, after judgment for plaintiff | 107 | |
| COUNTIES. | ||
| See, also, “Municipal Corporations”; “Railroad Companies.” | ||
| County commissioners in Ohio may sue and are liable to be sued in relation to all matters which involve the exercise of their powers | 247 | |
| Plea of non est factum not allowed as to engraved bonds of the county, substituted for other bonds of like date, etc., where the county paid interest, without objecting, for two years | 188 | |
| COURTS. | ||
| See, also. “Admiralty”; “Bankruptcy”; “Equity”; “Justices of the Peace”; “Maritime Liens”; “Removal of Causes”; “Rules of Court.” | ||
| In general. | ||
| It is only where the court is without power to pass upon the subject-matter of the complaint or to grant the relief sought that its jurisdiction may be challenged | 302 | |
| The court can take jurisdiction of parties who. not being within its jurisdiction, voluntarily appear | 264 1367 | |
| Courts of law and equity have concurrent jurisdiction in cases of fraud, and the one first obtaining jurisdiction must settle the matter conclusively | 1038 | |
| Comparative authority of federal and state courts: Process. | ||
| The federal circuit court has concurrent jurisdiction with a state probate court to decree an account in favor of distributees. | 542 | |
| Where two courts have concurrent jurisdiction, the one which first has possession of the subject may adjudicate; and neither of the parties can be forced into another court | 542 | |
| An administrator in the process of accounting before a probate court cannot be compelled to account in a federal court by a bill in equity | 542 | |
| Federal courts—Jurisdiction in general. | ||
| The equity jurisdiction of the federal courts is not affected by state statutes giving legal remedies | 1231 | |
| The distinction between law and equity, as recognized in the jurisprudence of England, must be observed in the federal courts; but this relates only to the remedy, and not to the existence of rights | 1283 | |
| The federal courts have no authority to enjoin federal officers against performing any merely ministerial act | 74 | |
| County commissioners, though not possessing in every respect the technical qualities of a corporation, are amenable to the process of the federal court within the state | 247 | |
| Under the judiciary act of 1875, a federal court has no jurisdiction to attach property of a citizen of another state who is not found in the jurisdiction | 1164 | |
| A federal court has no jurisdiction of a bill of revivor against an administrator with the will annexed of the original respondent, where such administrator was appointed in another state | 1334 | |
| —Grounds of jurisdiction. | ||
| The circuit court has jurisdiction in covenant where the damages laid exceed $500, though the penalty named in the contract is less than $500 | 906 | |
| The fact that defendant corporation was organized under a federal law is not enough to give the federal court jurisdiction | 390 | |
| A joint-stock association organized under the laws of New York may be sued in the federal court by a citizen of another state without regard to the citizenship of its individual members | 566 | |
| In a suit by a national bank, an allegation that plaintiff is a citizen of the state of Illinois, and located and residing and doing business in the city of Chicago, in said state, and that defendant is a citizen of New York, is sufficient to give jurisdiction to the federal court in New York | 671 | |
| A motion to dismiss is the proper remedy when it appears that the real plaintiff in interest is a citizen of the same state with defendant | 1195 | |
| An action of ejectment will be dismissed where it appears that plaintiff acquired naked legal title from a citizen of the same state with defendant merely to give jurisdiction | 1195 | |
| An executor or administrator is not an “assignee,” within the meaning of the eleventh section of the judiciary act of 1789 | 1231 | |
| —Circuit courts. | ||
| The circuit court has no cognizance of causes of admiralty and maritime jurisdiction in the district court save by appeal | 292 | |
| A national bank cannot be sued outside the district in which it is located. Service on the cashier when found within another district does not give jurisdiction | 509 | |
| —District courts. | ||
| Consent of the parties cannot confer jurisdiction on the district court | 215 | |
| A libel in personam is not a “civil within,” within the meaning of Act 1789, § 11, requiring defendant to be a resident of the district within which suit is brought | 570 | |
| —Administration of state laws. | ||
| The right to sue and the liability to be sued of county commissioners arising under the local law constitute a rule of decision for the federal courts | 247 | |
| —Following state decisions. | ||
| The federal courts will follow the decisions of the state in respect to the validity of a bequest to charitable uses | 1283 | |
| The Pennsylvania doctrine that the assignee of a bond and mortgage takes subject to all existing legal and equitable defenses does not apply to a suit in equity in the federal court . | 94 | |
| The federal courts are not bound to follow state decisions based on general principles of commercial law | 1283 | |
| —Procedure. | ||
| The act of June l, 1872. adopting state practice, etc., does not authorize the commencement of an action at law in the circuit court by a summons in the name of plaintiff's attorney, according to the New York procedure | 892 | |
| Local courts. | ||
| Where the verdict in an action in the circuit court of the District of Columbia is for a sum less than the jurisdictional amount, judgment will be arrested | 234 | |
| It is no ground of arrest of judgment in the circuit court of the District of Columbia that the sum sued for has been reduced by offsets to a sum below the jurisdiction | 231 | |
| The probate court in Rhode Island has exclusive jurisdiction of the probate of wills of land | 1103 | |
| Terms: Sessions. | ||
| A federal court may be held on a day appointed by the president of the United States and the governor of the state as a day of thanksgiving | 122 | |
| At a special criminal session, the circuit court of the District of Columbia cannot try a case pending at the preceding stated session | 1340 | |
| CRIMINAL LAW. | ||
| See, also, “Arrest”; “Bail”; “Extradition”; “Habeas Corpus”; “Indictment and Information.” | ||
| CUSTOM AND USAGE. | ||
| The rules of law in relation to the proof and nature of customs stated by Washington, J | 129 | |
| A usage for vessels to let go their warps on the approach of a steamer is not applicable in favor of a steamer having no right to use the waters of the harbor | 1186 | |
| CUSTOMS DUTIES. | ||
| Customs laws. | ||
| Goods removed from a bonded warehouse and carried without the jurisdiction of the United States, and returned, are subject to duty, though not actually landed at a foreign port | 118 | |
| A law imposing a duty on articles used for a particular purpose should not be construed to cover articles not so used at the date of the act, unless expressly so provided | 892 1368 | |
| The purpose, adaptation, and use of the article, and not its commercial designation, is the test of its dutiable description by the words “wearing apparel.” (Act July 30, 1846.) | 500 | |
| Rates of duty. | ||
| Substances not used for cotton bagging before the act of July 14, 1832, are not dutiable as such thereunder | 892 | |
| Shawls or scarfs manufactured on looms in strips or pieces, but separated before importation, held dutiable as “wearing apparel.” (Act July 30, 1846.) | 500 | |
| Invoice: Entry: Appraisal. | ||
| The valuation of goods as at the time of their exportation, instead of the time of their purchase, is illegal. (Act 1846.) | 501 | |
| The penalty of 20 per cent. (Act July 30, 1846, § 8) cannot be exacted for a 10 per cent, undervaluation in coal arising solely from an excess of quantity | 600 | |
| The importer is not liable in such case, under section 4, to pay the fee of the weigher and measurer | 600 | |
| Payment: Protest. | ||
| The objection that the collector did not order a reappraisement, or that one of the examiners was hostile to the importer, cannot be raised unless made in the protest | 501 | |
| Under the act of February 26, 1845, a protest objecting merely in general terms to the additional duty will not support an action | 1044 | |
| A protest against the illegal exaction of the penalty of 50 per cent, under Act Aug. 30, 1842, § 17, is necessary in order to recover it back | 501 | |
| Protest held sufficient to raise the objection that the goods were erroneously valued as of the time of their exportation, instead of the time of their purchase | 501 | |
| Actions for duties paid. | ||
| The acts of 1799 and 1845 do not prevent the actual owner of the goods from recovering duties paid under protest by the consignee | 1044 | |
| Payment under protest of duties on goods never imported, to avoid suit on a warehouse bond, is a voluntary payment, and an action to recover back is not maintainable | 848 | |
| Violation of law: Forfeiture. | ||
| In cases within Act March 2, 1799, c. 128, § 89, judgment cannot be rendered on the bail bond until after 20 days from the day of condemnation, and then in open court | 292 | |
| Customhouse documents are prima facie evidence of the facts which called for their issue | 118 | |
| “Fines” imposed for obstructing officers of the customs, as well as “penalties,” under Act March 2, 1799, c. 128, are to be received and distributed by the collector of the customs | 776 | |
| DAMAGES. | ||
| See, also, “Contract”; “Collision”; “Patents.” | ||
| The measure of damages for refusal to deliver certain merchandise as agreed is the difference between the contract price and the market value at the place of delivery | 322 | |
| Damages for nonpayment of money or nondelivery of obligations for money is the amount due, with interest. Collateral damages are not given | 1343 | |
| Damages for failure to provide a sinking fund for bonds, according to agreement, are ascertained by taking the difference in the value of the bonds as agreed to be made and their value as in fact made | 1343 | |
| Vessel owners are only liable in actual and not in punitive damages for the torts of the master involving a breach of a passenger's contract | 141 | |
| One allowing his vessel to be taken, on command of officers of the law, for the purpose of making an arrest in an illegal place, but without malice, is not liable for exemplary damages | 868 | |
| When the sum is certain, or may be reduced to certainty by computation, the intervention of a jury to assess damages is unnecessary | 231 | |
| DEATH BY WRONGFUL ACT. | ||
| No recovery can be had under the Maryland statute for the' death of a fireman on a railroad train, by collision with another train, unless the company had not used ordinary and reasonable care in selecting the officers of the train in fault | 994 | |
| Under the Maryland statute, a mother can recover for the death of her son her actual damages, though he was over 21 years old | 994 | |
| Grandchildren living with their grandparent have no right of action for her death, through the wrongful act of defendant, under Wag. St. Mo. c. 43, § 22, giving a right of action to the husband or wife or minor children of deceased | 13 | |
| DEBT, ACTION OF. | ||
| Debt will lie for two sums distinctly awarded, one for damages and one for costs | 1120 | |
| DEED. | ||
| See, also, “Boundaries”; “Vendor and Purchaser.” | ||
| A deed of land in Maryland cannot be read in evidence unless recorded in Marvland | 153 | |
| The words “grant, bargain, and sell” import the conveyance of a fee simple, indefeasible with special warranty | 105 | |
| DEMURRAGE. | ||
| Time lost in getting from one dock to another, by requirement of the charterer and according to the custom of the trade, is not by default of the charterer, for which he must pay demurrage | 978 | |
| Though the shipper only has the right to reconsign, under the bill of lading, the master, by accepting a reconsignment from the consignee, waives his right to object, and cannot recover demurrage for delays incident thereto | 123 | |
| DEPOSITION. | ||
| No person but the magistrate or witness can reduce to writing a deposition taken under the judiciary act of 1789, § 30 | 856 | |
| In taking a deposition under a commission, it need not be written by the commissioners or their clerk or a witness | 1293 | |
| A clerical error in the dedimus, whereby an initial of a party's name is changed, will not prevent the admission of the depositions | 1293 | |
| DETINUE. | ||
| Detinue is an action in form ex contractu, and not ex delicto | 1255 1369 | |
| DISCOVERT. | ||
| A bill for a discovery in aid of a suit at law cannot be maintained in the absence of allegations that it is material that the discovery should be had, and that the court of law in which the case is pending cannot compel the discovery | 759 | |
| The fact that plaintiff is entitled to the discovery prayed does not necessarily entitle him also to an account | 403 | |
| On a bill for discovery and other equitable relief, where plaintiff's ultimate object is to obtain damages, proper relief in damages will be given after discovery is granted. | 403 | |
| DURESS. | ||
| Real property is not under duress unless there be an illegal demand made against the owner, coupled with a present power or authority in the person making such demand to sell or dispose of the same if payment is not made as demanded | 755 | |
| EJECTMENT. | ||
| The conveyance of a homestead by a bankrupt and his wife set aside at the suit of an assignee in bankruptcy works no estoppel in favor of the purchaser from the assignee, and he has no title to support ejectment | 90 | |
| One claiming as mortgagee is a proper defendant to an action of ejectment in Vermont, though it does not appear that he is in possession | 928 | |
| In ejectment, the fictitious lease may be amended, after the jury is sworn, upon payment of term costs | 15 | |
| The object of ejectment as used in Vermont is to settle title, as well as to obtain possession, and the judgment is conclusive on all parties | 928 | |
| ELECTIONS AND VOTERS. | ||
| A state may deny the right of suffrage to any citizens of the United States for other causes than those specified in Const. U. S. Amend, art. 15 | 157 | |
| Act May 31, 1870, is inapplicable to the qualifications of voters, except as founded upon the distinction of race, color, or previous condition of servitude | 147 | |
| The refusal to allow a person, when challenged, to take the oath of qualification, if made on account of his race, color, or previous condition of servitude, but not otherwise, is a violation of Act May 31, 1870, § 2 | 157, 161 | |
| Sufficiency of allegations of complaint in action for penalty under Act May 31, 1870, § 2 | 157 | |
| All persons must take the oath of qualification required by the state law, when challenged | 157 | |
| EMBARGO AND NONINTER-COURSE. | ||
| An involuntary coming into port by stress of weather is not an “importation” of cargo contrary to the embargo laws | 932 | |
| A bona fide purchaser without notice is protected against an antecedent forfeiture to the United States | 784 | |
| The secretary of the treasury had no authority under Act Feb. 27, 1813, c. 175, to remit the penalties for goods subsequently imported contrary to the nonimportation act | 719 | |
| Until final judgment, no part of the forfeiture under the embargo and nonintercourse act vests absolutely in the collector; but after final judgment his share vests absolutely, and cannot be remitted | 719 | |
| EQUITY. | ||
| See, also, “Courts”; “Injunction”; “Pleading in Equity”; Practice in Equity.” | ||
| Jurisdiction. | ||
| Negligence by an attorney at law in collecting claims is not a subject of equity jurisdiction, there being an adequate remedy at law | 822 | |
| Equity jurisdiction is not ousted by the existence of a remedy at law which is not adequate and complete | 1231 | |
| As between creditors having a common lien on property, equity will require the one having also a separate lien on other property to enforce it first | 264 | |
| Equity will not relieve from a mistake of law as to the effect of an agreement, whether it was mutual or not | 461 | |
| Jurisprudence. | ||
| Poverty may excuse delay, within the period of limitation, so as to relieve plaintiff's claim from the imputation of staleness | 1024 | |
| In a suit to rescind a sale of lands, one of the purchasers may be joined as plaintiff though he has since released his interest to the others | 1016 | |
| In suit to rescind a sale of lands, if all the parties to the conveyance are made respondents, it is no objection to a recovery on the merits that some who had an equity in the land are not joined | 1016 | |
| General averments of fraud or mistake will not bring the case within equitable jurisdiction where the special averments do not make out a case of fraud or mistake | 461 | |
| Where the defense to a promissory note is fraud, the proper order is to restrain its negotiation and permit the parties to proceed at law | 1038 | |
| ESCROW. | ||
| It is not necessary to a delivery in escrow that the obligee shall be privy thereto, or that the condition is to be performed by him | 1268 | |
| ESTOPPEL. | ||
| One who undertakes by deed to convey an indefeasible estate in fee simple, though there are no covenants of warranty, will not be allowed to set up against his vendee, or one claiming under him, a subsequently acquired title | 105 | |
| EVIDENCE. | ||
| See, also, “Appeal”; “Deposition”; “Trial”; “Witness.” | ||
| Presumptions: Burden of proof. | ||
| Delivery of the cargo to the owners by the supercargo is evidence of his receipt of his commissions, in an action by a third person entitled to a share therein | 657 | |
| Best and secondary. | ||
| Subscribing witnesses will be presumed to reside at the place of execution of the instrument; and, where that is without the jurisdiction of the court, proof of signatures is admissible as secondary evidence of execution | 573 1370 | |
| Statements in a deposition that witness paid a sum of money and took a receipt may be read in evidence, though the receipt be not produced | 1293 | |
| Declarations and admissions. | ||
| The declarations and admissions of the owner, made after he has parted with title to property, are inadmissible against the purchaser | 677 | |
| The declarations of the grantor are not admissible to defeat the title of the grantee under a conveyance alleged to be fraudulent | 451 | |
| Admissions of an alleged co-conspirator after the conspiracy has terminated, and not in the presence of the accused, are not admissible | 875 | |
| Declarations of a stage driver that the coach was overloaded are not admissible against his employers | 1182 | |
| Agreements between partners before fitting out a vessel may he proved on their part by their conversations, as a part of the res gestae | 353 | |
| Documentary. | ||
| The act of congress respecting the authentication of the records of state courts does not apply to the records of the federal courts | 1046 | |
| Parol evidence. | ||
| A receipt for a sum of money may be explained by parol or other proof | 1272 | |
| Oral evidence of an agreement that defendant should retain certain notes as security against other notes may be given, although there be a written agreement to return them on demand | 152 | |
| A written contract may be contradicted by parol evidence showing that the whole contract was not reduced to writing | 4 | |
| Explanation of the rule that parol evidence is inadmissible to explain or vary a writing, by Washington, J | 4 | |
| Competency: Materiality: Relevancy. | ||
| In covenant by a lessor's assignee against the lessee's assignee, plaintiff may prove the lessee's assignment by parol evidence of possession and payment of rent by defendant | 1220 | |
| Handwriting. | ||
| Handwriting cannot be proved by comparison before the jury | 349 | |
| EXECUTION. | ||
| See, also, “Attachment”: “Bankruptcy”; “Garnishment”; “Judgment.” | ||
| Notice of an assignment of chattels to a judgment creditor will not prevent a levy where possession has never been taken. | 1311 | |
| After the lapse of a year, execution can-riot issue in the District of Columbia upon a judgment obtained in Maryland without a sci. fa | 49 | |
| A levy on a stock of goods seen through the transom, over the door, of the store, into which the sheriff was unable to gain an entrance, held valid | 41 | |
| A levy on land attached takes effect from date of the attachment, when the record shows that it is the same land, though the officer's return does not so state | 1147 | |
| The return of the officer stating that the appraisers who acted in making a levy on real estate were disinterested is conclusive. | 1147 | |
| Under the Maine statutes, the return of the officer that the land levied on cannot be divided without damage is conclusive on parties and privies | 1147 | |
| The lien on personal property acquired by delivery of a fi. fa. is lost by making a return of nulla bona; and seizure by an alias fi. fa. will not overreach an intermediate sale | 1164 | |
| A sale made under an erroneous description of the premises will be set aside | 340 | |
| The nonimprisonment acts of New York, as adopted by congress (5 Stat. 321, 410), do not apply to process in admiralty | 835 | |
| A ca. sa. on a justice judgment will not be quashed because defendant has applied for the benefit of the Maryland insolvent laws | 1142 | |
| Where the debtor arrested on a ca. sa. is set at liberty by plaintiff, though on express condition that plaintiff shall not be prejudiced thereby, it operates as a discharge, and equity will not interfere | 461 | |
| EXECUTORS AND ADMINISTRATORS. | ||
| Under the Maryland statutes, the husband is administrator of his deceased wife, and may sue for her separate estate not disposed of by deed or will | 841 | |
| In California, real estate is assets in the administrator's hands, to be administered like personalty | 1314 | |
| An executor who makes personal use of funds of the estate is chargeable with the highest amount of legal interest | 198 | |
| An executor is not responsible for the loss of the funds received by him for dividends in confederate money or notes, which, at the time, he was obliged to accept | 198 | |
| A judgment obtained by the administrator of an administratrix of her husband on notes taken by her personally in payment for property sold belonging to the estate will not be ordered to be entered up for the use of an administrator d. b. n. of the husband, unless it appear that the sureties of the administratrix are insolvent, and that the balance of her administration account is against her | 487 | |
| Mode of adjustment of accounts of executor and trustee in case of maladministration | 198 | |
| An account of an administrator, though settled by a judicial decree of a court of competent jurisdiction, may be opened for fraud | 542 | |
| An executor who built a bulkhead on the water front of the estate held liable for damage resulting from the sinking of a vessel by its faulty construction, and also for additional damage occurring while the vessel was being raised with due care by her owner | 1061 | |
| An executor or administrator appointed in one state cannot be sued in another for assets lawfully received by him in the former | 1334 | |
| In an action against an administrator, a plea of a release by a former administrator, without showing full payment, is bad. An administrator cannot release a debt except on full payment | 996 | |
| Plaintiffs naming themselves administrators, but not making profert of their letters, are not bound to give oyer of them | 1046 | |
| In California, an adjudication affecting title to land, in an action between the administrator and another, binds the heir | 1314 | |
| EXEMPTIONS. | ||
| State exemption laws apply to process issued from the federal courts | 663 | |
| EXTRADITION. | ||
| Necessity of a mandate from the executive for the arrest of a fugitive from justice before the commissioner can entertain jurisdiction of proceedings | 51 1371 | |
| The complaint on which the warrant is issued need not set forth the issuing of a mandate by the executive for the arrest of the fugitive | 51 | |
| The warrant for the arrest of an alleged fugitive may follow the words of the treaty in describing the offense charged | 51 | |
| A description in the mandate of the offense charged, in the terms of the treaty, is sufficient | 51 | |
| Pending extradition proceedings, a second warrant, on a new complaint, for a distinct offense, may be issued | 59 | |
| The commissioner may, in his discretion, grant reasonable adjournments, in the course of hearing the evidence, to enable testimony to be produced | 51 | |
| Admissibility of copies of depositions taken abroad in extradition proceedings | 59 | |
| The four requisites of a valid commitment for trial in another state are a charge of crime therein, a demand from its governor, an indictment found or affidavit certified by the governor, and the presence of the prisoner in the state when the crime was committed | 186 | |
| Extradition proceeding may be reviewed upon certiorari after a warrant of surrender has been issued by the president | 59 | |
| Decisions on questions as to evidence made by the commissioner on extradition proceedings cannot be reviewed on habeas corpus pending such proceedings | 51 | |
| On habeas corpus, the court or judge does not sit as an appellate tribunal to review the proceedings which have taken place before the commissioner, as upon allegation of error | 59 | |
| On habeas corpus and certiorari, the court cannot entertain the question of the sufficiency of the evidence before the commissioner, to warrant the commitment for surrender | 59 | |
| Error of the commissioner in the reception of evidence is no ground of discharge on habeas corpus | 59 | |
| FACTORS AND BROKERS. | ||
| A commission merchant is liable for selling goods contrary to instructions, and for negligence in the sale | 852 | |
| Receiving without objection accounts of sales made on credit is a waiver of instructions to sell for cash, and authorizes the factor to make further sales on credit | 852 | |
| Existing liens on goods unsold are discharged by the sale, and the proceeds become the subject of mutual accounts | 765 | |
| FERRY. | ||
| A railroad charter describing part of the route as “thence by steamboats or other boats over and across the ferry to East Boston” does not authorize the company to maintain a ferry for general purposes | 1186 | |
| A ferry license under the Massachusetts statutes is not assignable | 1186 | |
| Fines. | ||
| See “Customs Duties.” | ||
| FISHERIES. | ||
| Anchoring a vessel within fishing grounds, without malice, and to take in residue of cargo, does not make the master liable for damages; otherwise, if it is without reasonable commercial purpose | 1047 | |
| FORFEITURE. | ||
| See, also, “Customs Duties”; “Shipping.” | ||
| Seizure of the res, before filing of the libel, is essential to jurisdiction under a libel for a penalty or forfeiture. (Affirming 1212.) | 1213 | |
| An action for a penalty or forfeiture must be in the name of lie government, unless otherwise expressly provided by statute | 112800 | |
| An information of forfeiture need not show that the case was not within the exemption of a proviso of the statute. This is matter of defense | 997 | |
| A decree of forfeiture in rem is conclusive on all claiming an interest in the thing. | 953 | |
| Where absolute forfeiture is the statute penalty, title accrues when the penal act is committed; but, if the forfeiture is alternative,—property or its value,—title does not vest until election; and meanwhile an innocent purchaser may acquire a title not forfeitable | 968 | |
| The secretary of the treasury has no power to remit penalties, unless in cases provided for by law | 719 | |
| As to legal proof of facts under Act March 3, 1797, c. 67, upon which the secretary of the treasury is authorized to remit penalties and forfeitures | 720 | |
| The secretary of the treasury has no authority under Act Feb. 27, 1813, c. 175, to make a remission of part only of the property forfeited | 719 | |
| The secretary of the treasury has no authority, under either the act of 1797 or the act of 1813, to remit the collector's share of the forfeiture, nor any part of it eo nomine | 719 | |
| FRAUDULENT CONVEYANCES. | ||
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy.” | ||
| To make a contract void under 13 Eliz. c. 5, for fraud against creditors, both parties must concur in the fraud | 451 | |
| A contract of conveyance in consideration of marriage is within 13 Eliz. c. 5, § 6, if bona fide and without notice of fraud, etc | 451 | |
| A contract of conveyance in consideration of marriage is valid as against creditors of the husband | 451 | |
| Payment of the sum stipulated in the articles may be made after marriage, on the eve of a judgment against the husband. | 451 | |
| An indiscreet expenditure for furniture is not per se fraudulent against creditors, where the husband agreed by the marriage articles to furnish a house as he saw fit. | 451 | |
| A purchase of lands by a husband with money belonging to his wife before marriage, and the taking of a deed to her, pursuant to a verbal agreement with her before marriage, is “no fraud on his creditors. | 1308 | |
| An agreement to pay one known to be insolvent a part of the purchase money of property held by an assignee in insolvency is void as to creditors | 133 | |
| An assignment of chattels is not perfect against creditors unless possession accompanies and follows the deed. Want of possession is evidence of fraud | 1311 | |
| A grant of chattels out of the country at the time will be held fraudulent unless possession is taken within a reasonable time after their return | 1311 | |
| GAMING | ||
| An assignment of an order for the payment of money, by one who obtained it 1372from the owner and payee as the result of a wager, is void under Stat. 9 Anne, c. 14 | 145 | |
| Garnishment. | ||
| See “Attachment” | ||
| GRANT. | ||
| See, also, “Public Lands.” | ||
| A Mexican grant of “a little more than three leagues held to carry but three leagues, to be taken from the larger tract named in the grant | 820 | |
| A Mexican land grant confirmed as against the United States, but without prejudice to third parties | 910 | |
| Claim to a Mexican land grant, rejected by the board, allowed on introduction of further evidence | 188 | |
| GUARANTY. | ||
| A certificate of railroad stock issued to a bank was taken by it as collateral security. On payment of the loan, the cashier signed a blank transfer on the back of the certificate and delivered it to the pledgor. Subsequently plaintiff loaned money to said pledgor on the security of the certificate, which was found to be forged. Held, that the bank was liable for plaintiff's loss | 1113 | |
| A holder of dishonored paper may sue the guarantor thereof without waiting the result of a suit against the principal debtor | 1343 | |
| GUARDIAN AND WARD. | ||
| See, also, “Infancy.” | ||
| Of the various kinds of guardians at common law, only one exists in Maryland, namely, the guardian by nature. Various kinds of guardianship considered and defined | 1171 | |
| The authority of a guardian appointed by the orphans' court, under Act Md. 1798, continues until full age of the ward, and he cannot be removed, except for refusal to give security. The ward cannot choose another, at the age of 14 | 1171 | |
| Act It. I. 1822, § 10, requiring service of notice on wards and their guardians, is repealed | 1103 | |
| A statute guardian cannot, except by authority of statute, represent his ward in court in a matter in which his interest is opposed to that of the ward | 1103 | |
| HABEAS CORPUS. | ||
| See, also, “Extradition.” | ||
| The federal district court, or the judge thereof, has jurisdiction to issue the writ and hear the case when petitioner is held under illegal restraint, without any formal or technical commitment | 17 | |
| The federal courts have exclusive jurisdiction whenever the applicant is illegally restrained of his liberty under or by color of the authority of the United States, and a district judge may issue the writ . | 17 | |
| The court refused to take further action where a military officer made return to the writ that he declined to obey it at the present time under orders from his superior, which were produced in court | 347 | |
| The history of the writ, under the judiciary acts and the force bill, as drawn from the adjudicated eases, given and explained by Treat, J | 17 | |
| The court may go behind the finding of a committing magistrate, and by certiorari examine the evidence taken before him; and may examine the magistrate as to evidence given and not reduced to writing | 875 | |
| HOMESTEAD. | ||
| Defendant held entitled to have set apart unincumbered property on which part of his family resides, within the limit of the exemption, rather than a much larger estate subject to an incumbrance to nearly its value | 663 | |
| The homestead-waiving clause inserted in a negotiable note of a firm by the partner who executed it is effective as to each member of the firm, both as to the firm and their individual property | 311 | |
| HUSBAND AND WIFE. | ||
| Proceeds of the sale of lands descended to the wife, which have never come to the husband's hands, cannot be attached by his creditors | 351 | |
| In Rhode Island, a deed of the wife's estate by the husband and wife does not convey her title unless duly acknowledged by her as prescribed by law | 572 | |
| A deed by the wife, joined in by her husband, when duly executed and acknowledged, will convey her title | 572 | |
| In Texas, a wife cannot charge her separate estate by becoming surety on a bond given by her husband as assignee in bankruptcy | 85 | |
| The wife, unless she be entitled to a sole and separate estate, can bring no suit without the union of her husband, in relation to her property or interests | 229 | |
| INDEMNITY. | ||
| A mortgage to indemnify may be subject to the rights of the creditor, though the mortgagee may not have paid the debt | 204 | |
| Indians. | ||
| See “Citizen.” | ||
| INDICTMENT AND INFORMATION. | ||
| Sufficiency of indictment for keeping a faro bank, under Act May 2, 1831, c. 37 | 702 | |
| INFANCY. | ||
| See, also, “Guardian and Ward.” | ||
| A minor may recover wages as a seaman, under a contract made personally with him, if he has no parent, guardian, or master entitled to receive his earnings | 1329 | |
| Quaere: Whether the defense of libelant's infancy is available otherwise than by plea to his competency to sue in his own name | 1329 | |
| INJUNCTION. | ||
| See, also, “Equity”; “Patents.” | ||
| Act Pa. March 21, 1806, § 2, in relation to statutory remedies, does not affect the remedy by injunction | 1012 | |
| Injunction against the prosecution of an action at law denied, unless complainant would confess judgment in such action | 1095 1373 | |
| The notice required (Act March. 1793, § 5) of an application for an injunction may be waived by an appearance | 793 | |
| Judges of federal courts will not follow the opinions of each other in deciding motions for preliminary injunctions | 690 | |
| On the dissolution of an injunction staying proceedings on a judgment, damages at 10 per cent, per annum are recoverable for the period the injunction was in force | 1052 | |
| INSOLVENCY. | ||
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy.” | ||
| Persons confined for torts and trespasses are not within the provisions of the act of congress, or that of South Carolina, for the relief of insolvent debtors | 925 | |
| Upon the petition of a creditor of an insolvent debtor to deprive him of the benefit of the insolvent act, defendant may show that petitioner is not his creditor | 589 | |
| INSURANCE. | ||
| See, also, “Marine Insurance.” | ||
| Policies are to be construed for indemnity of the assured and the advancement of trade | 1163 | |
| A policy on lithographic presses in a certain building, there being two presses then there, held not to cover a press subsequently put in, so as to make double insurance, within the meaning of a policy specifically insuring the latter press | 1163 | |
| The insurer is liable to the legal holder of the policy, though the person procuring it by mistake ordered it canceled | 815 | |
| A firm paying a draft for a cargo of grain on the faith of an insurance policy, indorsed to them by the shipper, is not affected by his mistake in ordering the policy canceled, although he was to share in the profit or loss on each cargo | 815 | |
| The mere fact that a premium has not been actually paid is no defense to a bona fide holder. In such case, mutual accounts have the effect of payment | 815 | |
| The acceptance by a general agent of overdue premiums is a waiver of the forfeiture, where the insured has no notice of limitation upon his powers | 125 | |
| But a notice in the policy and renewal certificates of limitations upon the agent's power is binding on the insured | 125 | |
| The receipt and holding of the premium until requirements are complied with is no waiver where the money is returned on non-compliance with the requirements | 125 | |
| The fact that the agent was in the habit of giving extensions of time to pay renewal premiums will not prevent the policy expiring, under its provisions, on nonpayment of the premium at the time when due | 349 | |
| A dividend due a policy holder should be applied to the payment of his premium, upon his request, if such has been the practice of the company | 604 | |
| A note given a foreign insurance company for premiums cannot be enforced by the company after it has failed to comply with the state law by obtaining a renewal of its certificate | 365 | |
| An action will not lie on the bond of an agent of a foreign insurance company for failing to pay over premiums collected after the company had failed to comply with the state law by obtaining a renewal of its certificate | 365 | |
| A creditor, to whom a policy was payable having received from the insurer the amount of his claim, and surrendered the policy, no action lies by the representatives of deceased against the insurer to recover the difference between the amount paid and the amount of the policy | 196 | |
| INTEREST. | ||
| See, also, “Banks and Banking”; “Usury.” | ||
| In admiralty, interest on cargo lost by collision runs at 0, not at 7, per cent | 991 | |
| INTERNAL REVENTUE. | ||
| Act July 20, 1868, in relation to a tax on distilled spirits, is not unconstitutional because of its regulations requiring a bond before commencing business, etc | 1061 | |
| The tax on 80 per cent, of the capacity of a distillery must be paid, whether so much is produced or not, under Act July 20, 1868, § 20 | 1060 | |
| The provision of section 10 of that act must be strictly followed in ascertaining the capacity of the distillery | 1060 | |
| The tax on distilled spirits is due the moment they are produced, and must be paid, even if they are afterwards destroyed by leakage or fire | 1060 | |
| Surplus earnings of a bank are not liable to a license tax under the act of June 30, 1864, § 79 | 1306 | |
| A supervisor may procure an attachment to compel a person liable to taxation to appear and testify, without showing that he acted under special instructions from the commissioner in issuing the summons | 1294 | |
| Under the acts of June 30, 1864, and July 13, 1866, no succession tax could be levied against the devisee of a remainder in fee until the life estate terminated | 1014 | |
| Under Act June 30, 1864, where personal property was bequeathed in trust for testator's widow for life, afterwards to his adult children, the legacy tax accrued on testator's death, though not payable until his widow's death, and was therefore unaffected by the repealing act of July 14, 1870 | 1063 | |
| A legacy tax “accrues,” so as to be exempt from the repealing provisions of the act of July 14, 1870, on the death of the testator | 1220 | |
| A dividend declared will form part of the taxable income of the stockholder, though he has not called for and received it. (Act July 1, 1802.) | 382 | |
| A tax upon the income of a person up to the time of his death, during the tax year, is properly assessed against his executor | 576 | |
| If an assessment of income tax under act July 1, 1862, is not made in legal form, the remedy of the person aggrieved is at law, and not in equity | 382 | |
| If such assessment is made in legal form the party aggrieved must pursue the remedy given by section 93 before he can resort to a court of equity for relief | 382 | |
| INTERNATIONAL LAW. | ||
| Strict neutrality must be observed between belligerents by other powers | 733 | |
| JUDGMENT. | ||
| See, also, “Bankruptcy”; “Execution.” | ||
| Rendition and entry. | ||
| Defendant will be permitted to come in and confess judgment for the whole damages 1374laid in the writ, although no declaration be filed | 324 | |
| Failure of defendant to produce a paper at the trial according to notice will not authorize judgment by default, unless there was an order of court to produce it | 1229 | |
| Validity. | ||
| A decree of a probate court made without notice, when the statute requires notice, is void as to the person not notified | 1103 | |
| Operation and effect. | ||
| A judgment in Ohio binds the real estate of defendant from the first day of the term at which it was rendered | 283 | |
| A permanent leasehold estate in land in Ohio is bound by a judgment against the owner | 283 | |
| A judgment appealed from the Ohio common pleas to the supreme court remains a lien on the land in the county | 280 | |
| All judgments rendered at the same term have equal liens on the realty of defendant, if execution be levied within a year | 283 | |
| A decree in a proceeding in rem binds all the world . | 625 | |
| A foreign attachment under Re v. Code Va. 1819, c. 123, is not a proceeding in rem | 625 | |
| The sentence of acquittal of a foreign court acting in rem, in cases of revenue, seizure, and prize, is conclusive except in cases of fraud | 483 | |
| Concealment of facts is no ground to avoid the sentence of a foreign court acting in rem | 483 | |
| A decree rendered in a suit between two parties is not admissible as evidence in a suit between one of those parties and a third person | 625 | |
| A decree for divorce declaring that articles previously entered into for alimony should remain in force is no bar to an action upon a bond given to perform those articles | 124 | |
| Where lands were devised with directions, to be sold by the executor, and a share of the proceeds paid to certain emancipated slaves, and in a suit against the executor, to which such legatees were not parties, it was decreed that they were incompetent to take, held, that this was no bar to their rights | 1096 | |
| A person compelled by the judgment of a court of competent jurisdiction to pay money to one man, having acted in good faith, is protected by that judgment from paying it to another | 1235 | |
| The rule that a judgment against one of several joint trespassers is no bar to an action against others applies in trover for successive conversions by different persons | 1125 | |
| A judgment of the Illinois circuit court under the state revenue law of February 26, 1839, is no bar unless it is shown that everything required by the statute to give jurisdiction was done | 1251 | |
| Relief against: Opening: Vacating. | ||
| A judgment of the circuit court of the District of Columbia cannot be superseded without two sureties | 589 | |
| The court will quash an execution upon a supersedeas judgment, and also the supersedeas judgment itself, if it does not truly recite the original judgment | 349 | |
| The orphans & court of Washington county, D. C., may review its sentence, even after the right of appeal is lost; and an appeal lies on that review | 1171 | |
| A petition for review in the orphans & court is analogous to a bill of review in chancery | 1171 | |
| Equity will not relieve against a judgment confessed by an attorney through defendant's negligence | 1038 | |
| An erroneous judgment cannot be set aside after the end of the term, unless entered by misprision or fraud | 1309 | |
| Satisfaction and discharge. | ||
| Where a judgment for money was on condition that plaintiff indemnify defendant against certain claims, which he refused to do, and defendant paid claims in excess of the judgment, held, that satisfaction must be entered | 1309 | |
| The lien of a satisfied judgment cannot be revived in favor of one of the debtors, who was a surety, to the prejudice of third persons | 264 | |
| Actions on judgments. | ||
| The enforcement of a judgment is regulated by the laws of the state where it is recovered, though the cause of action is a contract made in another state | 1105 | |
| JUSTICES OF THE PEACE. | ||
| A justice of the peace in Alexandria county, D. C., has jurisdiction in detinue | 1255 | |
| The creditor may if the debtor does not object, give a sufficient credit on the debt to bring it within the jurisdiction of the justice | 361 | |
| It is an indictable offense for a justice to demand any fees other than those established by law | 1144 | |
| A bond or writing obligatory cannot be given in evidence were the summons describes the cause of action as a note of hand | 361 | |
| No appeal lies from a judgment of a justice of the peace rendered upon the verdict of a jury | 361 | |
| LANDLORD AND TENANT. | ||
| Chairs left with a painter for repairs are not liable to distress for his rent | 1171 | |
| The landlord may distrain after the death of the lessee | 234 | |
| In replevin for goods distrained for rent, upon the issue of “no rent defendant,” defendant need not prove that the distress was laid by his order or authority | 234 | |
| LIBEL AND SLANDER. | ||
| One proprietor of a newspaper is responsible for the act of his coproprietor in publishing a libelous article | 49 | |
| The fact that the libelous article was copied from another paper, and so appeared on its face, is no justification | 49 | |
| But such fact is admissible in mitigation of damages under the general issue | 49 | |
| Under a plea of justification, no evidence in mitigation of damages can be given | 1263 | |
| Under a plea of justification, the truth of the libel, with the innuendoes, must be proved as laid | 1263 | |
| Under a plea of not guilty, defendants cannot prove the truth of the libel, even in mitigation of damages | 1263 | |
| Plaintiff in slander may have leave to withdraw his general replication and file a general demurrer, and the court will give defendant leave to change his plea | 107 | |
| The amount of damages for a libel depends upon the degree of malice | 49 | |
| LIENS. | ||
| See, also, “Admiralty”; “Bankruptcy”; “Maritime Liens”; “Shipping.” | ||
| Advances to the master to enable a ship detained in France to prosecute her homeward voyage are not a lien on the compensation awarded under the French convention | 1035 1375 | |
| LIMITATION OF ACTIONS. | ||
| See, also, “Adverse Possession”; “Ejectment'; “Equity”; “Maritime Liens.” | ||
| State statutes of limitation are applied in the federal courts, unless congress has otherwise provided | 896 | |
| A state statute of limiiations is ineffectual to bar a right of action secured to the United States by act of congress | 118 | |
| Nine months and a half allowed in a statute of limitations for bringing suit in causes of action accrued over four years prior thereto held reasonable | 797 | |
| The Indiana statute of 1852 gives full effect to the statutes of other states, and places debtors removing to Indiana in the same condition as if still in the place of the contract | 996 | |
| Under section 190 of the California probate act, suit to recover lands sold by an administrator by order of the probate court is barred in three years from the sale | 1314 | |
| The statute of limitations does not begin to run against an action by the assignee of a corporation to recover back a dividend wrongfully declared until the fraud is discovered by him | 506 | |
| Fraud which will prevent the running of limitations is secret or concealed fraud,—a concealment of the cause of action | 896 | |
| Where plaintiff has been negligent in discovering or attacking fraud, the statute will run from the commencement of his laches, notwithstanding the fraud | 896 | |
| In California, the exclusive right to recover real estate is in the administrator until distribution, and, if his right becomes barred by neglect, the right of the heir, though a minor, is also barred | 1314 | |
| The inability of an heir to sue to recover real estate pending administration is not a disability, within the meaning of section 191 of the California probate act | 1314 | |
| The exemption by Code Ga. § 2548, of an administrator from suit for one year from his qualification, held, not repealed by the limitation law of March 16, 1869 | 797 | |
| Act Ga. March 16, 1869, barred suits on causes accruing prior to June 1, 1865, if not brought by January 1, 1870. Held, that, in the case of an administrator, the time was extended one year. (Code, § 2548.) | 797 | |
| In the absence of positive provision, the statute, after it has commenced to run, is not suspended by defendant's removal from the state | 996 | |
| Action on note held barred in 13 years, notwithstanding frequent absences of defendant from the state | 14 | |
| The statute may be pleaded on the first day of the term next after office judgment | 1307 | |
| In trespass, the infancy or coverture of some joint plaintiffs does not prevent the plea of limitations as to the others | 855 | |
| Amendments made to the writ after the statute has run where they introduce no new cause of action, will not bar the right of action | 118 | |
| The act of limitations cannot be given in evidence upon nil debet | 153 | |
| LOTTERIES. | ||
| Liability of city of Washington, D. C., for prizes in “The Lottery for Building Lancastrian Schoolhouses, a Penitentiary and City Hall in Washington City.” | 1 | |
| MANDAMUS. | ||
| Mandamus will not lie to the head of an executive department to compel the performance of an act not merely ministerial, but involving the exercise of judgment | 74 | |
| MARINE INSURANCE. | ||
| See, also, “Average.” | ||
| The contract—Interpretation. | ||
| A policy on goods on board a vessel for a voyage out and return, “$12,000 valued,” must be considered an open policy for the return voyage | 216 | |
| A second policy on the return cargo of coffee valued at a certain sum per pound, deducting $12,000 previously insured, is only binding on the balance of cargo after deducting so much as would at first cost amount to $12,000 | 216 | |
| Representations: Concealments. | ||
| Concealment by the assured of the fact that part of the cargo is such as would be condemned by belligerent courts vitiates the whole policy | 849 | |
| The assured is not bound to anticipate and disclose every possible ground of suspicion which may weigh with belligerent cruisers; but he must disclose circumstances under which belligerent courts are in the habit of condemning, though against right. | 849 | |
| The risk. | ||
| Construction of exception in Boston policies with regard to seizure on account of illicit or prohibited trade | 483 | |
| In case of a capture, where the vessel is lost by fire or accident, or negligence of the captors before she is delivered up, the whole loss is attributable to the capture | 483 | |
| Underwriters are liable as for a total loss where a vessel seized for violation of revenue laws is acquitted by a foreign court, but by the long exposure is so injured that necessary repairs will amount to more than her value, and she is abandoned | 483 | |
| Where the insurer was to be liable for a total loss only, he is not liable where the cargo saved on the wreck of the vessel did not pay the expense of saving it | 707 | |
| Where the risk is to terminate, at the end of the voyage, after the vessel has been “moored 24 hours in a,” a mere anchoring in the usual anchorage grounds, for temporary purposes, does not end the risk. | 1323 | |
| Deviation. | ||
| The smallest deviation without justifiable necessity discharges the underwriters, though the loss is not an immediate consequence | 894 | |
| Abandonment. | ||
| The right to abandon is determined by the actual state of affairs at the time it is made. Where a captured vessel was restored at the time of attempted abandonment, though not known to the owner, held, that the same was ineffectual | 838 | |
| A waiver of abandonment by the first insurer does not affect the relations of the insured with a second insurer | 216 | |
| Abandonment in writing, pursuant to the policy, held to convey full title, so as to prevent claim of ownership by the assured after raising and repair of the vessel | 975 | |
| Right of recovery. | ||
| An alleged local custom to keep back one-third the gross freight for charges in a policy on freight where the loss is total is unreasonable, and will not control against the terms of the policy | 129 | |
| Suits. | ||
| Safe performance of voyage raises a presumption that the vessel was properly manned, and devolves upon the insurers of cargo injured by fire the burden of showing the contrary | 1323 1376 | |
| Where the property has been condemned by the court of a belligerent, only the sentence of that court is to be read in evidence, except under peculiar circumstances. | 851 | |
| MARITIME LIENS. | ||
| See, also, “Admiralty”; “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Demurrage”; “Salvage”; “Seamen”; “Shipping.” | ||
| Tie right to a lien. | ||
| A general creditor of a ship has no lien. | 1203 | |
| By the common law, the lien for work or repairs on a domestic ship does not exist independently of possession | 751 | |
| The repair of a vessel used to navigate tide water, although used partly on inland navigation, is a maritime contract | 293 | |
| Repairs upon a vessel in winter quarters in a foreign port, done by contract with the owner, there being no express claim of a lien at the time, and no immediate necessity for such repairs, do not constitute a lien | 520 | |
| A watchman on board a vessel laid up for repairs has no lien for wages | 111 | |
| The mate and engineer of an enrolled steamer employed in towing vessels in Boston harbor have a lien for their wages | 1268 | |
| Such lien extends to her boiler, though the seamen knew that the makers who put it in were to retain title until paid, with a right to remove it on any default | 1268 | |
| Where a vessel was sold on condition, and possession delivered, and one of the purchasers, after default, sold his interest to his partner, and engaged as mate, held, that he had no lien for wages as against a subsequent vendee of the owner | 973 | |
| That a bill for supplies is made out against the vessel by name and her owners is evidence that credit was given to the vessel, and that the personal responsibility was not exclusively relied on | 957 | |
| The maritime law gives no lien for supplies furnished at the home port | 957 | |
| The residence of the owner is the home port, though the vessel is enrolled elsewhere. The place of enrollment is only prima facie the home port | 957 | |
| Priority and enforcement. | ||
| Attachment of a vessel on process from a common-law court operates on nothing but the owner's interest after the maritime liens are satisfied | 1203 | |
| A bottomry bond given by the owner in a foreign port for money to purchase cargo held entitled to priority over an earlier mortgage, under which the mortgagor was allowed to remain in possession without alteration of the ship's papers | 938 | |
| Where a vessel was libeled in the home port while in possession of shipwrights, held, that they must be first paid; then a prior mortgagee; and, afterwards, one who made repairs, but was never in possession, ratably with furnishers of supplies | 810 | |
| The act of 1850 does not give a recorded mortgage priority over maritime liens, which by the maritime law are preferred to a bottomry bond | 810 | |
| Seamen's wages are payable out of proceeds prior to the claims of material men furnishing supplies during their employment | 957 | |
| The jurisdiction of the admiralty courts to enforce maritime liens cannot be ousted by any proceedings in the state courts by owners or agents | 293 | |
| Waiver: Discharge: Extinguishment. | ||
| Maritime liens are not divested by a sale of the vessel under process from a common-law court | 1203 | |
| Liens under state laws. | ||
| Whenever the existence of a lien on a vessel for work or repairs is established, under the local law, whether by statute or by common or municipal law, the jurisdiction of the admiralty attaches proprio vigore | 751 | |
| A lien held to have attached upon a vessel by the common law for materials furnished and repairs made, and' not to have been divested by a voluntary surrender of the vessel by the owner | 751 | |
| There is no statute law in Massachusetts (1840) which gives a lien in rem to shipwrights for building, equipping, or repairing ships | 751 | |
| MARRIAGE. | ||
| In Michigan, it is essential that a marriage shall be solemnized in the presence of a minister or magistrate, and two witnesses | *1326 | |
| Marriage articles are not affected by not being recorded within the time prescribed by the laws of New Jersey . | 451 | |
| Marriage articles will not be presumed to have been abandoned by any delay or negligence of the trustee in their execution | 451 | |
| A covenant by the father of the intended wife to stand seised to her use after marriage, of a piece of real estate, does not operate after marriage to pass the legal estate by the statute of uses; the use remains executory in the trustee and his heirs | 451 | |
| MARSHAL. | ||
| Plaintiff is liable to the marshal for his whole poundage if he levy goods to the value of the debt, whether they be sold or not | 1052 | |
| MASTER AND SERVANT. | ||
| A person employed to assist in unloading a vessel is charged with the usual knowledge of its construction, and the location of the usual hatches, and cannot recover for injuries caused by falling through an open hatch | 561 | |
| MORTGAGES. | ||
| See, also, “Chattel Mortgages”; “Shipping.” | ||
| A prior mortgagee may release his claim on payment of the debt, unless he have actual notice of the claims of subsequent mortgagees | 204 | |
| A person who may be chargeable with a balance in case the proceeds of the mortgaged premises do not satisfy the debt is an indispensable party to a foreclosure suit | 1091 | |
| The purchaser at a trustee's sale held not relieved from paying interest as agreed from the day of sale, pending investigation of the title, and waiting its clearing, though he refused to take possession | 761 | |
| But interest will cease to run from the time the money is paid into court . | 761 | |
| Auction sale set aside where a party interested publicly announced that it was merely a legal form to perfect his title, and that purchasers would be subject to a suit at law | 133 | |
| A mortgagor is not responsible, without notice, for the application of any surplus which may remain on the sale of the mortgaged property after satisfying his mortgage | 280 1377 | |
| MUNICIPAL CORPORATIONS. | ||
| The municipality of Alexandria, D. C., has power to prohibit the keeping of gaming tables under penalties to be recovered by warrant to be levied on the offender's personal property, though he be also liable to prosecution under the state law | 234 | |
| In a justice's warrant for the penalty of a by-law, all such defects will be disregarded as would be disregarded after verdict in debt or information upon a penal statute | 146 | |
| In respect to all acts which the corporation has power to perform, it may bind itself by those agents whom it suffers to act for it, and in the modes which its usages sanction . | 1343 | |
| The mayor, city attorney, and treasurer may engage attorneys to collect demands due the municipality, where they have ordinarily been suffered to make similar agreements . | 1343 | |
| When contracts have been made, acts done, and labor performed pursuant to a construction of a city charter, acquiesced in by all the citizens, that construction will be sustained, if justified by any possible reading of the statutes | 1343 | |
| In the ordinary course of its government, and in the conduct of improvements which it is the city's duty to make, it may execute promissory notes, bonds, and guaranties necessary and convenient for the purpose. | 1343 | |
| The mere fact that New Orleans consolidated bonds were older than bonds subsequently issued held to give them no priority over other bonds. (La. A ct. Feb. 23. 1852.) | 380 | |
| Money collected as provided by law to pay interest on bonds is a trust fund for such purpose, and the city will be enjoined from using it for other purposes . | 377 | |
| NAME. | ||
| “Jeffery” and “Jeffries” are not idem sonans . | 841 | |
| NAVIGABLE WATERS. | ||
| A steamer going at excessive speed through the channel between Blaekwell's Island and New York City, and thereby causing swells which sink a moored canal boat, is liable | 1066 | |
| One constructing a boom of specified dimensions under a private statute containing a proviso that navigation shall not be obstructed cannot assert that logs of others, which went into his boom were there by inevitable accident, and that he was not responsible for their detention | 1012 | |
| NE EXEAT. | ||
| The writ will not issue where plaintiff's clerk, about to quit the district, had embezzled his goods, and converted them into money, which he has deposited in a bank to his credit; no debt being positively averred | 202 | |
| NEW TRIAL. | ||
| New trial will be granted upon the discovery of new, material, and important evidence | 850 | |
| It must clearly appear that the newly-discovered evidence was not known before, and is not merely cumulative, and that the witness is credible | 353 | |
| Failure of witnesses to state facts which the party expected them to state is no ground for new trial . | 892 | |
| New trial not granted because of interest of a witness, where such interest would probably be released on another trial | 353 | |
| Errors of the court are no ground for a new trial where the verdict was right, and the moving party was not prejudiced | 790 | |
| The whole previous cost must be paid where a new trial is had on newly-discovered evidence | 353 | |
| NOTARIES. | ||
| Notaries public have authority to take the acknowledgment of creditors to their powers of attorney in bankruptcy proceedings | 71 | |
| OATH. | ||
| Affirmation by juror not a Quaker, not attached to any particular religious sect, not permitted | 151 | |
| PARTNERSHIP. | ||
| An agreement to furnish $3,000 and personal services to the business of another for a year, at a stipulated price, and not to be chargeable with losses, does not constitute a partnership as between the parties | 1149 | |
| But where the party furnishing such money holds himself out as a partner he is liable as such to creditors, and, in case of insolvency, the sum contributed is partnership assets | 1149 | |
| A partner cannot compel his copartner to accept a purchaser of the former's interest as a member of the firm | 317 | |
| Owners of whale ships, in the absence of express contract making them partners, are only part owners in the vessel | 353 | |
| The representations of a member of a firm to the purchaser of its negotiable paper that it is business paper will estop the firm or their assignee from setting up that it is accommodation paper, and void for usury . | 676 | |
| The dissolution of a partnership by mutual consent does not affect the rights of existing creditors, nor of those who subsequently become creditors, if the members continue to treat each other as partners. | 89 | |
| A debt put at the disposal of one partner after dissolution of the firm may be dealt with in equity as his individual property. | 232 | |
| A continuing partner who agrees, on dissolution of the firm, to pay the firm creditors, is a trustee for them, and a subsequent assignment by him, with preferences, of the partnership effects, is fraudulent and void | 793 | |
| PATENTS. | ||
| Patentability. | ||
| The substitution of wood for paper in the construction of a box of peculiar pattern does not amount to novelty . | 640 | |
| There is no invention in placing on a soft metal gun cartridge a bottom of hard metal, to give capacity for repeated discharges. | 1260 | |
| A metallic paint produced by well-known methods from the refuse left in the manufacture of bichromate of potash is not patentable as a new composition of matter. | 1165 | |
| A device consisting of perforated tubes set vertically in a grain bin, so as to allow a free circulation of air through the grain, thus preventing overheating, is anticipated by a prior invention of hollow perforated side walls for the same purpose. | 788 1378 | |
| The mere location of an old apparatus on a machine is not patentable unless it results in a new combination, producing new and useful results | 805 | |
| A prior invention to anticipate must have been reduced to practical use. The mere conception of the invention and experiments alone are not sufficient | 677, 684, 1133 | |
| Superior utility, where not derived from the use of better material or greater skill or care in the manufacture, is evidence of invention . | 684 | |
| The condition as to utility does not require that the thing invented should be the very best article for the use to which it is applied. Practicability is all that is required . | 677 | |
| The amount of labor, study, or thought which the invention cost is of no consequence, if it be really a new and useful invention . | 684 | |
| Combining a curved metal receiver with an elevated instead of a horizontal delivery involves no invention, and is not patentable | 635 | |
| A new and useful process for the making of hoop skirts held patentable, although effected by the use of a “former” previously known and used for other purposes | 630 | |
| The double independent leather covering for base balls, where such covering had been previously applied to soft balls, held not a patentable invention . | 494 | |
| A device for mending rents in firemen's hose by clamping the torn edges together between metal plates is not anticipated by a similar device for making preserving cans air-tight | 155 | |
| Who may obtain patent. | ||
| One first conceiving an invention, and using reasonable diligence to perfect it, and doing so in fact, is entitled to a patent over a subsequent original inventor who first reduces it to actual use | 843 | |
| Prior public use or sale. | ||
| Mere public use by others before issuance of the patent is not decisive against the inventor here, as in England. | 1332 | |
| The public use for more than two years before the application, which renders the patent void, may be a public use by the inventor himself of a single machine. | 302 | |
| The use of the invention in the inventor's factories, when not for the purpose of experiment, is a public use . | 643 | |
| Prior description or foreign patent. | ||
| Prior publications which do not so describe the invention that the public may construct and put it in practice without further invention do not destroy the patent | 302 | |
| An application withdrawn and instantly refiled in the same words is a continuing application, and not affected by the issuance of a foreign patent within six months before such refiling | 1136 | |
| Abandonment: Laches. | ||
| An inventor who knowingly suffers his invention to be in public use for years without objection dedicates the same to the public . | 1332 | |
| Passive conduct with knowledge of an appropriation by defendant, which the inventor is powerless to prevent, does not estop him from subsequently asserting his right on obtaining a patent . | 302 | |
| The proviso in Act 1870, § 35, providing for renewal of rejected applications, does not restore a right once lost by laches. | 818 | |
| The inventor delayed 12 years after the final rejection of his application on appeal to the commissioner before amending his specification. Held no abandonment | 302 | |
| Delay of 18 years in renewing a rejected application is an abandonment where another has in the meantime secured a patent for the same thing | 818 | |
| During two years before application made, the inventor may publicly use and sell his invention without any presumption of abandonment | 302 | |
| The first inventor's delay to apply for a patent for eight years after the second inventor has secured one bars him from thereafter making application | 705 | |
| Application and issue: Interference. | ||
| Upon the application, the commissioner should decide, not only questions of law, but also of fact, including abandonment or neglect | 705 | |
| It must be assumed from the granting of the patent that there was evidence before the commissioner to show that there was unavoidable delay in preparing the application for examination. (Act 1861.). | 302 | |
| The decision of the commissioner upon a question of fact upon which he is authorized to pass is unimpeachable, except upon the ground that it is ultra vires | 302 | |
| The commissioner, after deciding an interference, may, for cause shown, allow one party to withdraw and refile his application, and may then declare an interference anew | 1136 | |
| Appeals from commissioner's decision. | ||
| The questions of practicability and usefulness are not subject to appeal in cases of interference . | 1136 | |
| The judge cannot order reasons of appeal to be stricken out, but may overrule them | 1136 | |
| Validity. | ||
| A claim for a result merely, or for every means by which certain advantages in a harvester can be secured, is invalid | 805 | |
| A patent for a new article so described that it can be made without invention is not invalidated by an ineffective attempt made to describe the best machine for making it | 394 | |
| Patent held, on the evidence, to date back for 12 years before the application . | 37 | |
| Extent of claim. | ||
| The claims in a patent should be liberally construed, but must be limited by the state of the art, showing the degree of improvement effected | 635 | |
| A disclaimer made by an attorney in the prosecution of an application does not necessarily estop the patentee from maintaining that his claim embraces the matter referred to . | 635 | |
| Repeal of patent. | ||
| Method for repeal of patents provided for by Act 1793, § 10 | 96 | |
| Assignment. | ||
| The assignee of territorial rights not restricted as to sales within the territory, may, as to subsequent assignees of other territory, sell within his own territory without restriction or condition . | 183 | |
| Licenses. | ||
| The infringing articles were put into defendant's factory at its expense, under the direction of the inventor, and were used under his direction up to the time of the application for a patent. Held, that defendant had a special license to use such articles | 483 | |
| A grant of the exclusive right to “manufacture and sell” in a specified city carries to a purchaser from the licensee a right to use the machine anywhere | 1216 | |
| Sale of patented machine or product. | ||
| When a patented article has been lawfully made and sold without restriction or 1379condition, it is no longer within the monopoly, and the purchaser may use it without restriction as to time and place | 183 | |
| Infringement—What constitutes. | ||
| A patent for a composition of several ingredients covers known equivalents of each ingredient | 1133 | |
| The use of substantially the same means to accomplish the same result is an infringement | 1218 | |
| A mechanical equivalent is a means which may be adapted by the mere skill of a mechanic to accomplish the same result as the device used in the patent | 1218 | |
| An equivalent of a substance is another substance having similar properties and producing substantially the same effect. | 1133 | |
| A claim for a paint can having a thin rim of soft metal, to be cut through in opening, is infringed by making one end wholly of thin tin . | 1087 | |
| —Who liable. | ||
| One may be an infringer without knowing of the existence of the patent | 1133 | |
| —Remedy generally. | ||
| Equity has jurisdiction in case of infringement on the ground of want of adequate remedy at law. | 302 | |
| Defendants, in consideration of a license to manufacture under plaintiff's patents, expressly recognized their validity, and agreed not to manufacture certain articles covered thereby. Held, that plaintiff could sue in equity either for breach of the agreement or for infringement | 399 | |
| —Preliminary injunction. | ||
| Denied where the validity of the patent, six months old, was put in issue, and defendant alleged a license granted by complainant before the patent issued. | 140 | |
| A prior decree sustaining a patent, if entered by default, will not warrant a preliminary injunction in a subsequent suit | 640 | |
| The rendition of a verdict in favor of plaintiff is not conclusive upon his right to an injunction | 690 | |
| Where the patent is only recently granted, very strong evidence of acquiescence on the part of the community is required to justify a preliminary injunction | 640 | |
| —Procedure. | ||
| In an infringement suit, it is sufficient for plaintiff to aver that title is vested in him, without tracing it by the assignments | 1319 | |
| The express recognition by agreement of the validity of a patent, in consideration of a license, will estop the licensee, in a subsequent suit for infringement, to set up its invalidity | 399 | |
| A mere mercantile agreement not to deal in certain patented machines therein named is not an estoppel to deny the validity of the patent | 640 | |
| Prior knowledge of a person, of which notice is given, cannot be proved by another person, not mentioned in such notice | 677 | |
| —Evidence. | ||
| The patent is prima facie evidence that the patentee is the original inventor | 302 | |
| Declarations of the patentee, made after he had assigned all his interest, impeaching the validity of the patent, are inadmissible against the assignee . | 677 | |
| Nor is evidence of such declarations admissible to contradict the patentee, who has testified as a witness for the assignee, where he has not been interrogated as to such declarations | 677 | |
| The evidence on the subject of anticipation must be clear and convincing | 394 | |
| —Injunction and its violation. | ||
| The fact that defendant, who has sold an infringing article, sold it on behalf of its owner, and had no interest in it, or in its sale, is no ground of refusing an injunction against him | 563 | |
| Various particular inventions and patents. | ||
| Base balls. No. 127,098, for double leather covering, held invalid for want of invention | 494 | |
| Brushes. No. 160,933, for improvement, held infringed | 1320 | |
| Capstans. No. 63,917, for improvement in applying steam power to capstans, held valid and infringed | 302 | |
| Car wheels. No. 640, for improvement in mode of making cast-iron car wheels, construed | 677. 684, 690 | |
| Harvesters. No. 15,044 (reissued No. 4,281), for improvement, held invalid | 635 | |
| Harvesters. Reissue No. 2,254 (original No. 37,630), for an improvement in harvesters, consisting in a raking and reeling apparatus, construed, and held not infringed 805 Hats. No. 34,043, for improvement in men's hats, held valid and infringed | 553 | |
| Isinglass. No. 134,690, for improvement in manufacture, held invalid, the invention having been in public use for more than two years | 643 | |
| Jails. No. 110,483, for an invention relating to the construction of jails, construed in a charge, and found infringed by the jury | 1218 | |
| Metallic packing. No. 5,767, for an “improved composition for metallic packing in steam construed,” construed in a charge to a jury . | 1133 | |
| Paint cans. No. 24,748, for improvement, construed, and held valid and infringed | 1087, 1089 | |
| Ruffles. No. 28,244, for improvement in manufacture, construed | 394, 399 | |
| Shoe-sole machine. A patent for cutting the soles of shoes by means of a cutting die mounted on a shaft held infringed.— | 1258 | |
| Skirt protector. No. 155,534 held valid against the defense of anticipation, and infringed | 37, 38. 47, 48 | |
| Stop valves. No. 102,187, for an improvement in stop valves for petroleum packages, construed, and held not infringed | 1324 | |
| PAYMENT. | ||
| See, also, “Accord and Satisfaction”; “Bills, Notes, and Checks”; “Compromise.” | ||
| The giving of a bill or note is not a payment unless there is an agreement to receive it as such | 1272 | |
| If it be shown that a payment, acknowledged in a receipt, was by bill or note, which was not paid, then there is no payment | 1272 | |
| Where an indorser paid the amount of the note, but by mistake another note by the same maker was surrendered to him, held that it was nevertheless a payment of the first note | 1182 | |
| The giving of a note for supplies to a vessel will not bar a suit in admiralty on the original cause of action where libelant produces the note in court and surrenders it | 215 | |
| Reservation in 1779 of an annual rent of £26, current money in Virginia, permits payment in paper money while current, but requires gold and silver afterwards | 853 | |
| Money paid on contracts expressly prohibited by law cannot be recovered | 264 | |
| Where, on payment of a debt, a bond was given to secure the obligee against a possible subsequent payment “on compulsion of and,” and afterwards two suits were brought to recover the same debt, whereupon the obligee filed a bill of interpleader, 1380and paid the sum into court, held a voluntary payment, not recoverable under the bond | 1073 | |
| Advances made on account generally will be applied to extinguish the amounts due on contracts completed in preference to those not completed | 70 | |
| PERSONAL PROPERTY. | ||
| A lease for 99 years, renewable forever, by the common law is only a chattel | 283 | |
| PILOTS. | ||
| To charge one, as agent of a vessel, for half pilotage fees under the New York statute he must be shown to have some connection with her | 1036 | |
| PLEADING AT LAW. | ||
| The facts and circumstances which make an act unlawful or actionable must be set forth; the words “wrongfully and improperly” are insufficient to sustain the action | 580 | |
| Averment that an award was duly published is an averment that the notice of the award required by the submission was given . | 1120 | |
| A count on an award which requires a release by plaintiff on payment of a sum by defendant is bad on general demurrer if it failed to aver plaintiff's readiness to give the release | 1120 | |
| In debt on an award, a plea that the referees never made any such award as is averred is bad, as amounting to the general issue . | 1120 | |
| Where four counts declare on an alleged submission and award, a plea purporting to answer the whole action, but alleging revocation of one submission only, without showing which one of the four, is bad on general demurrer . | 1120 | |
| In an action by husband and wife, a plea in bar setting up pendency of another action between the same parties is not supported by evidence of a suit by the wife alone prior to marriage | 1168 | |
| A plea of non damnificatus is only pleadable to indemnifying bonds . | 996 | |
| A plea that the written contract set forth in the declaration is not the contract made by the parties, but is a fraud upon defendant, is bad on demurrer . | 43 | |
| A rejoinder is bad which avers several distinct answers to the replication, or puts in issue to the jury matter of law | 1 | |
| After a plea of general performance, a rejoinder stating an excuse for not performing is bad | 124 | |
| A demurrer for duplicity must point out the particulars in which the duplicity consists . | 888 | |
| A special demurrer operates as a general demurrer as to all the pleadings of the party demurring | 1 | |
| Upon a general demurrer, judgment goes against him who commits the first substantial fault in pleading | 1 | |
| A demurrer to a special plea cannot be carried back to the declaration where the general issue has been pleaded . | 43 | |
| Plea of general issue held to admit plaintiffs' right to sue in their firm name without proving the partnership . | 713 | |
| Upon a count “for sundry matters properly chargeable, as by account it,” it is not necessary that the account should be such as would be evidence per se under Act Md. 1729, c. 20 . | 234 | |
| Plaintiff may enter a nolle prosequi to any account in his declaration | 231 | |
| A defective averment of citizenship of parties may be amended after verdict | 362 | |
| PLEADING IN ADMIRALTY. | ||
| See, also, “Maritime Liens”; “Salvage”; “Seamen.” | ||
| The defense of stale claim must be set up in the answer | 1329 | |
| It is no defense to a libel for failure to deliver goods that no credit is given for freight earned. Such claims should be set up by cross libel | 1203 | |
| A respondent in a suit in personam, whose vessel is attached because personal service cannot be made in the district, does not waive his right to plead to the jurisdiction by filing a stipulation to secure the release of the vessel | 570 | |
| One verifying a libel as attorney in fact need not show his authority at the time. It is enough to show it when called in question | 911 | |
| A mere general employment as proctor to prosecute an admiralty suit does not authorize the verification of a libel as attorney in fact | 911 | |
| An answer cannot be amended, so as to contradict a material admission, after the cause has been heard . | 962 | |
| PLEADING IN EQUITY. | ||
| There is no absolute rule in regard to the multifariousness of a bill | 258 | |
| A bill for the discovery of the application for a policy of insurance, and the policy, and specific performance of the contract to deliver it is bad for multifariousness. | 759 | |
| A bill alleging infringement of several different patents by one machine of defendants is not multifarious . | 1319 | |
| Praying that a bill in another cause may be made a part of the present bill is the same as repeating all its statements . | 1038 | |
| A bill for relief on account of fraud in a sale may be broad enough to justify a decree if gross mistake appears . | 1016 | |
| Where fraud is charged to have been committed by an agent, denial by the principal on belief and on information from the agent is not sufficient . | 1038 | |
| When a plea is set down for hearing, under the 13th additional rule, and is not replied to, all the well-pleaded facts are taken as admitted | 1334 | |
| PLEADING UNDER STATE CODES. | ||
| Objection for duplicity, under the Oregon Code, must be made by motion to strike out | 157 | |
| A complaint containing more than one cause of action will be stricken out for duplicity, unless they are separately stated | 157 | |
| PLEDGE. | ||
| Pledged bonds sold at public auction, and bought in by the pledgee, may nevertheless be redeemed within a reasonable time; but a delay of 11 years after the sale is unreasonable . | 822 | |
| POWERS. | ||
| Where power is given to a cestui que use to appoint by will, it cannot be exercised 1381in any other way, and the court cannot interfere | 763 | |
| PRACTICE AT LAW. | ||
| Replevin discontinued by negligence of the clerk reinstated after lapse of a year | 15 | |
| The court will not, at a subsequent term, reinstate an action of replevin which has been non-prossed at a preceding term upon a rule to declare . | 13 | |
| Permission granted after rule day to plead the statute of limitations on payment of costs . | 855 | |
| On reinstatement after nonsuit, defendant not permitted to plead the statute of limitations unless he show it to be necessary for the justice of the case | 153 | |
| The order for production of papers at the trial must be served a reasonable time before they are required . | 337 | |
| On a writ of inquiry, plaintiff's oath may be given in evidence of the amount of his claim | 592 | |
| PRACTICE IN ADMIRALITY. | ||
| Admiralty requires a sworn libel as the foundation of process of arrest of person or property | 911 | |
| A motion to set aside an arrest for irregularity in libelant's proceedings will not be denied of course merely because not made at the earliest practicable day | 911 | |
| In holding a respondent to bail, admiralty is governed much by equitable considerations | 911 | |
| The question of jurisdiction in the case of a public armed vessel in the service of a foreign nation libeled by one claiming title thereto may be determined upon a suggestion filed by the district attorney acting under orders of the executive | 85 | |
| Under a libel of forfeiture, any one claiming an interest in the thing may intervene to contest the forfeiture | 953 | |
| A creditor who has attached the thing before seizure under a libel of forfeiture may intervene as a claimant | 953 | |
| In the absence of a specific rule, a replication is necessary to put in issue facts set up by sworn answer; if none be filed, such facts will be taken as admitted | 987 | |
| The court will not allow mere verbal understandings between counsel to control the rights of the parties . | 860 | |
| A vessel may be released on bond under Rev. St § 941, at any time before default is entered on the return of process | 870 | |
| The amendment of the libel by adding a colibelant does not discharge the surety on the stipulation . | 392 | |
| The taking of notes and mortgages from the owners as collateral security after the seizure and bonding of the vessel held not to operate to stay the suit nor discharge the surety . | 392 | |
| The taking of personal security is a waiver of the remedy in admiralty, but, if the security is returned, the liability in personam may be enforced by citation or ax-rest . | 835 | |
| On default of one summoned as garnishee, libelant is not entitled to execution in personam against him . | 44 | |
| After default by one summoned as garnishee, he is not entitled as of right to put in an answer, except to state facts occurring since the default . | 44 | |
| Such answer allowed on condition that libelant might take issue upon it, and that the garnishee should stipulate with sureties to pay whatever the court should allow. | 44 | |
| A motion will not lie to review a decree after writ of error lodged | 128 | |
| A rehearing after entry of a definitive decree will not be allowed after the end of the term, except by consent of the parties. | 860 | |
| PRACTICE IN EQUITY. | ||
| It is of right, and not of favor, that de fendant may file his answer before the decree nisi is made absolute | 1036 | |
| Where a time rule is waived, and no other substituted, some special order must he obtained before either party can force the other to proceed | 1332 | |
| That a defendant is in contempt in a suit against himself and another will not prevent him from filing an answer in another suit against himself only, though relating to the same matter | 1036 | |
| The court may direct further investigation where the master's report discloses facts which, in its opinion, should be further investigated . | 403 | |
| A master's report relates only to facts, and will not be set aside unless clear mistake or abuse of power is shown | 1029 | |
| Error of the master, producing results not materially different from what would be reached if there was no error, is no ground for setting aside or recommitting his report . | 1029 | |
| In the case of an alleged violation of a water privilege, the bill will not be retained after a decree in order to give plaintiffs an opportunity, by a new trial and proofs, to establish the fact that a further lowering of defendant's dam is necessary to the protection of plaintiff's rights . | 638 | |
| The proper practice in respect to filing bills of review is by petition stating the grounds and asking leave to file the bill | 1076 | |
| The ordinances of Lord Bacon still govern hills of review. They may be filed for errors of law and for newly-discovered material proofs | 1076 | |
| New matter which would have changed the decree is ground for review, though foreign to the issue | 1076 | |
| To authorize a review for new evidence, it must appear that the same could not have been discovered by reasonable diligence | 1076 | |
| Miscalculation leading to an excessive decree may be obviated as a ground of review by entering a credit for the excess | 1076 | |
| Lapse of time will bar a review, especially where death of persons interested leaves no probability of explanation . | 1076 | |
| It is not necessary in all cases to comply with a decree before it can be reviewed, as where a conveyance is required by it | 1076 | |
| PRINCIPAL AND AGENT. | ||
| See also. “Factors and Brokers.” | ||
| One having a contract right to purchase lands in a limited time, and selling the right before expiration thereof, is not an agent of the vendor, if there was a bona fide expectation that he might make the purchase; otherwise if the purpose was merely to speculate by selling the right within the time . | 1024 | |
| The principal, and not the agent, is liable for the negligence of the latter | 586 | |
| An agent purchasing property with money partly raised on his own credit may hold the same until indemnified, if his principal becomes insolvent | 1125 | |
| An agent receiving back from a maritime average adjuster a part of the sum charged for services must credit his principal therewith | 1169 | |
| An agent who undertakes to procure insurance, and does it so negligently that a 1382loss which occurs is not covered by the policy, is liable to his principal | 657 | |
| A direction to procure a policy of insurance is not satisfied by a verbal contract of insurance | 658 | |
| The principal need not maintain a suit on such verbal contract, where its validity is doubtful, before suing the agent for damages | 658 | |
| PRINCIPAL AND SURETY. | ||
| See, also, “Bail”; “Subrogation.” | ||
| A surety who has paid a debt cannot claim an assignment of the instrument evidencing it | 264 | |
| The surety who has paid the money upon execution may maintain an action against the principal for money had and received, though he holds the execution by assignment | 14 | |
| Property given to indemnify one surety will not be sold for the equal benefit of a cosurety where the former is discharged by payment of the debt | 264 | |
| PRIZE. | ||
| Grounds of condemnation. | ||
| Produce of the soil of a hostile country, embarked in the commerce thereof, is legitimate prize, regardless of the owner's domicile | 969 | |
| Produce of the enemy's soil owned by a neutral, while it remains in the enemy's country, is enemy property | 969 | |
| A neutral friend to both belligerents cannot transport the effects of one to the use of the other | 969 | |
| Property shipped from an enemy's country by an American citizen, after knowledge of the war, is subject to condemnation as enemy property * | 954 | |
| Property of persons residing within the rebel lines during the War of the Bebellion is proper prize | 969 | |
| The interest of creditors in enemy property, though amounting to a lien, does not exempt it from capture as prize | 969 | |
| A vessel guilty of an unlawful trade with the enemy is liable to capture at any time during the voyage | 1341 | |
| The rules of international law, in relation to public wars, are applicable to the hostilities subsisting during the War of the Rebellion | 969 | |
| The proclamation of the blockade is of itself conclusive evidence of the existence of war warranting the blockade | 969 | |
| A clear necessity will justify an entrance into a blockaded port, but satisfactory evidence will be required of the reality and urgency of the necessity | 530 | |
| Seizure of a vessel for violation of a blockade is lawful, though made by a national vessel forming no part of the blockading squadron | 1341 | |
| Vessel captured close in shore near blockaded port, with falsified papers, and cargo of first importance to enemy, condemned | 985 | |
| Vessel and cargo condemned for attempting to violate blockade 530, 719, 723, 733, 783, 932, 1005, 1341, 1343 Vessel and cargo condemned as enemy property | 723, 733 | |
| Procedure | ||
| A prize delivered to the court by the prize master is under its control, and the filing of a libel is not necessary to give it jurisdiction of the property | 1340 | |
| An order appointing appraisers before libel filed, without notice to any claimant, but under circumstances showing assent of subsequent claimants thereto, will not be set aside on their subsequent motion | 1340 | |
| That an order appointing appraisers was signed by the judge out of his district does not affect its validity | 1340 | |
| Admiralty has jurisdiction of claims by seamen to shares in prizes | 499 | |
| Members of a privateer's crew forced on shore without reasonable cause after the voyage is begun are entitled to share in prizes taken | 499 | |
| Salvors of captured property shipwrecked after seizure were allowed one-half the net proceeds | 733 | |
| Where the share of one owner in a vessel was condemned under the act of July 13, 1861, and the remainder acquitted, held, that the owner of the latter had no lien for outlays in fitting the vessel | 997 | |
| Abandonment by captors does not restore the rights of the owner; and, if the vessel is saved by others, the captors have a right, as against the owners, to a balance of proceeds | 981 | |
| After the lapse of the term in which a decree is rendered in a prize case, the authority of the court to revoke or alter it is extinct | 533 | |
| The allowance of costs and fees to counsel and officers in prize cases discussed. | 533 | |
| Unlawful capture: Damages. | ||
| A suit for consequential damages will lie for the illegal seizure of a vessel, by a French privateer, where there was a decree of restitution by the French court of admiralty | 127 | |
| One claiming in the acts of court to be part owner of a privateer is responsible for damages assessed against her, though not named in the ship's papers | 935 | |
| False papers divest a neutral vessel of all right to redress for an unlawful capture | 637 | |
| Where a capture is lawful, the subsequent bringing in of the captured vessel is not a cause for giving damages | 736 | |
| Ransom | ||
| A friendly belligerent may ransom the property of a neutral after capture | 513 | |
| An action may be sustained in a court of common law upon a bill of exchange given for the ransom of a vessel | 513 | |
| In such action the capture must be taken to be justifiable and the ransom regular, for a court of common law cannot incidentally decide a question of prize | 513 | |
| Duress arising from threats of destruction of the vessel and cargo cannot be admitted to avoid a contract of ransom, where the capture was justified by probable cause | 513 | |
| PUBLIC LANDS. | ||
| See, also, “Grant.” | ||
| Possession for 10 years under patent issued in 1827, pursuant to a New Madrid certificate or warrant, held sufficient to defeat ejectment | 174 | |
| RAILROAD COMPANIES. | ||
| See, also, “Carriers.” | ||
| Construction of acts of June 3, 1856, and May 5, 1864, granting land to Wisconsin for railroads from Madison or Columbus to the St. Croix river and from thence to Lake Superior and to Bayfield, and the effect of acceptance thereunder | 366 | |
| Neither a nonresident receiver nor more than one receiver should ordinarily be appointed for a railroad | 1321 | |
| A shipper whom the receiver of a railroad company had charged more than the 1383statutory rate of freight allowed to sue the receiver in the federal court for the excess. | 72 | |
| The federal court declined to order its receiver to disregard a state statute fixing maximum rates for freight and passengers on all the roads within the state | 72 | |
| Real Property. | ||
| See “Adverse Possession”; “Boundaries”; “Deed”; “Ejectment”; “Grant”; “Public Lands.” | ||
| RECEIVERS. | ||
| Previous notice of a motion for the appointment of a receiver is not necessary when counsel for the opposite party is present in court | 262 | |
| A receiver should be an impartial person, not interested in the litigation or a partisan of any party to it, | 1321 | |
| Two receivers appointed as representatives of different interests, which became hostile, removed, and a single disinterested receiver appointed | 1321 | |
| RECORDS. | ||
| The right to inspect and examine all the records and papers belonging to the court exists only as allowed by statute or rule of court | 237 | |
| REFERENCE. | ||
| Testimony merely filed with the report, without any bill of exceptions, cannot be considered on exceptions to the referee's decision, under Comp. Laws Mich. c. 186. | 45 | |
| RELIGIOUS SOCIETIES. | ||
| The vestry and wardens of the “Protestant Episcopal Church of Alexandria” held to have been the vestry of the Protestant Episcopal church in the parish of Fairfax | 1048 | |
| One taking an assignment of a pew in the Protestant Episcopal church in St. John's parish, Washington, D. C., for a debt, is not personally liable to the vestry for taxes thereon | 1180 | |
| REMOVAL OF CAUSES. | ||
| Right of removal. | ||
| The citizenship of the parties at the time of filing the petition for removal, and not that at the time of commencing the action, governs the right of removal | 116, 285 | |
| The right to removal is waived or lost where the cause has been remanded after it has been once removed, for failure, by neglect of defendant, to perfect the removal | 289 | |
| It is sufficient if the matter in dispute exceeds $500, besides costs, at the time when the right to the removal accrues and is applied for. (Act July 27, 1866.) | 116 | |
| One of several defendants sued as copartners may have the cause removed so far as concerns himself | 116 | |
| Time for removal. | ||
| The petition is in time if filed before or at the term at which the cause “could be tried, and before the trial thereof.” (Act 1875, §§ 2, 3.) | 289 | |
| A cause commenced by attachment, in which no process was issued or served, held removable by petition filed at the term at which appearance was entered by consent, the cause continued, and time given to answer. (Code Iowa, § 2744.) | 12 | |
| Where a cause has been regularly removed, and is subsequently remanded for neglect of defendant to file a copy of the record in time, a petition filed at the first term after the remand is in time | 289 | |
| Proceedings to obtain. | ||
| A petition which does not state the citizenship of both parties is fatally defective. | 310 | |
| A petition for removal to the federal “circuit or district court” is not fatally defective, as the removal can only be to the former court | 351 | |
| The filing of a proper bond is a condition precedent to a removal | 310 | |
| A removal bond not conditioned for costs in case the cause is remanded to the state court is defective. (Act March 3, 1875.) | 310 | |
| Effect of removal: Subsequent proceedings. | ||
| When all requisites of the act are complied with, the state court has no right to deny a removal, and its subsequent acts are void | 1113 | |
| On a removal under the act of 1789, certified copies of the process in the state court, and of an order of that court for their transmission, should be entered in the federal court | 895 | |
| Where the removal proceedings are perfected, the circuit court, on petition and notice, will grant leave to file the record before the day appointed by statute, for the purpose of administering provisional remedies to which petitioner may he entitled | 495 | |
| Motion to remand may be made before the trial, where there are no disputed facts. | 390 | |
| A party is not guilty of laches affecting his right to move to remand because he did not in the first instance oppose the removal in the state court | 310 | |
| The cause will be remanded where the removing party fails, without other excuse than inadvertence, to file, a copy of the record in the federal court until after the day named in the removeble bond for such filing. | 285 | |
| A cause removed on the ground that defendant has a defense arising under the laws of the United States will be remanded when it appears by defendant's answer that no such defense is claimed or made | 390 | |
| Where a cause has been removed under the judiciary act of 1789, the case stands as though it had been originally commenced in the circuit court | 298 | |
| Under the act of 1789, a new declaration must be filed in the federal court as if the suit were original there, before defendant is required to plead | 895 | |
| An injunction allowed by the state court before the petition was filed necessarily falls on the removal of the cause; and defendant cannot be punished for its violation | 298 | |
| REPLEVIN. | ||
| Replevin does not lie for goods converted by a bailee thereof. Detinue or trover is the proper remedy | 1302 | |
| On non cepit the issue must be for defendant if there was not a wrongful taking. | 1302 | |
| The merits of the case may be given in evidence in mitigation of damages in an action upon a replevin bond | 13 | |
| RIGHT, WRIT OF | ||
| It is not a bar to the writ that there has been a judgment on a petition for partition between the same parties in favor of the tenant upon an issue joined therein upon the sole seisin of demandant | 545 1384 | |
| RULES OF COURT. | ||
| Rule 96 of the district court of the Southern district of New York of 1838 held to be abrogated by circuit court rules of 1845. | 574 | |
| SALE. | ||
| An order, “Please ship me at once 25 bbls. same whisky I had before,” is an order for a cash sale | 362 | |
| Where the seller sent an invoice for goods ordered, and a draft for the amount, with a request to accept and return it, held that the sale was conditional, and title did not pass until the condition was complied with | 362 | |
| The seller may replevy such goods from a marshal who has levied upon them as the property of the purchaser | 362 | |
| The purchaser of a horse gave in payment an order on a third person, payable at a future day. Subsequently he countermanded it, and acceptance was refused. Held, that an action would not lie for the price before the time when the order was payable | 450 | |
| The purchaser cannot claim damages upon a warranty or an advertisement where he purchases after an examination | 351 | |
| SALVAGE. | ||
| Jurisdiction. | ||
| A derrick boat raised from the bottom of the channel of a public navigable river may be the subject of a libel for salvage in admiralty | 564 | |
| In salvage cases, the district court has jurisdiction to determine the right to a balance of proceeds as between adverse claimants; and this notwithstanding that it involves an adjudication upon the validity of a capture at sea, and the effect of a subsequent abandonment | 981 | |
| Right to salvage compensation. | ||
| Salvage is the saving of property from extraordinary sea peril by persons not bound by contract to render the service. A signal of distress is evidence of such peril | 1272 | |
| A vessel driven on an island in Boston harbor in the daytime set a signal of distress. A tug pulled her off and towed her to a dock. Held, a salvage service, for which $1,500, on a valuation of $33,000, should be awarded | 1272 | |
| The fact of peril is to be ascertained from the circumstances surrounding the boat at the time when the salvage services commenced | 112 | |
| One man left by design or negligence on an abandoned ship is thereby discharged, and may claim salvage for assisting to save her | 1009 | |
| Services of the mate and four men of a wrecked vessel in crossing the Gulf in an open boat to procure assistance held a salvage service | 985 | |
| Piloting a vessel through dangerous shoals, where she could not have made her way unaided, is salvage service, if performed in connection with other salvage service | 740 | |
| A person requested to take charge as master of a vessel in peril, and save her, if possible, is not deprived of salvage compensation where no definite contract is made with him | 112 | |
| The fact that the exertions of the salvor did not save the boat, but she was saved by natural causes, will not affect his right to salvage, where he encountered the danger, and did all he could under the circumstances | 112 | |
| Salvage earned by an apprentice is payable to him, and not to his master | 1009 | |
| Associates of a salvor with whom a master corruptly agrees to wreck his ship cannot recover salvage | 556 | |
| The wrongful act of a master in wrecking his ship does not bar the claim of a salvor not in collusion with him | 556 | |
| Contracts for salvage services. | ||
| A contract for a compensation to be paid at all events, whether the property is saved or not, creates a mere personal obligation, and no lien attaches on account of it | 777 | |
| A salvor by contract is not the agent of the owners, and cannot create against them or the property saved any liability beyond the contract price | 777 | |
| A person who has knowledge of a contract, between a wrecking company and the owners of a wrecked vessel, to raise the same for a certain interest therein, cannot maintain a libel in rem for services rendered for the wrecking company | 777 | |
| Forfeiture of salvage. | ||
| Embezzlement of salved property by one of the salvors forfeits his share | 1009 | |
| Amount | ||
| Salvage services rendered, without uncommon skill or exertions, to a ship in no great danger of loss, are of small merit | 695 | |
| Allowances in cases arising on the high seas are not safe precedents in cases arising on the Western rivers | 1142 | |
| In the ease of a derelict sent in by a salvage crew, the reward should be such as would induce reasonable persons to encounter the peril and expense of such undertakings | 981 | |
| Three-fifths of the gross value allowed where a derelict found in a sinking condition was, at great risk, and without boats or anchors, brought 3,000 miles to port. | 1009 | |
| One-third of the gross proceeds allowed in the case of a derelict sent in by a salvage crew from a vessel bound to a foreign port | 981 | |
| An allowance of one-third the value of cargo saved for services of a tug consuming half an hour reduced on appeal from nearly $2,700 to $750 | 1142 | |
| Thirty-six to 45 per cent, awarded on the value of property saved from a wreck in bad weather | 985 | |
| Forty-three to 50 per cent, of cargo and materials saved from a wreck awarded to the salvors | 1255 | |
| Eight vessels, with 120 men, saving cargo and materials from a wreck in boisterous weather, awarded $18,468 on a valuation of $50,227 | 993 | |
| Sums awarded to various vessels and crews for saving cotton from a wreck | 972 | |
| One and one-half per cent, on $15,000 allowed | 483 | |
| Remedies for recovery. | ||
| Facts tending to show that the master willfully caused the wreck may be considered, though not introduced by either party, and brought to the court's notice by accident | 556 | |
| The master's neglect of reasonable precautions to prevent wreck, and of reasonable efforts to remedy the same without help, is evidence that the ship was willfully wrecked by him | 556 | |
| Where two libels are unnecessarily filed for salvage, the increased costs must be borne by the libelants in the second libel | 993 | |
| SCIRE FACIAS. | ||
| The remedy for a defective return of a sci. fa. against terre-tenants is a motion to quash the return. But such return may be amended | 589 1385 | |
| The terre-tenants warned may plead in delay of execution that there are other terre-tenants in the same county not summoned | 589 | |
| SEAMEN. | ||
| See, also, “Admiralty”; “Maritime Liens.” | ||
| Protection and relief. | ||
| Under the act of 1803, the consul is the proper judge as to what ship shall bring to the United States a destitute seaman | 1128 | |
| The fact that the seaman has deserted from a ship still in port does not prevent the consul from requiring another ship to bring him home | 1128 | |
| Foreigners employed as seamen in American merchant ships are seamen “of the United within,” within the meaning of the act of 1803, c. 62 | 1128 | |
| An action against a master for the penalty given by Act 1803 for refusing to bring destitute seamen to the United States must be brought in the name of the United States, and not of the consul | 1128 | |
| In such action the certificate of the consul is prima facie evidence of the facts | 1128 | |
| Double wages are given under Act July 20, 1790, § 9. if there is a shortage in any one of the three articles named therein 946, | 1000 | |
| In determining whether an allowance be short or not, the navy ration is the standard 946, | 1000 | |
| Five pounds a week is a short allowance of bread, within the statute | 1000 | |
| An overabundance of meat cannot be substituted for the bread required by the statute | 1000 | |
| If the master is unable to obtain the kind of provisions required by the statute, other kinds may be substituted | 946 | |
| The contract of shipment. | ||
| Where the shipping articles for a sea-elephant voyage contained novel provisions for computing the shares, held, that the seamen, whose attention was not called thereto, were not bound by them | 1270 | |
| A clause in use only three years in shipping articles, and authorizing the master to disrate any seaman whom he judged incompetent or indisposed to his duty, held not binding where it was not brought to the Seaman's notice | 1092 | |
| Seamen on a fishing voyage, who were discharged on an island in the Pacific, and then entered for a new voyage held not bound by the shipping articles, but entitled to a quantum meruit | 1270 | |
| The shipping articles must declare explicitly the ports at which the voyage is to begin and end | 384 | |
| Where the voyage is “from Philadelphia to South America, or any other port or ports, backwards and forwards, when and where required, and back to the,” the master may proceed from South America to Europe | 384 | |
| A ship is bound by her master's contract for any voyage for which he has authority to engage her | 204 | |
| Foreign seamen unwittingly shipping for a voyage wherein the navigation acts forbid their employment, may recover in rem damages resulting from nonperformance | 204 | |
| Whether seamen are bound to remain after the end of a voyage to assist in discharging depends on the custom of the port. | 946 | |
| That the cargo is owned by the freighter does not make the mere arrival in port a delivery, within the meaning of the shipping articles. Such ownership is no ground of distinction | 860 | |
| Under the British law, where an injured seaman is left behind in a foreign port, his wages stop, but the ship is liable for his cure and care | 448 | |
| Where a sick seaman, left behind at a foreign port, is picked up by the vessel on the same voyage, it will be presumed that the old rate of wages is to be paid him, where there is no express agreement | 448 | |
| The first engineer, who employs the second engineer, may also discharge him, even against the consent of the master | 450 | |
| Condnct of master or mate in respect to seamen. | ||
| The imprisonment of a seaman in a foreign jail at the instance of the master is only justified by extreme necessity., | 384 | |
| A master who causes a seaman to be imprisoned on shore must, before leaving port, ascertain if he is willing to return to duty | 725 | |
| Wages—Right to. | ||
| The right of a seaman to wages is not founded in the articles, but in the service | 499 | |
| The right in respect to wages depends upon the law of the flag; without regard to the nationality of the seamen themselves | 448 | |
| Where the ship is captured by a belligerent and condemned, the seamen lose their wages, though the owner receives full insurance on the freight | 348 | |
| Where the owner of a wrecked vessel takes the business of salvage out of the hands of the seamen, and furnishes them no subsistence, they may recover wages from the remnants | 1070 | |
| Seamen saving remnants of their wrecked vessel to the amount of their wages are entitled to wages as such, though no freight be earned | 1070 | |
| A seaman left in a foreign port because the master desired to be rid of him held entitled to wages to the end of the voyage, and expenses | 960 | |
| A seaman rightfully imprisoned on shore for misconduct, but wrongfully left behind, may claim wages for the time he was imprisoned | 725 | |
| Where the voyage is broken up without cause, and without the Seaman's consent, he may recover wages for the whole voyage stipulated, deducting his earnings meanwhile | 725 | |
| Seamen on a vessel forfeited as fitted out for the slave trade are entitled to wages if ignorant of the criminal purpose of the voyage | 949 | |
| The fact that a coasting vessel has no license does not affect the right to wages if the seamen are ignorant thereof | 945 | |
| The wages of a mariner who ships during war should not be lessened because a peace takes place while the vessel is at her outward port | 7 | |
| —Remedies for recovery. | ||
| Seamen on a small licensed coasting vessel employed in taking paving stones from Marshfield and Scituate Beaches to Boston have a lien for their wages | 945 | |
| There is no rule prescribing the time for proceedings to enforce the lien for wages | 936 | |
| Forbearance by seamen to libel their vessel at a port where they are discharged before the end of the voyage is not a waiver of their lien as against a subsequent bonafide purchaser | 936 | |
| A sheriff's sale of a steamboat will not discharge the lien for Seaman's wages of the owner's minor son, who for two years had been permitted to receive his own wages, and control his own actions | 111 1386 | |
| A libel for wages brought before the wages are due must be dismissed, if duly excepted to on that ground, though the right is perfected in the meantime | 860 | |
| Ordinarily, 15 days is a reasonable time for unloading, and a suit for wages brought on the fourteenth day must be dismissed as premature | 860 | |
| Wages are due immediately on voluntary discharge, and if not paid within 10 days thereafter, the seamen may sue in rem | 946 | |
| A receipt by a seaman in full of all demands is no bar to a claim for which he has not received compensation | 1000 | |
| The master and owners of a whaling ship are not liable to be sued jointly for a Seaman's lay | 1092 | |
| In a libel in rem for wages, the defense of stale claim will not avail a purchaser who retains part of the purchase money, and defends in the interest of the vendor | 1329 | |
| A plea of misconduct in defense of a suit for wages must allege the facts with due certainty of time, place, and other circumstances; otherwise it will be rejected | 337 | |
| A mere offer of the master to pay wages, to avoid a libel, is not an admission that the wages are due | 860 | |
| Ship's articles, with the signature of the sailor, are prima facie evidence of his having been on board the vessel | 555 | |
| The log-book entry is legal evidence of the time of the Seaman's coming on board and leaving the vessel. (Act 1790.) | 555 | |
| —Deductions: Extinguishment, etc. | ||
| Damages can be recovered for misconduct only when they are the direct and immediate results of the Seaman's acts or omissions | 337 | |
| The crew were ordered to contribute for a loss by embezzlement where strangers assisted in loading the cargo, but the fault could not be fixed | 749 | |
| The vessel owner cannot retain wages as a contribution for injuries from a collision, alleged to have been caused by their negligence, until after the legal liability is established | 750 | |
| The costs and charges of an imprisonment for violation of the laws of the country may be deducted from the Seaman's wages | 384 | |
| The master cannot deduct from the wages of seamen of a wrecked British vessel expenses of their board and transportation home | 340 | |
| Drunkenness of the mate in ports, when not on board, is no bar to wages, unless his duties were interfered with | 1111 | |
| Allowance by the master of full wages, and giving a draft therefor, imports that any grounds of complaint for intoxication were forgiven | 1111 | |
| Rebellious conduct will not justify total forfeiture when resulting from sudden irritation aroused by inconsiderate treatment | 914 | |
| Misconduct will not be punished by an absolute forfeiture of wages and effects on board unless continued or repeated or of a highly aggravated character | 725 | |
| Receiving a seaman on board after the time appointed does not remit the penalty for his neglect to render himself | 555 | |
| Gross deviation from the chartered voyage will not justify seamen in taking possession at sea | 949 | |
| Seasonable ground of suspicion that the vessel is about to engage in the slave trade does not justify the seamen in taking possession of her at sea or in a foreign port and bringing her home; and by so doing they forfeit all wages | 949 | |
| Willful derangement of the engine by an engineer, in order to compel the boat to stop Pago at a certain port, at which he desired to leave, will work a forfeiture of wages | 450 | |
| Where a seaman employed by the month leaves before his month is up, Ms entire unpaid wages are forfeited | 450 | |
| There can be no desertion after the voyage is ended by mooring the vessel in her last port of discharge, though the seamen are bound by the shipping articles to remain till delivery of the cargo | 860 | |
| The prescribed entry in the log book is indispensable to subject a seaman to the forfeiture of his wages for desertion. (Act July 20, 1790.) 384, 555, | 860 | |
| But such entry is not incontrovertible. | 555 | |
| Seamen do not forfeit wages by a departure from the vessel before termination of the voyage, where it is involuntary or with reasonable cause, or with apparent assent of the master | 384 | |
| Cruelty of the master will justify leaving the vessel only where it is apparent that the seaman could not remain without extreme danger to his personal safety | 384 | |
| SEIZURE. | ||
| See, also, “Prize.” | ||
| A certificate of probable cause cannot be granted where there has been neither claim nor trial, nor decree, nor anything to which an appeal could lie | 535 | |
| Restitution and acceptance held a mutual release, barring a claim for damages for unlawful seizure | 535 | |
| Reasonable ground for a seizure is a defense to a libel for damages | 535 | |
| The court will entertain the question of damages, as well as costs, at the same time with the principal question of the legality of the arrest of the vessel | 535 | |
| SHIPPING. | ||
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Bespondentia”; “Carriers”; “Collision”; “Demurrage”: “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage.” | ||
| Public regulation. | ||
| A vessel built in Canada, and owned in the United States, is not a vessel of the United States, entitled to registry | 997 | |
| Under the act of July 18, 1866, § 24, the forfeiture of a vessel for fraudulently obtaining a certificate of registry is absolute | 968 | |
| A sale to a corporation organized and existing under the laws of a foreign country is a sale “to a subject or citizen of a foreign prince or state” (Act Dec. 31, 1792, § 16), regardless of the citizenship of the shareholders | 726 | |
| A sale upon credit, and upon the condition that the purchaser shall not use the vessel until the purchase money is all paid, and that on default the seller may retake the vessel, is a sale within the registry laws. | 726 | |
| The navigation of a vessel under an American register after her sale to a foreign subject is a violation of section 27 of the registry act | 726 | |
| If documents by which registry of a vessel has been obtained are identified and come from the possession of the government, the signatures need not be proved | 968 | |
| The provisions of section 2 of the passenger act of March 3, 1855, do not apply to steamships | 596 | |
| An unlicensed engineer cannot recover wages for services on a steam vessel engaged 1387in carrying passengers on the waters of the United States | 726 | |
| Title to vessel. | ||
| Part owners of a vessel are not partners, and each may maintain a separate action against the ship's husband for his proportion of the freight; and this though he be one of the part owners | 488 | |
| Minority owner held entitled to security for the return of the vessel, though he did not dissent from the voyage until the vessel was nearly ready for sea, where he had previously refused to share expenses of the outfit | 711 | |
| A part owner of a vessel, dissenting from a voyage and receiving a stipulation from the other owners for the vessel's safe return, is not entitled to compensation for the use of his part of the vessel during the voyage | 709 | |
| The master. | ||
| Where the master of a fishing vessel is to fit her out and cure the fish himself, giving the owner part of the catch, and paying all bills from the proceeds of the remainder before division with the crew, he is owner pro hac vice, and responsible for the “small generals” | 1266 | |
| The vessel owners are liable for torts of the master when they involve a breach of the passenger's contract and are done while acting within the scope of his employment | 141 | |
| Where, in a port of necessity, the master puts his vessel in charge of the charterer's agent for payment of disbursements, he is bound to produce his accounts when applying for money, according to the usage of the port | 1169 | |
| Where, in such case, funds were provided by the charterer's agent, but the master broke off negotiations, and employed someone else, held, that the charterer could recover the agreed commission | 1169 | |
| The master may sell a perishable cargo where the consignee refuses to receive it, and it cannot readily be stored in a place suitable to preserve it; and he need not wait the expiration of lay days | 740 | |
| A master claiming the gratuitous privilege of taking his wife and child on the voyage must show a distinct understanding to that effect | 837 | |
| An error of the master in regard to provisions, making it necessary to return to port for an additional supply, held not so gross as to take away his right to wages. | 837 | |
| Liabilities of vessels or owners. | ||
| The ship is liable in rem upon the master's contract of affreightment, though it is let to him by charter-party, where the shipper is ignorant of that fact | 11 | |
| A vessel illegally seized by an American consul in a foreign port, and sent home, is liable for wages of the crew and pilotage | 740 | |
| Employes on vessels cannot recover for injuries caused by the mere negligence of the officers or other employes | 561 | |
| A shipowner who provides a seaworthy vessel, properly equipped, and commanded by competent officers, has discharged his duty towards the subordinates, and cannot he held liable for mere neglect of officers | 561 | |
| The share of a part owner in a vessel or the proceeds of a voyage is not under a lien in law to pay another part owner for his extra advances | 353 | |
| The giving of credit to one part owner and the taking of his separate note, where the other owners settle with him on the basis thereof, bars recovery against them by the creditor | 353 | |
| SLAVERY. | ||
| A devise to emancipated slaves by their former master is valid in Mississippi | 1096 | |
| The act of congress relating to the reclamation of fugitive slaves is valid | 881 | |
| The writ de homine replegiando is applicable to the trial of the question of slavery | 881 | |
| No process is usual or necessary for seizing a fugitive slave, to take him before a magistrate, under the act of congress of 1793 | 881 | |
| There is no right of trial by jury of the question of slavery when a fugitive is brought before a magistrate under the act of congress | 881 | |
| In a suit for freedom, the court will not question jurors, as they are called up to be sworn, as to their prepossessions in favor of freedom | 1106 | |
| Slaves carried by their owner from Mississippi to Ohio, with intent that they should become free, acquired freedom, and did not lose it by returning to Mississippi with their former master for temporary purposes | 1096 | |
| There is no presumption from lapse of time in favor of persons who rely on the proviso in the Virginia law in relation to persons bringing their slaves into Virginia. | 1106 | |
| Right to freedom of slaves brought into the District of Columbia | 949 | |
| Evidence of an importation contrary to Act Md. 1796, c. 67 | 732 | |
| The proprietor of a stage who allows a slave to depart in his stage without consent of the owner is liable for damages for his running away | 580 | |
| Color is prima facie evidence of slavery | 580 | |
| Stage owners held liable for damages in suffering a slave to go off in their coach by means of a false certificate of freedom | 586 | |
| SPECIFIC PERFORMANCE. | ||
| A person who seeks performance of an award respecting realty must show a readiness to perform all the award on his part | 326 | |
| A delay of two years in making payment held not to bar specific performance where the vendee had made valuable improvements without objection from the vendor, who sustained no damage which interest would not compensate | 1065 | |
| After long delay and laches, equity will not decree specific performance of an award respecting realty where there has been a material change of circumstance and injury to the other party | 326 | |
| Where the property had decreased half in value, the court refused, after a delay of many years, to decree specific performance, but ordered a rescission of the contract and repayment of the amount paid | 167 | |
| Bill for reconveyance of an estate upon an agreement and subsequent award dismissed under the circumstances, the bill being brought against purchasers after a considerable lapse of time, the original vendee having died insolvent | 326 | |
| A bill for specific performance of an agreement to deliver a contract of insurance cannot be maintained after the lapse of 10 years | 759 | |
| On a bill against the purchaser of the legal title a notice to defendant, relied on by plaintiff, must be averred and proved | 326 | |
| STATUTES. | ||
| The publication of the second edition of the Revised Statutes under Act March 2, 13881877, did not affect any statute passed subsequently to December 1, 1873 | 289 | |
| An act whose subject is disposing of insolvent debtors' property may properly include a provision that the assignment in insolvency shall discharge prior attachments | 1229 | |
| A prohibition of amendments by mere reference to the title of an act does not prevent repeals by implication | 1229 | |
| SUBROGATION. | ||
| The security given by the maker of a note to the indorser may, after both are insolvent and the surety's liability has become fixed, be recovered by the holder and applied in payment | 1094 | |
| TAXATION. | ||
| See, also, “Internal Revenue.” | ||
| A statute providing that the rate per cent, of the tax in each municipality shall be in proportion to the indebtedness of each is not in conflict with a constitutional provision that taxation shall be equal and uniform throughout the state | 377 | |
| Act Ark. T. Oct. 26, 1825, in relation to the mode of collecting taxes, held inapplicable to nonresidents | 144 | |
| Where fees were improperly received by a sheriff acting as a tax collector, held that penalties were recoverable | 144 | |
| A collector must make a demand on the owner of land for taxes before judgment can be rendered against the land | 1251 | |
| An Auditor's tax deed is prima facie good, and is a title deducible of record, within the meaning of the Illinois statute of March 3, 1845, § 11 | 1146 | |
| In Illinois, an Auditor's tax deed, coupled with seven years' possession and payment of taxes, gives good title | 1146 | |
| A tax sale and conveyance in pursuance thereof (in Virginia) vests the purchaser with the title of the person assessed with the taxes at the beginning of the tax year, notwithstanding irregularities in the proceedings, if they do not appear on the face thereof | 343 | |
| The deed, when regular, is prima facie evidence that the proceedings were regular, and that the title passed | 343 | |
| The deed need not recite that the land was assessed on the commissioner's book | 343 | |
| A recital that the land was returned delinquent for the nonpayment of the taxes is sufficient as a recital of the assessment | 343 | |
| Torts | ||
| See “Admiralty”; “Collision.” | ||
| TOWAGE. | ||
| See, also, “Collision”; “Salvage.” | ||
| The master of the tug is bound to know the sailing qualities of a vessel which he has several times before towed into the harbor, and to know the condition of the harbor; and he is responsible for the manner in which he enters it | 713 | |
| Tug held liable for damages to ship towed stern foremost from pier in East river, and drifting into pier on opposite shore, where the ship's hands failed to catch the line thrown from the tug | 540 | |
| Tug held not liable for collision of tow with dock | 85 | |
| TRADE-MARKS AND TRADENAMES. | ||
| Trade-marks are an entirety, and are incapable of exclusive use at different places by more than one independent proprietor | 605 | |
| The right to a trade-mark is forfeited by its deceptive use to designate a spurious article | 605 | |
| Voluntary relinquishment of the original mark for a new device forfeits the right to the old mark | 605 | |
| Disregard of territorial limits allotted by license and misuse of the trade-mark forfeits the right | 605 | |
| A resemblance sufficient only to deceive ordinary purchasers is sufficient to constitute infringement | 605 | |
| An accounting for past profits will not be decreed where there has been laches in bringing suit, and long acquiescence in the adverse use of the mark by others | 605 | |
| TRESPASS. | ||
| In trespass, any matter done by virtue of a warrant must be specially pleaded | 892 | |
| In a suit for trespass to personal property, plaintiff must show what property was injured, and that defendant participated therein | 190 | |
| In an action of trespass vi et armis, plaintiff cannot recover for any injury done to real property | 190 | |
| TRIAL. | ||
| See, also, “Appeal”; “Continuance”; “Evidence”; “Judgment”; “New Trial”; “Practice”; “Reference”; “Witness.” | ||
| No paper can be read in evidence without leave of the court; and, if the court is equally divided as to its admissibility, it is rejected | 1339 | |
| TROVER AND CONVERSION. | ||
| To establish a conversion, there must be proof of wrongful possession, or of exclusion of the owner's right, or of unauthorized and injurious use, or of wrongful detention after demand | 510 | |
| A jury may, as part of the damages, give interest on the value of property converted. | 1125 | |
| TRUSTS. | ||
| See, also, “Charities”; “Executors and Administrators”; “Guardian and Ward”; “Wills.” | ||
| A person acquiring the legal estate in property as the agent of another, or upon a trust and confidence that he will acquire it for the benefit of another, will be required to account therefor in equity | 645 | |
| Such a trust is not within the statute of frauds, and it need not be manifested by a writing | 645 | |
| An attorney employed to foreclose a mortgage, who purchases at the sale, will be held to be a trustee for the client, at his option, unless it satisfactorily appears that he was in no wise injured or prejudiced thereby | 645 | |
| Lapse of time is no absolute bar to a suit for relief in the case of a constructive trust. | *645 1389 | |
| UNITED STATES. | ||
| Quaere: Whether the United States can compulsorily be made a defendant to a foreclosure bill, where it holds a hen on the property | 1320 | |
| USE AND OCCUPATION. | ||
| Partial eviction does not bar an action for use and occupation | 145 | |
| USURY. | ||
| See, also, “Banks and Banking.” | ||
| A purchase of a bill in the market, like a commodity, at any price, is not usurious. But an unaccepted bill is not so purchased. | 264 | |
| When paper is the basis of exchange, it must be shown as influencing the rate of exchange | 264 | |
| A discount of a bill upon which exchange is charged, to take up a prior bill, is not usurious unless the agreement was made at the discount of the first bill | 264 | |
| Where the rate of exchange charged is only colorable, it is usurious | 264 | |
| In Ohio, usury avoids the contract only for the excess | 264 | |
| Where a statute forbids a corporation taking over a certain amount of interest, all money taken over such amount must be credited to the debtor on the principal | 757 | |
| The New York act of 1850 providing that no corporation shall interpose the defense of usury does not extend to suits against accommodation indorsers for corporations. | 757 | |
| VENDOR AND PURCHASER. | ||
| See, also, “Bankruptcy”; “Boundaries”; “Deed”; “Fraudulent Conveyances”; “Grant”; “Sale”; “Specific Performance.” | ||
| The vendor of land contracted to be sold is a trustee for the purchaser | 167 | |
| Where a contract for the sale of land is void, or cannot be enforced by reason of laches on the part of the vendee the land will descend to the heirs of the vendor | 167 | |
| The registry of a deed or paper not duly or legally recorded is not constructive notice | 326 | |
| A creditor obtaining judgment against the vendor, after the latter has received the purchase money, but before he makes a deed, will be enjoined, at suit of the vendee, from levying on the land | 349 | |
| A material false representation by the vendor or his agent vitiates the sale, though not known to be false when made | 1016 | |
| Where a sale is rescinded after several years, for fraud, each of the several equitable owners is liable to refund only the money he received, and not that received by the others, or paid to an agent since insolvent | 1016 | |
| Fraud practiced by one of several owners, or by one having a bond for a deed from some of the owners, is ground for rescission of the whole sale, where the owners take the benefit of the price obtained by the fraud , | 1016 | |
| A sale will not be rescinded for mistake alone if the party had full opportunity to examine the land, and did examine it | 1016 | |
| That the purchaser examined the land will not prevent a rescission, if falsehood was practiced, whereby he was led to make only a slight and general examination | 1016 | |
| A contract for the sale of land, providing for the right of annulment, on failure of any of the payments, by giving notice and paying the money received into a certain, bank, can be annulled in no other way, except by consent | 167 | |
| WAR. | ||
| See, also, “Prize.” | ||
| No treasury agent could receive after June 30, 1865, any captured or abandoned property, unless theretofore surrendered by Confederate agents or officers | 295 | |
| Property surrendered by the military authorities of the Confederate government could not be released by any state or provost court | 295 | |
| A treasury agent acting under color of the captured and abandoned property act, or under a mistaken sense of duty, cannot be held personally responsible | 295 | |
| The order of the secretary of war, dated May 13, 1863, directing commanders of departments to prohibit the sale of livestock for exportation, and to cause live stock so sold to be appraised and appropriated by the government, was unauthorized and illegal | 1108 | |
| Fowls are not live stock within the meaning of such orders | 1108 | |
| WAREHOUSEMEN. | ||
| The indorsement or assignment of warehouse receipts is regarded as equivalent to the delivery of the article | 325 | |
| The warehouseman is estopped to deny that he has the articles mentioned in his receipt, in an action by an indorsee or assignee, who has purchased the paper in good faith | 325 | |
| Waters and Water Courses. | ||
| See “Navigable Waters.” | ||
| WILLS. | ||
| See, also, “Charities”; “Executors and Administrators.” | ||
| Where a will of personalty is defectively executed, it must appear that testator intended it to operate as his will, or that he was prevented from completing it by being overtaken by sickness or other casualty | 151 | |
| No defect in the execution of a will conveying land can be supplied by parol proof. | 151 | |
| A bequest to the Educational Society of Virginia, an unincorporated association, “for the benefit of the theological students at the Protestant Episcopal Theological Seminary of Virginia, * * * $1,000, the interest only to be annually expended” is void under tie Maryland law | 1283 | |
| “Issue,” in a will penned with great regard to technical words, includes all direct descendants, and is not limited to children. | 1200 | |
| A devise over, if the parties first taking should all die, “without leaving any issue of the body of either of at,” at the death of the last survivor, “or if such issue should all die before attaining the age of 21 years,” is too remote | 1200 | |
| The words, “I will, in the first place, that my just debts be charge,” charge the realty with the payment of debts | 8 1390 | |
| WITNESS. | ||
| See, also, “Bankruptcy”; “Costs”; “Deposition.”' | ||
| One who had sold an interest in an invention, but was to be paid something if it was successful, held disqualified | 843 | |
| An owner of a vessel who has settled with his co-owner may testify against a passenger in a suit for passage money, where his co-owner has released him | 1080 | |
| An indorser of a promissory note is a competent witness for the maker in an action by the indorsee | 1047 | |
| In a suit on a bottomry bond, the master is competent to prove that the supplies for which it was given were furnished and were necessary | 1309 | |
| In a suit for Seaman's wages, the master, made a party, but not served with process, held incompetent | 555 | |
| Mere mistake by a witness, without willful or corrupt falsehood, should not discredit him | 843 | |
| A witness cannot be impeached by proving that at other times he made contradictory statements, unless he be first interrogated as to such statements | 219 | |
| But such rule does not apply where an ex parte deposition was read, of the taking of which no notice was given | 219 | |
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