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17FED.CAS.
17FED.CAS.—86
17FED.CAS.—87
INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
| ABATEMENT AND REVIVAL. | |
| Page | |
| The pendency of a suit in a state court is a good plea in abatement in the federal court. | 1317 |
| The assignee of the complainant cannot file a bill of revivor. His proper course on the death of the original complainant is to file a supplemental bill | 171 |
| ACCOUNT. | |
| In assumpsit, if the credit side of an ac count is taken to charge the person who delivered it, the items in the debit side must be admitted as proved | 821 |
| ACKNOWLEDGMENT. | |
| On a deed of land in Nebraska executed in another state, and not acknowledged before a commissioner for Nebraska, the certifying officer must certify that the execution and acknowledgment is according to the laws of the state in which it is executed | 885 |
| Where the certificate fails to state that the subscribing witness was personally known to the officer taking the acknowledgment, as required by Rev. St. Ill. 1845, p. 107, § 20, it is fatally defective | 747 |
| Defective acknowledgments of deeds may be made good by statute | 694 |
| A notary public is competent to acknowledge and certify a deed of trust, although he is interested as one of the beneficiaries in the trust | 1202 |
| In 1823 the commissioner of public buildings in Washington had power to take acknowledgments of deeds of land | 275 |
| Where the justices of the peace (in Maryland) taking the acknowledgment were of a different county than that in which the land lay, there must be a county clerk's certificate of their official character to entitle the deed to record | 383 |
| 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”; “Wharves.” | |
| Admiralty has jurisdiction over cases of collision upon inland canals | 601 |
| Admiralty has jurisdiction of a libel against a vessel for damages caused by a collision with a floating bath house | 951 |
| A suit against a vessel to recover the penalty imposed for failure to enter imported goods on the ship's manifest, is a civil case of admiralty and maritime jurisdiction | 479 |
| Admiralty has no jurisdiction of a claim for wages of a seaman for the time he was engaged in repairing the vessel, which had been sunk in port and raised again | 548 |
| Admiralty has no jurisdiction of a possessory libel on a dispute between co-owners of a vessel | 761 |
| Admiralty has jurisdiction of cases of general average upon losses at sea | 1082 |
| Admiralty has jurisdiction in rem for damages for personal injuries received in a collision | 3 |
| Under rule 12 of 1845, the admiralty courts have no jurisdiction over suits in personam brought by material men to enforce payment of their claims | 140 |
| Admiralty will not take jurisdiction of a libel in personam for assault committed against a mariner by the officers of the vessel, if the case is of doubtful merits, and must be established by questionable proofs, but will remit libelant to his remedy at common law | 1047 |
| Parties may have in a court of admiralty the same remedies against the proceeds of property subject to its jurisdiction that they are entitled to against the property itself, in whose hands soever the proceeds may be found | 1082 |
| ADVERSE POSSESSION. | |
| See, also, “Ejectment”; “Limitation of Actions”; “Real Property.” | |
| On the forfeiture of land to the state for failure to pay taxes, the adverse character of a possession by a third person ceases, and it cannot be revived | 783 |
| AFFREIGHTMENT. | |
| See, also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Demurrage”; “Shipping.” | |
| Delivery on the wharf is not good with out reasonable notice. Casual knowledge of the vessel's arrival and purpose to discharge at a certain wharf does not dispense with notice | 273 |
| A chartered vessel which springs a leak in a storm, and puts back to the port of departure, and, on the refusal of the charterer to accent the cargo, sells it as unfit to ship, and dangerous to the crew, cannot re cover freight | 490 |
| A temporary retardation and subsequent sale of the cargo by the owner does not deprive the carrier of his right to the freight money | 1043 |
| Where a vessel on the Lakes, late in the season, is laid up by stress of weather, and the cargo is necessarily unloaded, and the owner sells it, though the vessel might have completed the transportation in the spring, she is entitled to full freight | 1043 |
| Where the shipowner is ready to forward the goods, and there is a default by the owner, or he waives farther prosecution 1352 | |
| of the voyage, full freight is recover able | 1185 |
| An acceptance of the cargo at an intermediate port from necessity occasioned by an overwhelming calamity or superior force will not entitle the vessel to freight pro rata itineris | 1185 |
| Pro rata freight only allowed on goods delivered to underwriters, and in the custody of the court, in an intermediate port into which the vessel was carried by salvors | 1185 |
| The right to freight in the case of loss of goods by jettison, salvage, sale as perishable, sale to pay duties or salvage, discussed by Story, J | 1185 |
| The master cannot recover freight on the portion of the cargo ruined by seawater, so as to lose its character, where the quantity is not ascertained | 1026 |
| Damage to cargo raises an inference that it was caused by the carrier's negligence, rather than by perils of the sea | 982 |
| The main deck of a propeller bulwarked entirely around, covered by an upper deck, and specially constructed for cargo, held a proper place to stow oil | 1343 |
| ALTERATION OF INSTRUMENTS. | |
| An alteration of a patent by scratching out the dot over the letter “i” in the name of the grantee held not sufficient to exclude the patent as evidence | 747 |
| AMNESTY. | |
| The crime of being accessory to the murder of the president was not embraced in the amnesty proclamation of 1868 | 954 |
| APPEAL AND ERROR. | |
| There is no appeal to the circuit court from a decree dismissing a libel in rem in admiralty for want of prosecution | 36 |
| An appeal does not lie to the superior court of Arkansas in cases where the sum in controversy is less than $100 | 1032 |
| It is too late to object to an appeal where both parties have treated it as valid | 1242 |
| A district judge sitting in the circuit court may, in a proper case, enlarge the time for filing an appeal in the circuit court | 810 |
| A writ of error is not a supersedeas unless a copy is filed in the clerk's office for the adverse party. (Act 1789, § 23.) | 678 |
| Reasonable diligence should be used in prosecuting an appeal in admiralty from the district to the circuit court | 1146 |
| In the case of sis months' delay to perfect the appeal, the appellee was allowed to notice the cause for a hearing, and was required to take his depositions during the session of the court | 1146 |
| Bond on appeal from a decree for plaintiff held not to cover the amount directed to be paid to the master, and the collection thereof not subject to be stayed by the proceedings for appeal | 1109 |
| On a writ of error to a district court in Iowa, its ruling on a motion to the jurisdiction may be reviewed under Act June 1, 1872, § 5, making the practice of the state courts applicable to the federal courts | 1259 |
| A denial of a motion for a nonsuit is not reviewable on error | 322 |
| A judgment in assumpsit will be reversed where the cause was tried without replication to good pleas in bar | 288 |
| A new trial will not be granted for error in instructions if it be apparent that justice has been done | 476 |
| If, in a prize cause, claimant appeals, and deserts his appeal, the circuit court may affirm the decree below, with costs | 627 |
| ARMY AND NAVY. | |
| A military parole is limited by the duration of the war | 391 |
| The power to discharge from service minors under 18 years of age is vested wholly in the secretary of war. (Act Feb. 24, 1864, § 20; Act July 4, 1864. § 5.) | 1296 |
| A state court or officer cannot release a soldier on habeas corpus when held to service under a claim as an enlisted soldier, under the authority of the United States | 1296 |
| ARREST. | |
| See, also, “Bail”; “Escape”; “Execution”; “Extradition”: “False Imprisonment”; “Malicious Prosecution.” | |
| The protection from arrest given to suitors extends to petitioners under the bankrupt law. (Act 1842.) | 278 |
| The arrest can only be set aside by direct proceedings where the affidavit states sufficient facts to make out a case, though the proof is slight and not entirely satisfactory | 1316 |
| ASSIGNMENT. | |
| To render an assignment valid at law, the subject of the assignment must have an existence, actual or potential, at the time of the assignment A mere possibility is not assignable. Otherwise in equity | 527 |
| An assignor of a bond is not estopped to deny its validity at law | 595 |
| ASSOCIATIONS. | |
| A community cannot interfere with a member's natural rights under the law further than he has agreed to allow it, irrespective of usage long established | 1139 |
| On the wrongful expulsion of a member of an association having an absolute community of property with right of survivor ship, held, that he should have a decree for his numerical proportion of the whole cap ital stock | 1139 |
| ASSUMPSIT. | |
| A promise by a passenger, who had left a steamer injured in a collision, to its officers and crew, who stayed about the wreck in small boats, to reward them for saving his effects, is not legally binding | 161 |
| ATTACHMENT. | |
| See, also, “Bankruptcy”; “Execution”; “Garnishment”; “Judgment”; “Writs and Notice of Suits.” | |
| In order to obtain an attachment under Act Md. 1795, c. 56, the affidavit must be positive as to the amount of the debt | 998 |
| Affidavit held insufficient where the debt arose in part upon a note, and the note was not produced | 403 |
| A sale of land of an absent defendant, under an attachment, is void where the return shows that copy of process was posted on the premises, but does not show that there was no occupant with whom it could have been left | 208 1353 |
| A valid attachment of property within the jurisdiction gives a state court power to render judgment that an absent defend ant, not otherwise served, is indebted to plaintiff, and to enforce payment by the sale of the property | 268 |
| In an action for malicious attachment, the official return of the attachment is not conclusive, but may be contradicted by parol | 907 |
| The attaching creditor, by giving bond and directing the sheriff to sell, ratifies the act of his attorney in directing the attachment | 1052 |
| Judgment against a sheriff for property wrongfully attached, without full satisfaction, is no bar to an action of trespass against the attaching creditor. Partial satisfaction of such judgment goes to reduction of damages | 1052 |
| AVERAGE. | |
| Freight on cargo jettisoned, where the vessel was subsequently abandoned, and was saved by salvors, and sold in admiralty proceedings, held should be allowed as part of the general average to be borne by ship, cargo, and freight saved | 1185 |
| Goods laden on deck with consent of the shipper under a bill of lading excepting “dangers of navigation,” and necessarily jettisoned, do not make a case for general average | 434 |
| The fact that the shipment on deck was sought by the master for the purpose of trimming his vessel is not material | 434 |
| Freight pro rata earned must contribute to the salvage with ship and cargo | 1185 |
| Where the cargo is sold in a port of refuge to obtain funds for repairing the vessel, there is no right of contribution | 1116 |
| In case of total loss of the ship voluntarily stranded for the safety of the cargo, all the property exposed to the risk must contribute, and be contributed for at its value, when the sacrifice was made | 1082, 1088 |
| As between the parties to a policy, the valuation of the vessel agreed on therein may be taken on general average as the value of the property, at risk; but, as against owners of the cargo, the value must be established in the ordinary way | 1088 |
| Policies of insurance do not, of them selves, supply proof of the value of ship, cargo, or freight, on general average. But the adjusters can receive the policies as auxiliary evidence of those values | 1082 |
| The valuation of freight in the policy may be received as prima facie evidence of its value in favor, of and against the shipowner, on general average | 1088 |
| Invoices and bills of lading are competent evidence of the value of the cargo at the place of its purchase and shipment | 1082, 1088 |
| Where goods are sold at the place of disaster, the adjustment of average will be governed by such price; but, when no sale is made at such place, the value at the place of shipment controls | 1082 |
| Freight should be estimated at its gross value, both when contributed to and when contributory | 1088 |
| In the adjustment and settling of general average, the contributory interest of the ship is to be estimated at her value at her port of departure, making reasonable allowance for wear and tear on the voyage, up to the time of the disaster | 1088 |
| BAIL. | |
| Sufficiency of affidavit to hold to bail | 365 |
| An affidavit to hold to bail must be positive as to the indebtment. The opinion or belief of the affiant is insufficient | 1316 |
| Bail will not be exonerated upon scire facias, by the discharge of the principal under the insolvent act (2 Stat. 237), unless the discharge was before the appearance day of the first scire facias returned executed, or of the second returned nihil | 998 |
| BANKRUPTCY. | |
| See, also, “Assignment for Benefit of Creditors”; “Insolvency.” | |
| Operation, and effect of bankruptcy laws, and of proceedings thereunder. | |
| The bankrupt act is remedial, and should be construed with a view to effect its objects, and promote justice between a debt or and his creditors | 971 |
| In questions under the bankrupt act, the federal and state courts are not independent; the former are superior | 293 |
| Proceedings in the state court for the appointment of a receiver of an insolvent corporation will not prevent the bankrupt court from subsequently taking jurisdiction on petition in bankruptcy | 41 |
| Act Feb. 13, 1873, does not deprive the bankrupt court of jurisdiction over a corporation of which a receiver has been appointed by a state court, but only saves acts done by the state court and the receiver prior to filing the petition | 1223 |
| A certificate of a clerk of the federal court to a copy of the deed of assignment in bankruptcy is sufficient to admit it to probate without complying with the state laws in reference to such proof | 1264 |
| Bankruptcy proceedings do not constitute an integral record. A copy of each proceeding may be authenticated separately, and is competent, presumptive evidence | 259 |
| A judgment in a state court against a bankrupt, which has been duly appealed from by him, is not a final judgment (Act 1867, § 21), and the creditor cannot proceed therein after petition filed | 172 |
| A motion to compel the bankrupt to furnish new security on such appeal is with in the prohibition of section 21 | 172 |
| Charges of fraud in opposition to a discharge under the state poor debtor law, though filed after the bankruptcy of the debtor, do not make a new suit under section 21, which will enable the bankruptcy court to interfere | 454, 455 |
| An arrest on execution before the arrested debtor's petition in bankruptcy is not avoided by the adjudication in bankruptcy, nor will proceedings thereon be stayed under section 21 | 454, 455 |
| An order of arrest by a state court, at the instance of a creditor whose debt is alleged to have been fraudulently contract ed, cannot be vacated by the bankruptcy court; but the state court's proceedings may be stayed until the question of discharge is determined | 279 |
| A suit in the state court to foreclose a mortgage given by the bankrupt, commenced after the adjudication, without permission of the bankruptcy court, is not a contempt of its authority, and the proceedings are not void | 579 |
| Suits in a state court against the marshal and assignee, as trespassers in taking property found to have been transferred by way of preference, will be enjoined | 293 |
| A motion in bankruptcy proceedings which has been denied without prejudice cannot be repeated upon the same facts, or with the addition of irrelevant facts | 902 |
| Jurisdiction of courts. | |
| The circuit and district courts have full jurisdiction in equity to make a full settlement and distribution of the bankrupt's estate. (Act 1841.) | 496 1354 |
| The district court of another district than that where the bankruptcy proceedings are pending has jurisdiction at the suit of the assignee to protect the property of the bankrupt within its jurisdiction | 686 |
| Residence of creditors within the city where proceedings are had does not en title them to any more special notice than those that live at a distance | 785 |
| Congress has no right to require that the state courts shall entertain suits for the objects and purposes to be carried into effect by the bankrupt act | 496 |
| It seems that state courts are not deprived of jurisdiction in ordinary common-law and equity suits simply because brought by an assignee in bankruptcy | 496 |
| The creditors must bring the proceedings to a close with extraordinary promptness. (Act April 4, 1800.) | 785 |
| A district judge has no jurisdiction in bankruptcy, virtute officiorum, but only from the statutes | 785 |
| A district judge has power to supersede a commission of bankruptcy under Act April 4, 1800, without express grant of such power therein | 785 |
| A supersedeas may issue after a bankrupt has obtained his certificate | 785 |
| Effect of a supersedeas in bankruptcy proceedings under Act April 4, 1800 | 785 |
| A supersedeas of a commission in bankruptcy will not be revoked to allow petitioner to prove debts against which there is a prima facie presumption of payment, unless it appear, that he has a reasonable expectation of rebutting such presumption | 785 |
| Register—Power and duties. | |
| The register may allow amendments to the schedules attached to the petition where they are not contested | 745 |
| Commencement of proceedings—Voluntary bankruptcy. | |
| One or more partners may file their petition for adjudication against the firm without making the others parties, but notice must be given to them | 491, 661 |
| Persons cannot join in a petition with a view to separate decrees; and, where a petition is disallowed conjointly, it cannot avail petitioners individually. (Act 1841.) | 770 |
| An attaching creditor may intervene to oppose an adjudication, in involuntary proceedings, on the ground of fraud and collusion | 4 |
| The failure of petitioners to subscribe the affidavit to the petition is an incurable defect | 684 |
| An allegation of a previous general assignment for creditors held not defective in not showing the assignment or the property undisposed of, where it is alleged that the property was insufficient to pay debts | 903 |
| A rule of court requiring the petition to state the consideration or cause of indebtedness does not apply to a debt converted into a judgment | 903 |
| ——Involuntary bankruptcy. | |
| A fire insurance company may be a bankrupt, under the act of 1867 | 41 |
| A petition may be maintained by a creditor who became such after the commission of the act of bankruptcy complained of | 971 |
| A debt founded upon a note made prior to the emancipation proclamation of which slaves were the consideration will support a petition | 328 |
| The district court has power to order the production of books and papers at the summary hearing on the return day of the order to show cause | 8 |
| A motion to set aside the debtor's default on the ground that petitioner's debt, being based upon the sale of intoxicating liquor, was not provable, held too late | 1301 |
| The proceedings will be dismissed before the choice of an assignee when this is de sired by the petitioning creditor, the bankrupt, and all creditors who have proved their debts | 295 |
| A motion by the petitioning creditor, on receiving payment, to dismiss the petition, will be denied where another creditor has intervened and prays that the cause may proceed | 9 |
| The bankrupt cannot acquire a right to have involuntary proceedings dismissed by voluntarily surrendering himself to a sheriff, who has an order for his arrest, but with instructions not to proceed under it | 67 |
| The allegation of the commission of the acts of bankruptcy “within six months next preceding” the date of the petition is sufficient, without mention of the particular day | 971 |
| The allegations as to the existence of the debt or the commission of the acts of bankruptcy need not be made upon the personal knowledge of petitioner | 971 |
| An amended petition cannot include a note indorsed by the debtor which did not fall due until after the original petition was filed | 846 |
| Where the overruling of a demurrer was without prejudice to an application for leave to answer on showing satisfactory cause, an application, promptly and duly made, where the proposed answer, duly verified, contained valid defenses, should be granted | 846 |
| Acts of bankruptcy. | |
| Nonpayment of commercial paper is not an act of bankruptcy where the debtor has reasonable ground to believe that he is not liable upon it | 989 |
| A note payable in money is commercial paper, though, at the time and place of its execution, Confederate currency was the only medium of exchange | 12 |
| Stopping payment of a note before the passage of the bankrupt act, and not resuming afterwards, is not an act of bankruptcy | 12 |
| A farmer is not prima facie insolvent be cause unable to pay his debts in the ordinary course of business, and the burden of proof of insolvency is on petitioner | 328 |
| The transfer of firm property from one member of a solvent firm to another is not an act of bankruptcy, within section. 39. (Act 1867.) | 989 |
| Where there is no fraudulent intention, a dealer may, though insolvent, continue to sell his stock at retail, and endeavor to effect if possible, a compromise with his creditors | *986 |
| A debtor who accepts a certain sum as a compromise, and is not misled as to payments to others, cannot sustain a petition alleging a fraudulent preference of those who received a greater percentage | *986 |
| The act of an agent of a creditor in exceeding his authority in accepting a com promise cannot be charged as a fraud against the debtor | *986 |
| To constitute a transfer to a creditor a fraudulent preference, on the ground that the debtor was insolvent, he must have known himself so to be, and have intended to give a preference | 328 |
| Even a fair general assignment for benefit of creditors is an act of bankruptcy. So, also, is an assignment, invalid by the local law, which operates to give a preference | 4 |
| The appointment of a receiver of the property of a corporation, by a state court, is an act of bankruptcy | 41 1355 |
| Payment by a corporation, actually in solvent, of rent necessary to preserve a valuable lease, is an act of bankruptcy, though judicious in itself and made in good faith | 41 |
| Schedule. | |
| Schedules not amended, as of course, by adding other names to the list of creditors, after the warrant, and after the close of the business of the first meeting | 769 |
| Procedure on allowance of amendments to schedules | 745 |
| Adjudication. | |
| An adjudication against a partnership binds the firm, property, though a dormant partner was not made a party | 174 |
| A default and an adjudication in involuntary proceedings will be set aside on petition of the bankrupt showing that he was non compos mentis at the time the alleged debts were contracted and the proceedings instituted | 1030 |
| Meeting: of creditors: Notice. | |
| Notice to creditors that a meeting will be held at a specified time and place for the purposes named in section 27, Act 1867, and that a final dividend will be declared, is sufficient to authorize such meeting to make final disposition of the estate | 43 |
| The notice of the second meeting of creditors (section 27) and the order (Form No. 28) is to be sent to all known creditors, whether they have proved their debts or not | 393 |
| Creditors' meetings are properly guided by the rules and usages of parliamentary bodies | 43 |
| The final meeting of creditors may, by vote, dispense with the reading and exhibition of the assignee's accounts and vouchers, where the same have been on file for a reasonable time | 43 |
| Creditors' meetings have no power over the accounts or fees of the assignee, but, if submitted to them by the register, their action thereon will be sanctioned by the court, unless there are grave reasons to the contrary | 43 |
| Assignee—Election, appointment, and removal. | |
| An assignee will be removed on petition for neglecting to take proper measures to secure the bankrupt's property, and for al lowing it to be sold for taxes | 848 |
| ——Rights, duties, and liabilities. | |
| The assignee is entitled to the money on a judgment recovered by the bankrupt or a third person in his right for a debt or claim due the bankrupt, and belonging to his assignee: and a court of equity will prevent its diversion | 686 |
| A petition to compel payment of such judgment to the assignee will be granted only on condition of payment of taxable costs and charges, and reasonable expenses of obtaining the judgment | 686 |
| It is the right and duty of the assignee to contest the validity of any mortgage which operates as a preference | 231 |
| The assignee of a corporation may make assessments on unpaid shares the same as though ordered by the corporation before bankruptcy | 1118 |
| The assignee is not bound to search for an interest of the bankrupt in the estate of his ancestors not scheduled or indicated to the assignee or the creditors | 902 |
| The assignee may set up the defense of usury against a creditor of the estate | 667 |
| The assignee, except in cases of fraud takes only such rights and interests as the bankrupt himself had, and could himself claim and assert at the time of the bankruptcy, and subject to all equities affecting him | 527 |
| An assignee has the rights of a judgment creditor as against a chattel mortgage not properly recorded | 322 |
| Property of bankrupt—What constitutes. | |
| The right to recover back usurious interest paid given by the Vermont law is a “right of property” which passes to the assignee | 686 |
| A deed of trust delivered to the trustee, with power to record it, when he deems proper, is valid as against the grantor's assignee, although not recorded until after the bankruptcy | 1202 |
| The assignee has no right to the proceeds of a policy taken out by the wife of the bankrupt on her life for the benefit of the husband, where she pays the premiums out of her separate estate, and dies after the adjudication in bankruptcy | 1062 |
| As to property subsequently acquired which is matter of record, the creditors must move within a reasonable time to have the same shown. (Act 1800.) | 785 |
| Whether property subsequently discovered will pass under a general devise by a certified bankrupt, query | 785 |
| ——Custody and control: Injunction: Warrant. | |
| A finding by a jury that the debtor committed an act of bankruptcy in transferring certain property to a creditor authorizes the marshal to take possession thereof | 293 |
| An assessment by the court on unpaid subscriptions to the stock of a bankrupt corporation is conclusive, and not impeachable collaterally | 259 |
| Injunctions and warrants may be allow ed and issued under section 40 (Act 1867), without notice to the adverse party | 971 |
| The warrant provided for in section 40 may issue against the person and property of the debtor, or either of them | 971 |
| An injunction granted under section 40 does not extend beyond the adjudication, and there can be no violation of the injunction thereafter | 889 |
| An order to show cause is not a preliminary requisite to the issuing of an injunction and warrant | 971 |
| It is no ground for discharging the war rant or vacating the order for its allowance that the marshal took property not be longing to the debtor | 971 |
| On a motion to dissolve an injunction against third persons, such persons cannot be heard to object to the sufficiency of the petition, or the proof of debt or acts of bankruptcy | 971 |
| The court cannot sell property of the debtor as perishable, pending trial by jury of the issue on the acts of bankruptcy, unless it is in possession of the messenger | 240 |
| Injunctions against execution sales of the debtor's property will not be dissolved on motion when such sales constitute the alleged acts of bankruptcy, and the debtor has taken issue thereon and demanded jury trial | 240 |
| That property is perishable is no ground for enjoining execution sales thereof prior to adjudication | 240 |
| ——Exemptions. | |
| A homestead right under a judgment appealed from will be respected by the bankruptcy court where, under the local law, the appeal suspends, but does not vacate the judgment | 886 |
| ——Liens. | |
| Taxes and assessments levied upon in cumbered property before bankruptcy proceedings; and water taxes while the property is in the assignee's possession, must be paid by him | 576, 579 1356 |
| A chattel mortgage embracing subsequently acquired property, and possession taken thereunder before petition filed, held to constitute a lien on such property, protected by section 2 (Act 1841.) | 527 |
| An assignee cannot recover the value of mortgaged chattels where the mortgagee took possession before the bankruptcy, although the mortgage was invalid against creditors because not properly recorded | 322 |
| A bank, under a by-law prohibiting a transfer of stock by one indebted thereto, has a lien on stock to secure notes and general indebtedness of a stockholder | 831 |
| Persons holding mechanics' liens on property of the bankrupt are not bound to renew or continue them after a sale by the bankruptcy court, free of liens | 723 |
| Sufficiency of evidence to show fraud or collusion in the obtaining of a judgment under which execution was levied before the commencement of the bankruptcy proceedings | 917 |
| The dissolution of an attachment by proceedings in bankruptcy does not enlarge the liens of judgments or change their place | 1312 |
| ——Sale. | |
| When the interests of all parties seem to demand it, the court may direct the assignee to sell the realty of the bankrupt free from all liens, except the existing and recorded mortgages | 1222 |
| The provision of Rev. St § 5075, that mortgaged property shall be sold in such manner as the bankruptcy court shall direct, is for the benefit of the unsecured creditors represented by the assignee, and he may waive it | 576, 579 |
| The district court has jurisdiction to summarily set aside a conveyance by the assignee, where made improvidently, irregularly, or without due authority, where rights of third persons have not intervened | 901 |
| A petition to have the amount paid on such a contract refunded denied where the contract was not delivered up to be canceled, and it did not appear that it was made in good faith | 904 |
| Proof of debts—What is provable. | |
| A claim for the price of spirituous liquors lawfully sold in New York to a citizen of Maine who intended them for sale in Maine, in violation of law, is provable in bankruptcy in Maine, though it could not be recovered in the courts of the state | 1041 |
| Where a surviving partner converts the property of the deceased partner to his own use, the administrators of the latter may prove a claim therefor against the estate of the former in bankruptcy | 395 |
| A surety of the bankrupt whose individual note is expressly received in payment may prove his claim. (Act 1867, § 19.) | 781 |
| A joint and several obligation by partners under seal is provable as a several obligation against one of the parties | 292 |
| A creditor who surrenders a preference received contrary to section 39 (Act 1867) may prove his debt | 619 |
| One who has in good faith bought a debt against the bankrupt after the commencement of the proceedings may prove it | 1010 |
| Where an agent converted negotiable paper, and procured its indorsement by his firm for whose use it was discounted, held, that both the original owner of the paper and the bank which discounted it might prove claims in bankrupcty against the firm | 850 |
| The proceeds of an accommodation note made by the agent of a company went to the use of his bankrupt firm. An indorser paid the same, proved the claim in bankruptcy, and recovered judgment against the company. Held, that the company could not also prove the claim | 850 |
| ——Secured debts. | |
| Holders of claims secured by a mortgage given to the surety, who prove their claims in full, waive their security | 783 |
| A creditor holding a trust deed to an other as security must prove his debt as a secured debt, and obtain permission of the court to sell the property | 1275 |
| A bank having a lien under its by-laws on stock for indebtedness of a stockholder should prove its debt as secured, and obtain leave to sell the stock to apply thereon | 831 |
| By selling mortgaged property without notice to the assignee, a creditor precludes himself from proving for a balance | 297 |
| The bankruptcy court may allow to be proved as a debt a deficiency arising on a sale under a decree of foreclosure of a mortgage in a suit in a state court commenced after adjudication in bankruptcy without permission of the bankruptcy court | 576, 579 |
| ——Procedure. | |
| Proof of debt is a proceeding in rem, not an action against the bankrupt or his guardian, executor, or administrator | 80 |
| The court cannot refuse to receive a proof which appears on its face to have been taken by a proper officer, and to be correct in form and substance | 75 |
| Proofs may be taken by a register or a commissioner whether the creditor is a resident or a nonresident, and whether the commissioner holds his office in the same town with the register or not | 75 |
| Proofs of debt taken before the attorney of the creditor are not admissible | 1268 |
| Proof of debt taken before a notary must be authenticated by his official seal, which must be sufficient to prove itself | 1268 |
| A creditor is a competent witness to prove a contract under which his claim arose, though the bankrupt has since died | 80 |
| That proofs presented at the first meeting of creditors are in the names of per sons not named in the schedule raises a doubt of their validity, and requires postponement until after election of the assignee | 424 |
| The fact that the president of a corporation had ceased to be a stockholder can not be raised as an objection to proof of a claim by him in favor of the corporation against his estate in bankruptcy | 746 |
| The right of a corporation to continue its existence cannot be determined on the re examination by the register of its claim against the estate of its bankrupt president | 746 |
| The receiver of the property of a creditor may prove his debt, supported by the deposition required by general order No. 34 | 397 |
| A member of a bankrupt firm cannot rep resent claims against the estate | 534 |
| A person may appear as counsel for a creditor who has previously appeared as counsel for the bankrupt | 746 |
| A creditor may correct clerical errors in his proof of claim at any time before final dividend | 1131 |
| Application to amend proof of debt after a delay of five months, granted | 620 |
| Application to amend proof of claims on two notes so as to show that a new note had been given in settlement, denied, as a new claim may be proved on the new note | 622 |
| ——Allowance or rejection of claim. | |
| Receiving and filing a proof confers jurisdiction over the claim, but concludes nothing, and the court may still revise, correct, or reject it | 75 1357 |
| Proof of a claim as indorser upon a note made by the bankrupt will be disallowed where it appears that, after the adjudication of bankruptcy, a new note had been given, and the first note taken up | 621 |
| The register has no power to expunge or diminish the claim of a creditor if the creditor objects, but must require the par ties to form an issue to be certified to the court (General Order No. 34.) | 959 |
| The district court has power upon petition of a contesting creditor to reverse the decision of an assignee rejecting his claim | 534 |
| An order of the district court for the payment of a claim, made without notice to the assignee, will be reversed to allow him to contest the claim | 534 |
| By proving their debts, creditors waive all right of action against the bankrupt in other courts, and such suits thereafter commenced will be enjoined | 249 |
| Payment of debts: Priority: Dividends. | |
| The preference of the United States, and the right of preference for satisfaction of debts due the United States, are excepted from the general operation of the bankrupt law | 905 |
| A surety who pays bonds for customs duties has a preference over other creditors. (Act March 2, 1799, § 65.) | 905 |
| Depositors who became such after suspension of payments by a bank under an advertisement by the bank to keep the old and new accounts separate held not entitled to preference on its subsequent bankruptcy | 1075 |
| The trade assets of a partner, who after formal dissolution continues to carry on business under the firm name, with the consent of his copartner, should be treated as joint assets | 852 |
| Where a partner carries on the business with the consent of the administrators of the deceased partner, there is no priority of payment between debts contracted before and those contracted after the death of the partner | 395 |
| Where a continuing partner has so mingled the new stock with the old that they cannot be separated, the entire stock will be considered his individual assets on his bankruptcy | 618 |
| Where partners file separate petitions, the firm creditors must be postponed to the separate creditors in the distribution of the separate estate, whether there are joint as sets or not | 852 |
| A claim founded upon a note given under the terms of a composition agreement will not be postponed to new claims in subsequent bankruptcy proceedings | 131 |
| The court has no power to discriminate between different classes of debts of the same legal character. (Rev. St, § 4972.) | 131 |
| At the second meeting of creditors when due notice has been given, the whole fund in the assignee's hands, less necessary expenses, may be distributed | 393 |
| A debt not proved until after order of distribution and designation of the day for making the dividend cannot share therein. | 298 |
| Costs: Fees: Disbursements. | |
| No fees are taxable as costs, and entitled to priority of payment, under section 28, Act 1867, to notaries for taking proofs of debt | 1268 |
| The assignee cannot be allowed any thing in addition to disbursements and the commissions provided for in Rev. St. § 5100, except for services, and at the rates set forth in general order No. 30 of April 12, 1875 | 958 |
| The register has no authority to allow extra compensation to the assignee, even after a vote by a creditors' meeting | 43 |
| Attorney for bankrupt allowed for his services on approval of his bill by the assignee, and certificate of the register that he had saved the estate considerable expense | 617 |
| Petitioning creditors may, on motion, be reimbursed their reasonable expenses in procuring the adjudication of bankruptcy | 537 |
| An assignee taking charge of a stock of goods in a store occupied by the bankrupt under a verbal lease held to pay rent only at the contract rate, and for the time he actually used the store | 80 |
| Where the marshal took possession of the bankrupt's goods in a rented store, held, that the landlord was entitled only to reasonable compensation for use and occupation, though he had demanded rent of the marshal, and asked him to vacate | 229 |
| Discharge—Proceedings to obtain. | |
| When a majority in number and value of the aggregate of both partnership and individual creditors who have proved their debts assent, a discharge should be granted, though such majority of either class do not assent | 779 |
| ——Proceedings in opposition. | |
| A creditor whose debt is provable may oppose the discharge of a bankrupt, al though it has not been proved | 1010 |
| A specification charging willful false swearing in the bankrupt's examination must be proved beyond a reasonable doubt. Evidence of verbal admissions is not sufficient | 663 |
| A specification in opposition that the bankrupt concealed the title to land is not sustained by proof of the omission of an equity of redemption from his schedule | 663 |
| On motion for leave to take testimony, the court will not pass upon the question whether the secret possession of property fraudulently assigned before the bankrupt act would amount to a fraud under section 29 | 661 |
| ——Acts barring. | |
| The discharge is not prevented by transactions prior to the act | 663 |
| A stockbroker who is not a member of an exchange, and conducts business exclusively through other brokers, is not a merchant or tradesman required to keep books of account | 901 |
| A fraudulent preference will prevent a discharge | 752 |
| A conveyance made without concealment by the bankrupt to his wife more than 10 years before the bankrupt act will not prevent a discharge, unless it appear that the property is held on a secret trust for him | 1010 |
| No act done in composition proceedings, though of the description of the offense mentioned in Rev. St. § 5110, cl. 8, can be set up against the discharge | 785 |
| The omission from the schedule, of the names of creditors who did not intend to take dividends with trade creditors will not bar a discharge | 1275 |
| The absence of a certain note from the schedule held no ground of refusing a discharge, where it was doubtful if the assignee had any interest therein, and there was no concealment | 1010 |
| ——Scope and effect. | |
| A discharge under the terms of a composition agreement, is a discharge by operation of law, and an indebtedness thus discharged, is a sufficient consideration to support a new promise to pay | 131 |
| Prohibited or fraudulent transfers. | |
| A mortgage given to secure a prior loan by an embarrassed debtor, three months before his assignment, where there is no 1358 | |
| reason to suppose that the debtor will not meet his liabilities, held not a fraudulent preference | 1171 |
| A prior agreement to give security, to support a mortgage, must have been sufficiently definite and specific to have been enforceable in equity | 1171 |
| A mortgage given for a loan whose execution the lender has unlawfully delayed stands as if executed at the time agreed | 624 |
| A mortgage given to secure a loan made in good faith to one known to be insolvent is valid. (Act June 22, 1874, § 11.) | 624 |
| A deed of property executed in pursuance of a decree of a state court by the bankrupt, who had misappropriated trust funds, which had been finally invested in such property, is not avoided by his bankruptcy | 1097 |
| The pendency of proceedings in bankruptcy is sufficient constructive notice to all grantees of property proceeding from the bankrupt | 854 |
| A mortgage given by an insolvent is void if the mortgagee has reasonable cause to believe in the insolvency | 58 |
| A mortgage given to raise money with which to prefer a creditor is within clause 2 of section 35 of the act of 1867 | 1 |
| A mortgage given by a retailer on his stock of goods, within four months of bankruptcy, to obtain money with which to prefer a creditor, is void as against the assignee if the mortgagee could, by inquiry, have discovered the purpose | 1 |
| A mortgage of a stock in trade and of nearly all of the real estate of the debtor on the same day that a petition in bankruptcy was verified held made in contemplation of bankruptcy | 854 |
| A payment to a creditor is not fraudulent unless the debtor was insolvent, and intend ed to prefer the creditor | 752 |
| The intent to prefer is to be proven as a fact by direct evidence, or as the necessary and certain consequence of other facts clearly proved | 752 |
| Insolvency is a present inability to pay debts when due, even when there is surplus property more than enough to pay them at some future time | 752 |
| A retransfer of property on default in payment of the purchase price, which was greatly less than the value, held invalid | 506 |
| An assignment by an insolvent for benefit of certain creditors held void where the assignee had good reason to believe that the assignor was insolvent, and contemplated bankruptcy | 244 |
| Suits and proceedings in relation to the estate. | |
| The assignee, representing the creditors, may sue to set aside any act of the bankrupt which under the general law is in whole or in part void or voidable as against creditors | 506 |
| A sheriff who levies an execution upon and sells property of the bankrupt after petition held is liable to the assignee for the Proceeds, though he pay them over to the creditor before receiving notice of the bankruptcy | 345 |
| The fact that the sheriff had previously seized the property, and held it, or its proceeds, under an attachment, will make no difference in the rule to be applied | 345 |
| An objection by the assignee to a contract made by the bankrupt corporation with one of its officers will not be entertained in a court of equity, unless he offers to return the consideration received | 318 |
| It is no defense to an action by an assignee to recover a debt due the bankrupt that said debt has been claimed by the bankrupt as a set-off in a pending suit | 314 |
| The two-years limitation applies to suits by the assignees to collect debts and assets | 496 |
| An action by the assignee of a bankrupt bank, to recover counsel fees paid, without authority, by third persons acting as liquidators under a state law, is barred in two years | 424 |
| In an action by the assignee of a corporation to collect unpaid subscriptions to stock, evidence of misrepresentations by an agent of the corporation at the time of subscription, is inadmissible | 259 |
| Review. | |
| Proceedings for review instituted nearly five months after the discharge was granted held unreasonably delayed, where the bankrupt, on the faith of the discharge, aided by friends, had resumed his former business | 1040 |
| A proceeding in the district court to have proof of debt rejected, under Rev. St. § 5081, held appealable to the circuit court, under section 4980 | 810 |
| Time for filing such appeal, proceedings to perfect the same, and motion to dismiss for irregularities | 810 |
| On review the decision of the district court on a question of fact will not be reversed unless it clearly appears that the court was in error | 659 |
| Arrangement with creditors: Composition. | |
| Creditors who join a composition cannot complain of a payment to one of their number to induce him to join out of a fund reserved, and not included in the schedule | 1229 |
| The bankruptcy court cannot enjoin the enforcement of a judgment of the state court as being for a debt proved in a com position proceeding | 1269 |
| BANKS AND BANKING. | |
| No action can be maintained on notes of an association issued in violation of law, and the issuance and circulation of which is made subject to a penalty by statute | 403 |
| A bank which, in the absence of instructions, surrenders to consignees bills of lading attached to drafts, on the mere acceptance of the drafts, is liable for a resulting loss | 52 |
| A bank receiving a sight draft from another bank, with directions to return without protest if not accepted, held, liable to the former bank where there was delay which it did not explain, during which the former bank paid the amount to the drawer on the faith of a letter from the drawee, stating that he had paid the draft | 38 |
| The cashier of a national bank in Boston: held to have no authority to certify checks, either by usage or otherwise | *54 |
| A person who allows a transfer of national bank shares to be made to him upon the bank's books, though such transfer is made solely as security, succeeds to the liability of the prior holder | 690 |
| The private banking institution known by the name of the Union Bank of Alexandria had not, before it obtained its charter, any specific lien on the stock of its stockholders | 1266 |
| A national bank may take from a customer, as collateral security, the note and mortgage of a third person, and may foreclose the same if the borrower becomes insolvent, and the personal security fails | 57 |
| A national bank, being without authority to purchase or hold its own shares, cannot, by a purchase and transfer, vest title in another | 250 1359 |
| BILLS, NOTES, AND CHECKS. | |
| What law governs. | |
| The indorsement of a note is a new, distinct contract, which is governed by the law of the place where it is made, without regard to the law of the place where the note was made | 907 |
| The indorsement is considered to have been made in the state in which the instrument is delivered to the indorsee, though it was written in another state | 907 |
| By the law of Indiana, ordinary promissory notes are not governed by the law merchant | 907 |
| Acceptance. | |
| A bill of exchange may be accepted by the drawer's writing the word “excepted” upon it | 314 |
| An acceptance takes effect from the day that it is actually made, and does not relate back to the day of presentation | 494 |
| An election by the holder to consider what passed on presentation of a bill as a nonacceptance is binding on him, as against other parties | 494 |
| Negotiability. | |
| The indorsee of a promissory note not payable to order, but expressed to be “negotiable at” a certain bank, may maintain an action against the maker in his own name | 956 |
| Indorsement and transfer. | |
| Knowledge that a note was accommodation paper will not prevent one who took the same in payment of an overdue note, or as security for a subsisting debt, from re covering thereon | 583 |
| An indorsee in good faith of a note wrongfully diverted and transferred as collateral security for a precedent debt is not affected by equities existing between the original parties | 1208 |
| Demand: Notice: Protest. | |
| On a bill payable a certain number of days after sight, the day of acceptance is excluded, and three days, of grace added | 494 |
| Where the drawer of a bill, after it is drawn, gives the drawee notice not to pay it, presentation for acceptance and payment is waived | 1273 |
| Demand of payment on the 5th of July of a note due on the 1st—4th of July is too late to charge the indorser, and the insolvency of the maker will not excuse the delay | 1267 |
| A demand of payment on the third day of grace, after bank hours, and notice to the indorser and protest on the same day, are not too soon, if the note is in bank for collection, and the maker has been notified thereof; such being the usage of the banks | 998 |
| Notice to the indorser is necessary unless he knew the maker to be insolvent at the time of the indorsement | 817 |
| Where the parties live within two miles of each other, nine days' delay to give notice is fatal | 817 |
| The protest of a foreign bill is sufficient if made in conformity to the law of the place where the dishonor occurred | 1273 |
| Release or discharge of indorser. | |
| The indorser is discharged where the indorsee gives time to the maker, either to pay the note or the mortgage securing it | 762 |
| A subsequent promise by an indorser to pay, made with full knowledge of his discharge, will bind him | 817 |
| In Illinois the indorsee of a promissory note, the maker of which has been adjudicated bankrupt, may proceed at once against the indorser | 1202 |
| In Indiana, on all other instruments save those given to banks, the maker must be prosecuted to insolvency, before he can have recourse to his indorser | 762 |
| In Pennsylvania the assignee of a note not under seal, containing a warrant to confess judgment, may sue in his own name | 522 |
| No particular form of assignment is necessary. It is sufficient that the intent to assign appear | 522 |
| A payee or indorsee of a bill in possession has a right to strike out subsequent indorsements, and recover against the drawee upon the special count, or give such bill in evidence under the money counts | 1273 |
| In an action by the indorsee of a promissory note against the maker, plaintiff need not produce written evidence of the authority of the indorser's agent to indorse | 341 |
| The mistake of arbitrators in making an award is not available as a defense to an action by the indorsee against the acceptor of a bill of exchange drawn for the amount of the award | 314 |
| BILLS OF LADING. | |
| See, also, “Admiralty”: “Affreightment”; “Carriers”; “Demurrage”; “Shipping.” | |
| Pressure of one part of the cargo upon an other is not a peril of the sea | 982 |
| Damage by vermin during the voyage is not within the exception of perils of the sea or dangers or accidents of navigation. (Affirming Case No. 17,461.) | 288 |
| Damage from humidity of the hold, to soda shipped by an iron steamer from Liverpool to New Orleans, and transported through the Gulf in the warm weather of early spring, held to be within the exceptions of heat and sweating | 7 |
| The exemption of damage resulting from leakage or breakage or from stowage, how ever such damage may be caused, will not exempt from loss by negligence | 1335 |
| The recitals, “shipped in good order and condition”; “quality, condition, and contents unknown”; “not accountable for breakage,”—are only evidence of external condition, and the shipper must show that internal injuries were caused by the negligence of the carrier | 725 |
| The memorandum that casks of plumbago were loose when shipped casts the burden upon the shipper to show that the loss of plumbago from the casks was not caused by such loose condition | 1335 |
| Where it appears that the vessel encountered an unusually violent storm, which fully accounted for the damage within an exception in the bill of lading, the burden is on the shipper to show carelessness or negligence on the part of the vessel, leading to the loss | 1343 |
| The assignee of a bill of lading is unaffected by a usage between the consignor and carrier in reference to delivery, contrary to the terms of the contract, of which he has no notice | 1131 |
| BONDS. | |
| See, also, “Bail”; “Municipal Corporations”; “Principal and Surety”; “Railroad Companies.” | |
| Upon a bond conditioned to pay certain installments, an action may be brought up on failure to pay the first installment | 1146 |
| A township bond containing the statement that it is to be converted into a county bond, on certain contingencies, is not negotiable, and is open to defenses in the hands of any holder | 142 |
| Fraud of the payee is no defense to negotiable bonds in the hands of innocent holders for value, before maturity | 1067 1360 |
| BOTTOMRY AND RESPONDENTIA. | |
| No terms inserted in a bottomry by the master can make the owners responsible, beyond the value of ship and freight, for debts contracted for repairs and supplies | 1254 |
| Bond given for advances enforced, though the claims to pay which the money was advanced were not all in fact paid | 346 |
| The lender on bottomry is bound to show the necessity for the pledge of the ship and freight to recover on the bond | 1254 |
| Construction and legal effect of the terms, “loss,” “average,” and “salvage,” in a bottomry bond | 841 |
| BOUNDARIES. | |
| See, also, “Party Walls.” | |
| Where the original corners and lines are established, they must control courses and distances. But courses and distances called for must govern where there are no established objects to control them | 1324 |
| Public reputation, to prove boundaries, must be the reputation in the neighbor hood, and not what particular persons said | 1324 |
| BRIDGES. | |
| Congress has power to authorize, as a regulation of commerce, the building of a bridge across a navigable stream | 341 |
| A bridge constructed across a navigable stream, as authorized by act of congress and the local legislature, cannot be en joined as a public nuisance | 341 |
| The federal circuit court has jurisdiction of a suit to restrain the building of a bridge across a navigable stream only so far as to inquire whether such building is in violation of the constitution or laws of the United States | 341 |
| The history of the legislation of New York and of the United States in regard to the New York and Brooklyn bridge re viewed | 341 |
| A bridge company having an exclusive franchise to maintain a bridge may waive or abandon the same by its corporate act so as to bind its stockholders | 412 |
| CARRIERS. | |
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Charter Parties”; “Demurrage”; “Shipping.” | |
| Printed conditions of a ticket inconsistent with a valid oral contract of carriage are not conclusive against the passenger | 838 |
| Punitive damages are recoverable where a husband and wife who have contracted for the exclusive use of a stateroom are forced to receive another male passenger therein | 838 |
| The disappointment and irritation of a husband, and the discomfort and suffering of his invalid wife, resulting from assigning them to separate staterooms, in violation of the contract of carriage, are elements of damage | 838 |
| Shipping receipts held to constitute through contracts, by which the carrier was liable for the proper transportation of the articles beyond the line of its own road | *1131 |
| A forwarding carrier who pays past freight charges, according to usage, may recover the amount from the consignee | 609 |
| Where such forwarding carrier has no connection with the previous carriers, it is not liable for damage to the goods while in its possession | 609 |
| A shipper of lard in the summer months takes the risk of damage occasioned by the excessively hot weather, unless some neglect or fault can be charged upon the vessel, contributing to the loss | 1343 |
| The fact that cases of goods were in good order when received, and broken when delivered, casts the burden on the carrier to show how the injury occurred | 725 |
| Evidence showing that the injury would not have resulted in the common course of events, with proper care, in the absence of explanation, proves it to have been caused by negligence | 725 |
| Shippers of merchandise, of large experience, in the absence of evidence to the contrary, are presumed to use the best method of packing the same for the particular kind of carriage | 725 |
| The carrier has the burden of showing due diligence and proper care to avoid the accident, and that it was unavoidable, to avail himself of the exceptions of “dangers of navigation” | 581 |
| Contracts limiting the common-law liability of the carrier are to be strictly construed in favor of the shipper | 23 |
| A notice stamped on the bill of lading, “Not responsible for rust, breakage,” etc., and a statement by the receiving clerk to the same effect, do not make a specific contract limiting the carrier's liability | 136 |
| A person employed to construct glass cases and superintend their shipment can not bind the owner by a contract limiting the carrier's liability for loss from break age | 136 |
| Gross negligence in the stowage of glass cases will render the vessel liable, though liability for breakage was expressly excepted | 136 |
| Officers of a vessel, who know the con tents of certain boxes to be glass cases, are guilty of gross negligence where they fail to observe every precaution necessary to insure their safe stowage and safe delivery | 136 |
| A contract releasing the carrier from damage from “leakage or decay, chafage or breakage, or from any other cause not the result of collision of trains,” etc., held not to apply to loss by fire while the goods were stored in the carrier's warehouse | 23 |
| Carriers of live stock must provide accommodations whereby the stock can be safely and properly kept and cared for until a delivery can be made to the consignee according to the terms of the shipment | *1131 |
| CHARITIES. | |
| A religious corporation created under Act Pa. April 6, 1781, takes the title as trustee for the heir at law of the testator, who devised certain lands to it in trust for uses that were void | 329 |
| The statute of mortmain (9 Geo. II. c. 39) has never been in force in Pennsylvania | 329 |
| CHARTER PARTIES. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Demurrage”; “Shipping.” | |
| The master cannot keep the goods shipped, and refuse to sign a bill of lading to the order of the shipper, irrespective of his orders from the charterers, or the contract between the shipper and his vendee | 546 1361 |
| Under a charter stipulating that demur rage shall he paid day by day, and that the master shall sign bills of lading, the master must sign bills of lading, though demurrage is due and unpaid | 477 |
| In an action on the charter party, to compel the master to sign bills of lading, libelant can recover only the actual expenses incurred and rendered necessary by the master's refusal | 477 |
| The master of a vessel, who charters her for a specific term under an agreement to furnish her with all stores, is alone responsible for supplies furnished by one chargeable with notice of such charter party | 905 |
| Risk of loss by fire devolves on the charterers, where they covenant to return the vessel in like good condition, ordinary wear and dangers of the sea excepted | 83 |
| A charterer who assumes risk by fire is liable, in case of loss thereby, only for the excess in value over insurance money received by the owners | 83 |
| The ship is not liable for damage to cargo by stevedores selected as agents of the shippers under a special clause in the charter party. (Affirming Case No. 17,461.) | 288 |
| Vessel Held not liable for damage to car go in lower hold from leakage from casks of lard stowed between decks, and shipped in almost a liquid state, where the charterer agreed to pay all damages caused by such, leakage | 890 |
| CHATTEL MORTGAGES. | |
| Where the right of reconveyance on de fault of payment of purchase price is re served on a sale of property, the conveyance will be construed as a mortgage | 506 |
| Property subsequently acquired may be bound by the provisions in the mortgage to that effect, as against other creditors | 527 |
| Quaere as to the effect of provisions as to subsequently acquired property, as between incumbrances of different date | 527 |
| The parties may agree that the possession and use of the mortgaged chattels shall be retained by the mortgagor until condition broken | 527 |
| In Nevada a chattel mortgage is void as to creditors, unless immediate possession of the mortgaged property is taken and retained by the mortgagee | 781 |
| A mortgage is fraudulent and void, as to creditors, if the mortgagor is allowed to remain in possession of and sell and traffic with the goods as his own | 781 |
| A mortgage on a stock of goods can only he prima facie fraudulent as being out of the usual and ordinary course of business, and its validity may be established by proof | 711 |
| In Indiana an unrecorded chattel mort gage, where the property is not delivered to the mortgagee, is absolutely void, as against the assignee in bankruptcy of the mortgagor | 711 |
| In New Jersey a chattel mortgage is good against subsequent creditors from the time of filing | 322 |
| A statement which notifies creditors of the extent of the mortgagee's lien is sufficient to accompany the refiling of the mortgage | 322 |
| Until March 19, 1839, there was no law in Arkansas requiring chattel mortgages to be recorded. If recorded prior to that time, the record was not notice, but tended to give publicity and repel fraud | 86 |
| The filing by the mortgagor of a voluntary petition in bankruptcy is “an attempt to sell.” within the meaning of the provision giving the right to take possession | 711 |
| The practice on foreclosure is, by interlocutory decree, to allow until the next term to redeem, and, in default of redemption, to then foreclose by final decree barring redemption | 86 |
| COLLISION. | |
| See, also, “Admiralty”; “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | |
| Nature of liability—Contributive fault. | |
| In determining the question of fault, with a view of fixing the liability, the proximate cause of the injury must be regarded | 399 |
| Damages for an injury to a vessel moored, by the rubbing by a vessel lying alongside, caused by a collision with a third vessel under way, may be recovered against the colliding vessel | 940 |
| To recover of the vessel moored along side, she must be shown to have been in fault | 940 |
| A tug will not be held in fault for her engine's catching on the center, whereby she drifted towards rocks, and, in trying to get away, collided with a floating bath house | 951 |
| In case of inevitable accident each vessel bears its own loss | 1251 |
| Where measures of precaution have been neglected which would have rendered the collision less probable, it is no excuse that it could not have been prevented at the moment it occurred | 1319 |
| The tug is not responsible for a collision with the tow, which has gone adrift and is in great peril, while attempting to save her crew, where not guilty of gross negligence | 126 |
| Rules of navigation. | |
| A rule of supervising inspectors adopted before but not promulgated at the time of a collision held not applicable thereto | 1160 |
| Local inspectors cannot release a vessel from the obligation to carry colored lights | 209 |
| Suction of water from passing vessels is one of the natural incidents of navigation which a tug with a tow must guard against | 602 |
| Between sail vessels. | |
| Where both vessels are sailing free on different tacks, the one on the port tack must keep out of the way of the one on the starboard tack | 552 |
| As between a vessel sailing free and one closehauled, the latter must keep her course | 555 |
| A vessel closehauled on the privileged tack has the right to suppose that the other is performing her duty in keeping a look out, and will avoid her | 758 |
| Where a hail from the vessel on the privileged tack was not heard on board the other, held, that the collision was caused by the absence of a lookout | 758 |
| Vessels sailing, one within seven points of the wind, and the other two points free, are neither closehauled | 552 |
| Where neither vessel is closehauled, and are upon different tacks, both must seasonably port their helms, under rule 16, when approaching and in danger of collision | 552 |
| The vessel which does not seasonably port her helm will be held solely in fault where the other seasonably ported her helm | 552 |
| Between steam and sail. | |
| The steamer must take all proper pre caution for avoiding a sail vessel approaching from a direction involving risk of collision | 1165 1362 |
| In case of a sail vessel beating to wind ward, the steamer must anticipate her going in stays for another tack when proper to do so | 170 |
| Between steam vessels. | |
| Supervising inspectors' rule 1 does not authorize one steamer to dictate to another a departure from rule 13, requiring them to pass port to port. But it authorizes and makes binding a signaled agreement to de part from the rule | 427 |
| A steamer claiming protection, under an alleged agreement to depart from the rule, must show a proposition to that effect by proper signals in time to be acted on with safety, and that it was understood and accepted | 427 |
| A steamer will be held in fault for not taking the course indicated on her exchange of signals with another steamer, and the latter will not be held in default for keeping up her speed | 451 |
| That a steam propeller did not carry her mast light at proper elevation, and had no colored lights, will not prevent recovery, where the colliding steamer was traveling at great speed, and had no lookout, and her pilot would not have seen colored lights, and did see the mast light | 209 |
| Overtaking vessels. | |
| An overtaking vessel beating in the same direction with the vessel ahead is bound to anticipate the coming about of the latter when she has run out her tack | 1310 |
| An overtaking steamer in the East river, though her stem is ahead of that of the other steamer when they reach Hell Gate, must give way or be liable for a resulting collision | 1160, 1164 |
| Overtaking vessel held liable for a collision with a heavy barge towed alongside a steamer which broke her stem line on sheering on meeting a cross tide and grounding | 1339 |
| Vessels moored, etc. | |
| A canal boat moored at a dock by order of the harbor master is lawfully there, though it be at a narrow place in the river | 602 |
| In case of collision with a vessel moored, the presumption of wrong is against the moving vessel | 399 |
| Ordinary care under such circumstances will not protect the boat which commits the injury from responsibility | 399 |
| There is almost a conclusive presumption of fault in a steamer which runs into a vessel at anchor in a harbor, in a proper place, and with proper lights | 29 |
| Tugs and tows. | |
| A tug having vessels in tow, when meeting a sailing vessel, is subject to the rules applicable to ordinary steamers | 1136 |
| A tug in swinging an elevator in tow in to a slip is charged with the duty of avoiding a barge rightfully moored to the end of the pier with stern projecting | 1307 |
| River and harbor navigation. | |
| A tug working at a vessel aground in the channel of the St. Clair flats must give way to passing vessels, though it requires a temporary suspension of her efforts; and the master of an approaching vessel may rely upon her observance of such duty | 1156 |
| A steamboat will be held liable for a collision between two vessels properly secured at a pier, caused by her swells, where she passed unnecessarily near at high speed | 830 |
| A steamship will be held liable for so coming into her pier as to touch vessels lying at the second pier away | 1271 |
| There is no general obligation requiring vessels navigating rivers to keep to the right of mid-channel. No such custom is proven in respect to the St. Clair flats. | 427 |
| Speed: Fogs. | |
| Risk of collision, requiring reduction of speed, exists whenever vessels are so near that a collision might result from any departure from the rules | 427 |
| A steamer ascending a channel at 8½ miles an hour, and one descending at 14½ miles an hour, both condemned for excessive speed | 427 |
| Seven or eight miles an hour is excessive speed for a steamboat towing barges at a dangerous point on the Mississippi | 426 |
| Steamboats on the Mississippi are in fault for running in a fog without sounding the whistle at intervals not exceeding two minutes | 426 |
| A steam tug is not required by the supervising inspectors rules to sound her fog whistle while running in a fog; but it may be her duty under general principles of admiralty law | 773 |
| There is a fog, within the meaning of Act April 29, 1864, requiring sailing vessels to sound a fog horn, whenever the weather is so thick that the horn would be heard further than the ordinary signal lights could be clearly distinguished | 646 |
| Lights: Signals, etc. | |
| Sailing vessels are not bound to have lights suspended in the nighttime | 1345 |
| Lookouts, officers, etc. | |
| A tug having only a mate and wheelsman on deck is insufficiently manned. A look out is absolutely necessary | 1136 |
| It is inexcusable negligence for a large passenger steamer on Long Island Sound, at night, to have no lookout save the pilot in the pilot house | 209 |
| Absence of a pilot from a steamer navigating a narrow channel is prima facie a fault | 427 |
| Absence of a lookout is immaterial if the officer of the deck has all the information a lookout could give him | 427 |
| A custom not to keep a lookout will not be given any weight | 758 |
| Particular instances of collision. | |
| Between pilot boat and schooner, where the former was held in fault for failure to exhibit a light while lying to, and for want of a competent person on deck | 168 |
| Between steamer and skiff, where the steamer was held solely at fault | 363 |
| Between bark becalmed without colored lights and steamer, where both were held in fault | 1251 |
| Between steamer and vessel in anchor in fog, where both were held in fault, the former for too great speed, and the latter for absence of bell or fog horn | 840 |
| Between boat in tow astern and schooner drifting with tide in light wind, where tug was held in fault for not keeping out of the way | 928 |
| Between steamer and schooner, where both were held in fault, the former for improper maneuver, and the latter for failure to sound a fog horn | 646 |
| Between steamer and schooner which had proper lights burning, and did not change her course, where the steamer was held solely in fault | 206 |
| Between steamers in Hellgate, where the overtaking vessel was held in fault for not giving way when abreast of the other | 1160 |
| A bark drifting from her anchorage against another anchored vessel held liable, in the absence of sufficient evidence that the drifting was by inevitable accident | 272 |
| Procedure. | |
| A forfeiture incurred by a transfer of an interest in the injured vessel to an alien, 1363 | |
| but not judicially declared, does not pre vent him from joining in the libel | 1136 |
| The fact that the owners of a vessel in possession have placed the title temporarily in another, to secure moneys borrowed to pay her purchase price, will not prevent their maintaining a libel for collision | 168 |
| A boat licensed as a towboat, and having no license to carry passengers, does not violate the navigation laws by carrying a single passenger, so as to lose her redress for an injury done her in a collision | 773 |
| It is no defense that the vessel injured was engaged in the coasting business with out a license | 209 |
| The fact that a pilot boat is cruising off her station is no defense to a libel against another pilot vessel for a collision | 168 |
| The libel must narrate the particular facts and circumstances which caused the disaster | 555 |
| Where the answer admits that the vessel and cargo “were sunk and lost,” libelant may prove value without showing that she could not be raised | 208 |
| The ownership of a boat, in making out a prima facie case, may be proved in the same manner as any other chattel | 984 |
| Libelant must show freedom from contributing fault | 168, 1345 |
| The absence of lights and a lookout puts the party presumptively at fault | 555 |
| The testimony of one who saw the collision from the land is entitled to greater weight than that of those on the moving vessels | 552 |
| Weight and sufficiency of evidence of persons on moving vessels | 1165 |
| Testimony of officers and crew as to the number of whistles blown by their own vessel is to believed as against an equal number of witnesses on the other vessel | 427 |
| The positive testimony of witnesses to their own acts, at the time of a collision, is entitled to outweigh the opinions and beliet of out-numbering witnesses who judged of such acts from the opposite vessel | 1345 |
| The master and crew of a vessel are competent witnesses for the owner of the vessel in a cause of collision | 1345 |
| One party may call as witnesses persons who were on board the vessel of the other party | 646 |
| On a libel for collision of a steamer with a small boat, where it was alleged that the steamer was 200 or 300 feet away when seen, held that, as the small boat had time to get out of the way, there could be no recovery | 478 |
| A libel against a schooner for collision with a steamer dismissed where it appeared that both were properly manned and carried proper lights, and there was no preponderance of evidence that the schooner changed her course | 61 |
| In case of mutual fault, costs will be re fused both parties | 1251 |
| Rule of damages. | |
| Damages adequate to the full recompense of the injured vessel will be awarded against the vessel in fault | 1169 |
| Where a vessel sunk in a collision is sold as a wreck, the whole amount will not be allowed as a total loss where she is raised and repaired, but only the expenses and re pairs and demurrage for loss of time | 549 |
| Where it appears that the cargo of a sunken vessel was saved, freight money will not be allowed as damages, without actual proof of loss | 549 |
| That a part owner has received insurance as for a total loss is no reason why the en tire value of the vessel should not be awarded, on a libel by the owners | 208 |
| The owners of the vessel may recover for cargo lost without joining the shippers as libelants | 208 |
| The value of a boat stolen from the master of the injured vessel was disallowed, there being no necessary or probable connection proved between the collision and the theft | 1309 |
| Damages suffered by the injured vessel in the course of reasonable and proper efforts to save her are properly chargeable in the action for collision | 1161 |
| The injury or loss of a portion of the cargo after the wreck, by the efforts of a third vessel to save it, does not exonerate the faulty vessel from liability for full damages | 1165 |
| Damages caused by beaching the injured vessel are chargeable to the vessel in fault, where the master acted with reasonable skill and diligence after the collision | 1309 |
| The cost of raising a boat and putting her on the ways to be examined is recoverable as an item of damage, though greater than her value when raised | 1271 |
| Salvage expenses and charges necessarily paid in rescuing the vessel and cargo from perils arising out of the collision will be al lowed as damages | 1169 |
| A bona fide adjustment by the parties will be accepted by the court as the proper mode of fixing the value of such services | 1169 |
| The commissioner's report of the amount of damages will be adopted in the absence of palpable errors or inadvertencies | 1169 |
| Compensation will be made for the loss of the use of the injured vessel while under going repairs | 773, 1161, 1169 |
| The highest rate of interest allowed in the state during the time of the detention of the vessel undergoing repairs upon her value allowed as damages for her detention | 984 |
| No damages can be recovered for the de lay of barges in tow of the injured vessel where the libel does not state to whom they and their cargo belonged | 773 |
| The expense of putting in a new mast cannot be allowed where the injured mast as repaired stood the remainder of the sea son, and it did not appear but that it would have continued serviceable | 602 |
| Interest should be allowed on the dam ages from the day on which the injury happened until the day when judgment is rendered | 773 |
| Revision of damages. | |
| In case of mutual fault, or where the fault cannot be determined, the damages are equally divided between the vessels, without regard to the difference of their values | 1251 |
| The rule of mutual contribution is not applied where the collision was the result of physical cause, for which neither vessel is to blame: but in such case each vessel must bear her own loss | 940 |
| Where a vessel is injured by the joint negligence of two vessels, the damages must be apportioned between them | 602 |
| Review. | |
| The amount of the allowance, unless strikingly out of proportion to the damage, will not be interfered with where the principle adopted was the correct one | 1161 |
| COMMON LAW. | |
| The decisions of the English courts prior to the Revolutionary War are of binding force on the Virginia courts | 1013 |
| Compromise. | |
| See “Bankruptcy”; “Discnarge.” “Payment”; “Release and Discharge.”; 1364 | |
| CONSTITUTIONAL LAW. | |
| It is doubtful whether state laws relating to weights and measures can have any validity, though congress has never exercised its power of regulation | 254 |
| The inhibition against laws impairing the obligation of contracts does not apply to federal legislation | 263 |
| A state legislature has no power, by re pealing a municipal charter, to invade the rights of creditors | 407 |
| The state legislature cannot take away the right of the holder of a county bond, which existed when the bond was made, to sue the county thereon, by prescribing a different remedy for collection of such bond | 1209 |
| It is competent for a state legislature to give a right of action on contracts which were prohibited at the time they were made | 403 |
| A state law prohibiting a sale on execution unless the property will bring two-thirds of the valuation affixed to it by three householders is void as to contracts made before its passage, but valid as to all others | 679 |
| Act N. Y. Feb. 11, 1824, imposing penalties for neglecting to report passengers brought from foreign countries into the port of New York, is within the police power of the state | 406 |
| The right of the states to make inspection laws is subject to the paramount right of congress to regulate foreign and inter state commerce, and an impost on imports or exports is void, if in excess of what is absolutely necessary for executing such in spection laws | 1302 |
| Congress is the proper authority to decide whether a charge or duty is or is not excessive | 1302 |
| A state tax upon locomotives, passenger and freight cars, etc., being an expedient for raising revenue, is unconstitutional, as interfering with commerce between the states | 458 |
| Act March 2, 1867, validating punishment of certain offenders, and protecting from civil process persons striving, under executive orders, to suppress the Rebellion,heldex post facto as to the former provision, but valid as to the latter | 1030 |
| The term “ex post facto” does not apply to acts of a civil nature | 440 |
| CONTEMPT. | |
| The power to discharge or to remit the sentence in the case of a person committed to prison until payment of a fine, imposed as a punishment for contempt in violating ail injunction, falls within the pardoning power vested in the president | 968 |
| The court cannot discharge such person, on the ground that he is unable to pay the fine, until the president has disclaimed the power to relieve by pardon | 968 |
| The fact that the amount of the fine, in the order imposing it, was directed to be paid to plaintiff in the injunction suit, to wards the reimbursement of his expenses in the attachment proceedings for the con tempt, does not take the case out of the pardoning power of the president | 968 |
| CONTINUANCE. | |
| Cause continued at defendant's request, where, at the last calling for trial, the is sue is not made up, and no rule to plead has been laid | 769 |
| An allegation of surprise will not prevail when made by plaintiff who pressed a trial | 1059 |
| Continuance not granted because a com mission to examine a witness is not re turned, unless the materiality of the wit ness be shown by affidavit | 769 |
| CONTRACTS. | |
| See, also, “Assumpsit”; “Sale”; “Vendor and Purchaser.” | |
| The contract is governed by the law of the place where it was made or is to be performed | 1254 |
| A contract made in one state, to be partly performed there, and partly in several others, is governed by the law of the place where it is made | 754 |
| But conveyances and transfers of property subject to the local law, where required to be made in performance of the contract, must be made in accordance with the lex rei sitæ | 754 |
| The repeal of a prohibitory act does not validate contracts made while the prohibition was in force | 403 |
| A contract made by telegraph is completed when an acceptance of the proposition is deposited for transmission in the telegraph office | 447 |
| A contract for material in “tons,” held to call for 2,240 pounds, though the state has attempted to fix a ton at 2,000 | 254 |
| Construction of clause in contract in relation to forfeiture of payment for work done on abandonment of the contract | 321 |
| A stipulation to pay for building a railroad, partly in stock, one-half to be reserved until the contract was completed, held executory; and, on wrongful interruption of the work, the covenantee was entitled to damages for the value of the stock | 1122 |
| A contract will not be set aside upon charges of fraud and misrepresentations in procuring it, where a rescission would disturb many large and important transactions, except upon clear proof | 754 |
| COPYRIGHT. | |
| The publisher of a newspaper who print ed therein a piece of music which has been copyrighted is liable for the statutory penalty for infringement, of one dollar per sheet, although he knew nothing of the copyright, and copied the music from an other newspaper | 374 |
| A preliminary injunction to restrain publication of a work alleged to be an infringement will not be enjoined where defend ant is able to meet any damages, and there are grave doubts as to the validity of plaintiff's copyright, and of the infringement complained of | 333 |
| CORPORATIONS. | |
| See, also, “Banks and Banking”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies.” | |
| An exemption from taxation by charter must be expressly conferred, or must appear by clear and necessary implication from the language used | 458 |
| The payment of a bonus for a charter does not protect the grantee from taxation not expressly reserved therein | 458 |
| A subscription to stock must be presumed to have been made with a view to existing laws authorizing fundamental changes in the charter, and such changes may be made against the will of the minority holders | 930 |
| In the absence of laws existing at the time the subscription was made, no fundamental changes in the charter can be made without consent of all the stockholders | 930 1365 |
| The failure of a director to object to the adoption of a resolution by the board, at a meeting at which he was present, will not prejudice him, where such resolution was merely preliminary to submitting the question to a vote of the stockholders | 930 |
| No consent of stockholders is necessary to the mortgaging of personal property or the assignment of patents by a New York manufacturing corporation | 723 |
| The seal of a corporation, together with the signatures of its proper officers, raises a presumption that the deed was made with proper authority from the corporation | 268 |
| Temporary embarrassment is not “insolvency,” within Act N. J. April 15, 1846, § 2, prohibiting insolvent corporations from making contracts | 318 |
| A loan to a corporation by a director thereof, and the giving of a mortgage to secure it, is not within the rule prohibiting a trustee to contract with himself in relation to the trust property | 318 |
| The fact that the money was obtained to pay debts for which the director was security will not invalidate the mortgage | 318 |
| A sale of stock in the treasury to a trustee on credit approved by the board of trustees held a valid sale | 723 |
| The shareholder must examine his certificate, and ascertain his actual position and liability | 1224 |
| Circumstances which make a shareholder liable for previously contracted debts, and effect of misrepresentations by agent | 1224 |
| If a shareholder assumes the benefits and advantages of a partner, he cannot, when called upon to respond for the contracts of the corporation, deny his liability | 1224 |
| Though a subscription be obtained by fraud, the stockholder may waive it by assuming its advantages | 1224 |
| Unpaid subscriptions to the capital stock of a corporation are assets applicable to the payment of corporate debts, which the corporate authorities may call in for corporate purposes | 1118 |
| But creditors cannot interpose unless the corporation is without other assets to meet its obligations | 1118 |
| The assignee of stock is liable for the amount unpaid thereon, though he relied upon the representations of his assignor and an officer of the company that the stock was fully paid for | 1118 |
| The ownership of stock does not give the stockholder any legal estate in the property of the corporation | 759 |
| A stockholder cannot sue in equity for relief against an injury done or threatened to the corporation in which he is a stockholder, without averring that the corporation or its officers are derelict in their duties | 759 |
| A corporation which has a legal existence in any one, state can sue in the federal courts of any other state. It is not necessary that it be a corporation created by the laws of that state | 1228 |
| A corporation cannot be made a party to a civil suit in a circuit or district court, by original process, in any other district than a district of the state by which it was created | 1105 |
| A person who has taken a loan from a corporation, made in violation of its charter, or his surety, cannot set up in defense the want of power in the company to make the loan | 1081 |
| COSTS. | |
| The plaintiff in a patent suit is entitled to costs (Act 1836, § 14), on a verdict in his favor, whether the recovery is nominal or compensatory, and regardless of the action of the court in respect to increasing damages | 37 |
| The prevailing party in admiralty suits is prima facie entitled to recover costs. But costs are awarded in the sound discretion of the court | 898 |
| Where the balance due for wages is small, and the seaman failed to demand it of owner or master, costs will be denied him in a suit therefor | 898 |
| A tender of the amount due, and costs, will throw costs upon libelant | 548 |
| The circuit court may, by general rule or special order, in a particular case, require parties to file printed briefs, the reasonable cost of printing which may be taxed as a disbursement against the losing party | 1290 |
| COURTS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Equity”; “Justices of the Peace”; “Maritime Liens”; “Removal of Causes”; “Rules of Court.” | |
| Comparative authority of federal and state courts: Process. | |
| A federal court will not stay proceedings in a cause of which it has jurisdiction, and in which the complainant is entitled to some relief, although the subject-matter of the controversy is in the hands of a receiver of a state court; but the federal court will do nothing to disturb the receiver's possession | 25 |
| Federal courts—Jurisdiction in general. | |
| All federal courts inferior to the supreme court exercise only such jurisdiction as is given by law; but, after the jurisdiction is designated, they take cognizance of all matters within its scope without special appointment of law | 232 |
| The jurisdiction of the federal courts can not be enlarged, diminished, or affected by state laws | 1209, 1259 |
| A foreign insurance company may sue in a federal court, regardless of state statutes forbidding such companies to resort there to | 218 |
| Original jurisdiction may be conferred by congress upon the federal circuit courts by the removal into them from the state courts of cases arising under the constitution and laws of the United States and treaties | 1061 |
| A federal court has no jurisdiction to en join the erection of a bridge, authorized by a state legislature, over a navigable river wholly within the state | 412 |
| The federal circuit court may, in a proper case, enjoin agents or officers of the state, though the state is the real party in interest | 1017 |
| Unless a party has a right to sue in the local courts, he cannot sue in the federal courts | 759 |
| Neither under the bankrupt act of 1867 nor by Act June 1, 1872, § b, in respect to attachment of property, can a civil suit be brought by original process in the federal court in any other district than that of which defendant is an inhabitant, or in which he is served with process | 1259 |
| Where necessary to the exercise of its jurisdiction the federal cóurt will issue the proper process to bring the matter before the court | 1061 |
| Objection to the jurisdiction may be taken by motion, and is not waived by sub sequently pleading to the merits | 1259 |
| ——Grounds of jurisdiction. | |
| To give jurisdiction on the ground of parties it must appear affirmatively that complainants 1366 | |
| plainants are not citizens of the same state with defendants | 153 |
| The jurisdiction of the circuit courts on the ground of citizenship is confined to cases where the suit is between a citizen of the state where the suit is brought and a citizen of another state. (Act 1789, § 11.) | 559 |
| It is conclusively presumed that if a corporation has a legal existence in a state, its corporators are citizens of the same state | 1228 |
| The fact that a corporation holds charters from other states will not prevent the circuit court of the state where it was created taking jurisdiction of a suit against it by nonresidents | 458 |
| Federal jurisdiction is not lost in a suit between citizens of different states, merely because there may be found in it, as necessary parties, one or more defendants of the same state with the plaintiffs or some of the plaintiffs | 1239 |
| In a suit by a citizen of another state against a corporation of the state, service of process, within the state, on a joint defendant, who is a citizen of a third state, gives the court jurisdiction over him | 930 |
| Where the writ is returned non est, etc., as to a defendant whose citizenship is not averred, his joinder will not oust the court of jurisdiction | 836 |
| An assignee of a chose in action may sue, if the original holder could have done so, although some intermediate holder was a citizen of the same state with defendant | 290 |
| A federal court has no jurisdiction merely because one party is a United States consul at a foreign port | 425 |
| The citizenship of a corporate party need not appear in the caption of the petition. It is sufficient when the facts are averred in the body thereof | 243 |
| An allegation that plaintiff is a subject of a foreign power does not confer jurisdiction, as he may still be a naturalized citizen | 258; contra, 403 |
| The circuit court has no Jurisdiction, on the ground of the subject-matter, of a suit to enforce a license granted under a patent, or a suit to set it aside on the ground that the patent is void | 153 |
| The circuit courts have jurisdiction of all actions brought by or against national banks without regard to citizenship or the amount involved | 522 |
| The damages laid in the declaration give jurisdiction as to the matter in dispute | 999 |
| The damages laid in the writ, and in the plaintiff's affidavit, are equally conclusive, as to the amount in controversy, for the purposes of jurisdiction | 999 |
| ——Circuit courts. | |
| The actual jurisdiction of the circuit courts is governed by the judiciary act, and not by the broader terms of the constitution | 559 |
| The circuit court in New York has no jurisdiction of a suit by a citizen of New York and a citizen of Georgia against a citizen of Massachusetts | 559 |
| ——Administration of state laws. | |
| The construction given by the highest court of the state to a state statute is binding on the federal court | 105 |
| The federal courts are bound to follow the latest decision of the state court, though it renders invalid a contract valid under the decisions of state court when made | 503 |
| As to general principles of law the federal courts are not bound by the decisions of the state courts | 567, 1082 |
| The court will follow the construction of a state statute as given by the supreme court of the United States, rather than later construction given by the highest court of the state | 1263 |
| Local courts. | |
| In actions sounding in damages, those claimed in the declaration, and not those awarded by the jury, give jurisdiction | 1036 |
| CRIMINAL LAW. | |
| See, also, “Arrest”; “Bail”; “Extradition”; “Grand Jury”; “Habeas Corpus”; “Witness.” | |
| The Great Lakes are not “high seas” within the meaning of Act July 29, 1850, punishing the burning of vessels | 300 |
| CUSTOM AND USAGE. | |
| A usage for wharfingers to accept goods arriving at their wharves, as agents for the consignees, would not be valid | 273 |
| CUSTOMS DUTIES. | |
| Rates of duty. | |
| Crape veils, made of silk, are presumptively embraced within the term “silk veils,” unless commercially known as distinctive articles | 833 |
| Linen lusters, camlet lusters, toile du nord and lusters composed of linen and cotton, held dutiable as manufactures of cotton not otherwise provided for (Act July 30, 1846), under the rule of construction provided by Act Aug. 30, 1842, § 20 | 770 |
| Invoice: Entry: Appraisal. | |
| Both “draft” and “tare” are allowable on sugar imported in bags, and subject to duty by weight. (Act March 2, 1799, § 58.) | 1149 |
| A separate freight paid from Canton to Manilla, where the cargo was transshipped, cannot be added in ascertaining dutiable value. Contra as to other charges at Manilla | 289 |
| Under Act Aug. 30, 1842, § 16, the value of the goods at the time of their purchase, and not that at the time of their exportation, is the dutiable value | 772 |
| Under Act March 3, 1851, goods are to be appraised as at the time of their exportation | 824 |
| The 20 per cent, penalty for undervaluation (Act July 30, 1846, § 8) is not limited to cases where an entry has been made, or where the importer, on entry, has added to the invoice cost or value | 824 |
| Act March 3. 1851, § 1, varies Act July 30, 1846, § 8, only so far as concerns the period of time for valuing imports | 824 |
| The rates of commissions to be charged to goods to make up their dutiable value (Act Aug. 30, 1842, § 16) must be ascertained in the same manner as the value of the goods. The collector has no power to charge an arbitrary rate | 999 |
| Payment: Protest. | |
| To recover back unascertained and estimated duties, which are to be afterwards liquidated, a protest is necessary; but it may be made at the time of final liquidation. (Act 1845.) | 574 |
| The fact that the collector exacts duties in violation of instructions does not supply the want of a protest | 574 |
| Violations of law: Forfeiture. | |
| Goods are imported and brought into the United States when brought within the limits of a port of entry with the intention of unlading them there | 483 |
| In a libel filed against a vessel to recover the penalty imposed by Act March 2, 1799, 1367 | |
| for failure to enter goods on the ship's manifest, it is not necessary to aver a prior seizure | 479 |
| It is not an essential preliminary that the ship should have been seized, or that proceedings to recover the penalty should have been instituted against the master or owner personally | 479 |
| Burden of proof held not shifted to claim ants on production of reports on file in the customhouse showing that a certain lot of goods seized were found on the vessel not entered on the manifest | 483 |
| Where a forfeiture is remitted by the secretary of the treasury, pursuant to the statute authorizing him to do so, the cause of forfeiture is released, and any exactions based thereon are illegal | 1045 |
| Customs officers. | |
| The estate of a collector of customs is not entitled to fees or perquisites of the office accruing, after his death, from the official acts of his deputies | 68 |
| DAMAGES. | |
| See, also, “Contracts”; “Collision”; “Patents.” | |
| Damages may be given in the case of an injury to a child from negligence, where there is no other substantial element than physical suffering. | 749 |
| Where a skiff was sunk in a collision, and libelant personally injured, the court allowed, as damages, the value of repairs to the skiff, and compensation for loss of its use, the cost of libelant's cure, compensation for his sufferings and for loss of time, and compensation for permanent injuries | 363 |
| Compensation in damages for a permanent partial disability from personal in juries arrived at by the allowance of a sum equal to the amount of such income as the ordinary labor of the injured per son would produce for one-third of his expectancy of life according to the mortality tables | 363 |
| Punitive damages are given for a personal injury only where it was the result of willful misconduct, or of that reckless indifference to the rights of the injured person which is equivalent to an intentional violation of them | 304 |
| In an action of covenant, plaintiff having been wrongfully prevented by defend ants from completing the work, the measure of damages is the difference between the price agreed to be paid for the work and what it would have cost plaintiff to complete it | 1122 |
| DEATH. | |
| A person absent seven years without being heard from is presumed to be dead | 628 |
| In such case death will be presumed to have occurred at the end of the seven years | 561 |
| DEBT, ACTION OF. | |
| A declaration in debt in an action on a simple contract is bad if it allege that defendant “promised” instead of “agreed” to pay, for the action of debt is founded upon a contract | 177 |
| DEDICATION. | |
| A plat of lands, made out, acknowledged, and recorded by the owner in conformity with the statute, operates as a sufficient conveyance of the streets and public grounds to the public use | 1329 |
| A plat made out and recorded in a different county from where the land is situate does not operate as a dedication | 1329 |
| Deeds referring to a plat, but given be fore the grantor acquired title, do not bind him, as an act of dedication | 1329 |
| But an unequivocal recognition of the map after purchase would operate as an affirmance of the original intention of dedication, and give it full force and effect | 1329 |
| User for 20 years, to constitute a dedication by prescription, must be shown to have been adverse, under some real or pretended claim or right, and exclusive | 1329 |
| DEED. | |
| See, also, “Acknowledgment”; “Boundaries”; “Vendor and Purchaser.” | |
| Under Act Ill. Jan. 24, 1831, a deed of land in Illinois is valid if executed according to the law of the state where it is made | 694 |
| Act Va. Dec. 6. 1786, against conveying pretended titles, does not vacate the deed, as between the parties | 365 |
| In the description of a tract of land, an omission to state the course in one call held to be supplied and rendered certain by the remainder of the description | 884 |
| The words of the grant are controlled by the habendum | 524 |
| A clause against the use, in payment of a husband's debts, of any part of land deeded to him for the sole and separate use of his wife, with limitation over on her death to him and her children, held not to apply after the fee passed to him | 1130 |
| If a deed purports to be made “for a valuable consideration,” it is competent for a person claiming under it to give evidence of a money consideration | 997 |
| A deed of bargain and sale only passes such estate as the grantor has, and can rightfully convey | 440 |
| The issue in tail, with assets, are barred by their ancestor's deed of bargain, and sale, with warranty; and where other land descends, liable to a charge, it is as sets pro tanto | 440 |
| DEMURRAGE. | |
| Demurrage is recoverable for unnecessary or improper detention in loading or unloading, without an express stipulation therefor | 952 |
| The shipowner must await his turn for a reasonable time, to be determined by the ordinary volume and exigencies of trade at the place of discharge, where the custom prevails in the trade to unload in the order of arrival | 952 |
| DEPOSITION. | |
| No notice is required where the witness resides over 100 miles from the place of trial, and the deposition is taken under the statute. (1 Stat. 88. § 30.) | 86 |
| Notice to the adverse party or his counsel need not be given where neither is within 100 miles of the place of caption | 365 |
| Notice of time and place of taking is necessary under a joint commission, but if the opposite party fails to join, and the commission issues ex parte, notice is not necessary | 86 |
| Service of notice to take may be made by leaving a copy at the party's dwelling house, with a free white person resident in the family | 86 |
| The probate court of Mississippi being a court of record, and possessing a seal, 1368 | |
| the judge thereof is authorized to take depositions, under the statute | 86 |
| A joint commission to take a deposition must be executed by all the commissioners, though the commissioner named by the adverse party, after proceeding some length in the examination, withdrew, and refused to complete it | 993 |
| The magistrate need not certify that he was not of counsel for either of the parties, nor interested in the suit | 365 |
| A deposition before the mayor of a city, under the act of congress, is sufficiently certified “as taken in pursuance of the act,” though it be not stated that the wit ness was cautioned | 694 |
| A certificate by the officer taking the deposition, of the residence of the witness, and that it is over 100 miles from the place of trial, is sufficient to authorize the reading of the deposition | 86 |
| It is sufficient if all the interrogatories which accompany a commission are substantially, although not formally, answered | 1340 |
| Under an ex parte commission, any of the interrogatories, except the last general one, may be omitted | 86 |
| Depositions which do not show, either in the caption or body of them, between what parties they were taken, cannot be received | 1059 |
| A deposition will not be excluded be cause defendant's name is omitted from the caption, where it appears in the com mission and proceedings | 86 |
| A party will not be compelled to produce depositions taken by consent | 678 |
| The circuit court will issue letters rogatory, for the purpose of obtaining testimony, when the government of the place where the evidence is to be obtained will not permit a commission to be executed | 1340 |
| DESCENT AMD DISTRIBUTION. | |
| An adopted child cannot take as next of kin of the adopting parents in the District of Columbia | 684 |
| DISTRICT ATTORNEYS. | |
| A district attorney in Oregon, by virtue of his office, is the attorney for the several counties in his district; and he must prosecute or defend all actions to which such counties may be a party, without reference to the locality of the court | 741 |
| The county court may employ counsel to assist, but the district attorney is entitled to control the proceedings | 741 |
| EJECTMENT. | |
| See, also, “Adverse Possession”; “Real Property.” | |
| Proof of prior possession is sufficient to maintain ejectment against a mere trespasser | 268 |
| Confirmation of a Mexican land grant by the land commissioners and the district court does not vest legal title so as to bar ejectment by one holding a patent from the United States | 251 |
| The title of a person under whom both parties claim can be denied by neither | 268 |
| In ejectment by A. against B., a judgment against A. determines nothing as to the validity of B.'s title; and, in a subsequent ejectment by B. against A., B. must show a good title | 133 |
| In such case, A. may set up a subsequently acquired title | 133 |
| Defendant, in defense, may either set up his own title, or rely upon the weakness of plaintiff's title. (Civ. Code Or. § 316.) | 741 |
| Deeds conveying pre-emption rights, though invalid, may be received in evidence to prove outstanding title, where the patent has since actually issued | 747 |
| Nominal damages only can be recovered where there is no evidence of possession by defendant at any time anterior to the date of commencement of the suit | 720 |
| EMBARGO AND NONINTERCOURSE. | |
| Condemnation of a vessel, and part of her cargo, for a breach of the nonimportation laws | 1340 |
| After affirmance of the sentence of condemnation of the district court for a breach of the revenue or nonimportation laws, the court will forthwith, on motion, give judgment against the claimant and his sureties on the bond given upon the delivery of the cargo to him, at the appraised value | 1340 |
| EQUITY. | |
| See, also, “Courts”; “Injunction:” “Pleading in Equity”; “Practice in Equity.” | |
| The process of a court of equity will not be afforded for the purpose of enforcing a forfeiture | 867 |
| A party who desires to rescind a contract on the ground of fraud must offer to return the thing purchased, whether it be land or personal property | 1038 |
| When a contract has been violated in its essential terms, or made impossible of execution, equity will relieve, if it can do so without prejudice | 867 |
| Courts of equity possess concurrent jurisdiction with courts of law in matters of account, and will interpose where a court of law could not give adequate redress | 496 |
| A bill to set aside a deed for duress dismissed where there was a delay of 12 years, and defendant had made valuable improvements | 1038 |
| ESCAPE. | |
| Though imprisonment for debt is abolished in Michigan, a sheriff is yet liable for permitting the escape of a debtor arrested for fraud under the state statutes | 242 |
| EVIDENCE. | |
| See, also, “Appeal”; “Deposition”; “Trial”; “Witness.” | |
| Judicial notice. | |
| The federal courts take judicial notice of the state laws | 86 |
| The federal court will take cognizance of the constitution and laws of the state on the subject of her courts, and ascertain which are courts of general jurisdiction | 1317 |
| A prize court will take judicial notice of the notorious course of trade between a certain neutral port and blockaded ports of the enemy | *155 |
| Best and secondary. | |
| Moneys collected by the government on execution may be proved as a credit in a subsequent action on the same bond, against a different party to the bond, with out exhibiting the voucher for such payment to the treasury department | 1120 |
| The receipts of a collector of taxes are not evidence on proof of his handwriting, where he is within the jurisdiction of the court | 383 1369 |
| If original entries are lost a copy is admissible | 707 |
| Declarations and admissions. | |
| Admissions, such as might be considered the natural effusions of mortified pride or vanity, though clear and distinct against a party's interest, are entitled to but little weight as evidence against him | 1139 |
| Declarations by a grantor impeaching his own deed are inadmissible | 86 |
| In an action for enticing a servant, declarations of the servant are inadmissible | 283 |
| The declarations of defendant's agent, by whose orders plaintiff had made insurance for defendant's benefit, are not admissible to prove defendant's liability for the premium | 375 |
| Documentary. | |
| A record of the proceedings against a bankrupt, attested by the clerk of the district court, is good evidence, the certificate of the presiding judge not being required in the case of records from federal courts | 1059 |
| The certificate of a probate judge to the copy of a will is not invalid for want of a seal where the judge certifies that the court has no seal | 747 |
| Admissibility of executive documents as proof of a state of war between foreign nations, and of their consular officers, etc., on a libel of forfeiture for breach of the neutrality laws | *178 |
| A power of attorney acknowledged before the mayor or chief magistrate of a city, and certified under the public or common seal, may be given in evidence | 376 |
| Ship's manifest held admissible in evidence on proof that it was produced from the usual place of deposit in the custom house, and that no other manifest was on file for the voyage | 483 |
| A book of original entries kept by the master of a tug, who was also part owner, held inadmissible to prove cash payments to seamen, there being no other proof of such payments | 375 |
| Parol evidence. | |
| An agreement under seal compromising a suit does not prevent either party from setting up and proving a parol undertaking that one of the parties should pay accrued costs | 724 |
| Handwriting. | |
| Proof of the handwriting of a deceased subscribing witness, unaided and unopposed by other evidence, held sufficient to establish execution of the instrument | 1013 |
| The signature of the grantor in a deed may be proved without first proving the signature of the subscribing witness, where it is shown that he has left the country, and it does not appear that his handwriting can be proved | 747 |
| Evidence to prove handwriting commented on in charge to jury | 1005 |
| Weight and sufficiency. | |
| The evidence will be regarded as in favor of the party having the greatest number of witnesses, where there is an irreconcilable conflict, and circumstances of suspicion attach to the credit of both sides | 1157 |
| Testimony of the agent of a party that a certain amount was concluded upon after examination of an account current held prima facie sufficient, without producing the account | 583 |
| EXECUTION. | |
| See, also, “Attachment”; “Bankruptcy”; “Garnishment”; “Judgment.” | |
| The enforcement of an execution in the federal court is governed by the local law and policy | 557 |
| Immunity from imprisonment for debt, granted under the state insolvent law, will apply in the case of executions issued out of the federal courts on prior judgments | 557 |
| Plaintiff may take out a new execution after the expiration of a year and a day, where he has countermanded the original execution at defendant's request, or has been delayed by injunction | 983 |
| An execution issued on a judgment which does not authorize it may be quashed on motion, and the money made thereon order ed to be refunded, except where there is only a clerical mistake, in which case the execution will be corrected | 1037 |
| A levy upon land, which is not sold for want of bidders, does not render void a sub sequent sale of other land on another execution on the same judgment | 885 |
| The bona fide assignee of a judment may purchase at a sheriff's sale thereon | 785 |
| A sale on execution of a partner's interest in the firm passes only the debtor's interest in the chattels actually seized on the execution | 699 |
| A sale under an execution issued upon a judgment in an action in which the land sold had not been attached, and where there was no service upon the defendant except by publication, is void | 884, 885 |
| After six years possession under a sheriff's deed made in good faith, and for a valuable consideration, objections to the process and its execution are not available. (Act Pa. March 26, 1785.) | 778 |
| A purchaser at execution sale is entitled to show that a prior deed by the debtor was fraudulent, as against the execution creditor | 275 |
| EXECUTORS AND ADMINISTRATORS. | |
| The executors are personally liable for an overpayment to legatees | 561 |
| A bond creditor need not pursue personal assets of his debtor in the hands of per sons other than his personal representative, if such pursuit threatens to be tedious, intricate, and unproductive | 1013 |
| An attorney in fact of an executor or administrator cannot maintain suit in his own name for the benefit of the estate | 1278 |
| Exemptions. | |
| See “Bankruptcy.” | |
| EXTRADITION. | |
| The specific applications of the definitions of the crimes named in a treaty are determinable in particular cases by the jurisprudence and legislation of the particular places of arrest | 975 |
| The law of the state in force at the date of the commission of the offense, and at the time of the hearing under the application will control | 975 |
| The laws of France, and not those of the United States, form the basis for the inquiry whether an extraditable offense has been committed, under the treaty of November 9, 1843 | 232 |
| A person against whom a complaint has been made and accepted before a judge of instruction in France is a person accused, within the meaning of the extradition treaty | 232 |
| Whether the government is bound, under a treaty, to deliver the fugitive, and whether he is within the description of persons named therein as subject to extradition, are questions for the political, not the judicial, department | 232 1370 |
| Extradition to a foreign country can only be effected through the courts, which must determine the existence of probable cause, and of sufficient evidence to justify putting the accused to trial | 232 |
| Testimony of a vice consul that he had received official information from his government in respect to the crime and the fugitive, together with verified depositions in proceedings before a judge of instruction in France, with other evidence, held sufficient to justify detaining the fugitive for trial | 232 |
| The application may be renewed after a discharge on a previous application in an other state, where the case does not appear to have been fully investigated | 975 |
| An indictment, or its equivalent, in the foreign country, is not necessary to authorize extradition for a crime committed there in | 975 |
| Duly certified or attested depositions taken abroad are admissible here, if they would be admissible in the foreign country, in support of the charge of crime | 975 |
| FACTORS AND BROKERS. | |
| Factors selling goods consigned under a del credere commission held liable for loss on a bill of exchange received in payment, and remitted, but not on one purchased for remission, as authorized | 977 |
| FALSE IMPRISONMENT. | |
| See, also, “Arrest”; “Malicious Prosecution.” | |
| A justice of the peace is not liable in an action of false imprisonment under an illegal warrant issued by him, unless it be is sued maliciously | 1267 |
| FERRY. | |
| Under a grant of a ferry franchise, no powers win be construed to have been given by implication | 465 |
| FORFEITURE. | |
| See, also, “Customs Duties”; “Internal Revenue”; “Shipping.” | |
| A libel of forfeiture against a vessel which has been seized upon water navigable from the sea is a civil cause, of admiralty and maritime jurisdiction, and must be tried to the court sitting as a court of admiralty, without a jury | *178 |
| An information for a statute forfeiture should conclude against the form of the statute, or at least refer to some subsisting statute authorizing the forfeiture | 1148 |
| A mere conclusion of an information against the form of a statute will not cure the defect of material averments to show that a forfeiture has accrued | 174, 1148 |
| FRAUD. | |
| Possession of goods by any other than the real owner is neither fraudulent, nor a badge of fraud, if the want of possession is fairly accounted for, and there is no fraud in fact | 109 |
| FRAUDS, STATUTE OF. | |
| A verbal agreement by a bank, without funds on deposit of the drawer of a check, to pay such check if presented for payment through the clearing house, is within the statute | 865 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy.” | |
| The transfer of property as security for antecedent debts, without extinguishment or surrender of such debts and of the old securities therefor, is not sufficient to constitute the transferee a bona fide purchaser for valuable consideration, | 854 |
| One taking an assignment of a mortgage, with notice of the insolvency of the mortgagor, as collateral security for antecedent debts, is not a bona fide purchaser for valuable consideration, without notice | 854 |
| A reconveyance to the seller on default in payment of the purchase price as pro vided in the original transfer invalid as to creditors, where not accompanied by possession | 506 |
| The giving of a joint note by husband and wife for lands purchased by her will not subject the lands to his creditors, where the note is paid out of the wife's separate property | 397 |
| A conveyance by a father to his son of all his property held evidence of intent to defraud creditors | 275 |
| Possession of slaves by the mortgagor, either before or after condition broken, is neither fraudulent, nor a badge of fraud requiring explanation | 86 |
| GARNISHMENT. | |
| See, also, “Attachment”; “Execution.” | |
| The garnishee is not liable to the plaintiff for goods of defendant in the garnishee's custody in another jurisdiction, where the debtor himself resides | 320 |
| A draft by defendant on the garnishee in favor of a third person, of which he has notice before the attachment, will be preferred thereto | 321 |
| GRAND JURY. | |
| The authority of the grand jury to investigate a criminal charge is not affected by an order from the president directing the district attorney not to prosecute the party | 295 |
| GRANT. | |
| See, also, “Boundaries”; “Mines”; “Public Lands.” | |
| A patent for land covered by a paramount title does not vest the fee in the patentee | 1334 |
| A patent may be canceled, on the application of the grantee, where the land is lost in whole or in part | 1334 |
| The decision of the board of land com missioners on a claim within their jurisdiction cannot be collaterally impeached | 720 |
| The board of land commissioners was authorized to consider and determine the claim to land made by the Catholic bishop of Monterey by virtue of a Mexican grant to the church for religious purposes | 720 |
| From what decrees appeals to circuit court in Mexican land-grant cases are authorized under Act July 1, 1864 | 161 |
| Sufficiency of evidence to prove the execution of a Mexican land grant, where the grant is alleged to have been lost | 729 |
| The patent issued upon a confirmed Mexican grant is the final, authentic, and conclusive record of title, as against all per sons having no patent | 720 |
| Power of departmental assembly of California under the Mexican government to authorize the sale of lands | 720 1371 |
| Construction of Act March 3, 1851, passed in execution of the obligation in the treaty under which California was ceded, to protect holders of Spanish or Mexican titles | 628 |
| In the grant of land to the city of San Francisco for the uses and purposes specified in the Van Ness ordinance, the exception of such parcels as might be subsequently designated by the president (Act July 1, 1864, § 5), held, did not defeat the entire grant | 628 |
| Such act operated upon the titles conferred by the Van Ness ordinance as effectually as a patent would have done | 628 |
| A grant of land in the pueblo of San Francisco by an alcalde in 1846 to a per son deceased is void | 628 |
| An alcalde of the pueblo of San Francisco in 1846 had no authority to revoke a grant once made by him and delivered, or to mutilate its record | 628 |
| Claim of the city of San Francisco, as successor of the pueblo, to municipal lands how founded | 628 |
| The title of the city of San Francisco to certain lands held determined by the decree of the circuit court of May 18, 1865, as modified by Act March 8, 1866 | 628 |
| Ordinance No. 822 of the city of San Francisco, of June 20, 1855, confirming certain alcalde grants, held to operate as a full grant to the persons named therein | 133 |
| Claim to Mexican land grant confirmed on appeal, on additional testimony | 160 |
| Construction of grant for lands from the commonwealth of Virginia made in 1796 | 783 |
| GUARDIAN AND WARD. | |
| The court cannot decree the sale of the whole of the ward's real estate, under Act Md. 1798, c. 101, subc. 12, § 10 | 917 |
| The legislation of the state of Nebraska, as respects sales of real estate by guardians considered | 355 |
| The objection that notice was not served on infants on the appointment of a guardian ad litem cannot be taken collaterally | 1334 |
| HABEAS CORPUS. | |
| The president has no power, under the constitution, to suspend the writ of habeas corpus. Such power is vested solely in congress | 144 |
| A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against a law of the United States, except in aid of the judicial authority | 144 |
| An officer of the United States army, imprisoned for contempt in failing to make a sworn return to a writ of habeas corpus issued by a state court to produce an en listed soldier, may be released on habeas corpus issued by a federal court | 1296 |
| Under 2 Rev. St. N. Y. 566, § 32, a return to the writ issued by a state judge need not be verified by oath when made by an officer of the United States army | 1296 |
| On habeas corpus the court will inquire whether the capias was rightfully issued, and this involves the sufficiency of the affidavit | 1316 |
| HIGHWAYS. | |
| Liability of towns in Maine for injuries caused by defective highways, and conditions annexed to the right of recovery | 105 |
| Where a town is liable, under the statute, for a want of repair, and an injury is caused by the united effect of a want of repair and some other cause, the town is not liable | 105 |
| Town held not liable where plaintiff was injured by a signboard, on an awning over the sidewalk, struck by a passing vehicle, and falling on him | 105 |
| HUSBAND AND WIFE. | |
| A married woman, under the Alabama married woman's law, cannot mortgage her separate estate, however acquired or held, for her husband's debts | 503 |
| Property accumulated by the skill and energy of the husband, in engaging in real estate transactions in her name, with her money, will pass to his assignee in bankruptcy | *957 |
| Property belonging to the wife may be recovered for in an action brought by the husband, where it was given to him by her | 1098 |
| In Arkansas, in 1828, the wife could not join in an action for an injury to her property though acquired by her personal labor and exertions, or by gift, though she lived apart from her husband | 714 |
| INDIANS. | |
| The laws of the state of Kansas have no application to the mode of alienation of lands granted to the Miami Indians, so long as the title remains in the patentees | 989 |
| INJUNCTION. | |
| See, also, “Equity”; “Patents.” | |
| Equity will protect by injunction a stattory right, where the title of complainant is free from doubt | 465 |
| Where a suit in equity is merely for the enforcement of a legal right, and there is any disputable question upon the merits, it is not a proper case for a preliminary injunction | 1065 |
| Where a cause is ready for trial, an in junction will not be granted so as to stay the trial | 1073 |
| A temporary injunction cannot be is sued by a federal court, except on reason able notice to the adverse party | 930 |
| Where there is equity on the face of a bill, an injunction will not be dissolved on the coming in of the answer, unless there is a positive denial of all the material facts from which that equity arises, based on the personal knowledge of the defendant | 1337 |
| A denial on information and belief is not sufficient for that purpose | 1337 |
| It is in the sound discretion of the court to continue an injunction, even after answer, where the nature and circumstances of a case require it, and where justice will be attained by that course | 1337 |
| A preliminary injunction staying proceedings in an action at law, or enforcement of a judgment recovered at law, will be dissolved where the answer denies the whole facts alleged as constituting the equity of the bill, and no irreparable mischief will result from such dissolution | 539 |
| A party can only be relieved from the operation of an injunction absolutely prohibiting a specific act by the court granting the injunction. Subsequent legislative authority is ineffectual | 978 |
| The court may imprison for a contempt in violating its injunction | 604, 605 |
| The remedy for enforcement of an injunction bond is an action thereon. A 1372 | |
| court of equity cannot order the obligors to pay the damages sustained by reason of the injunction | 144 |
| INKEEPERS. | |
| The hotel keeper is relieve from his special common-law liability where a commercial traveler uses his room for the display of samples | 1098 |
| The innkeeper, knowing that valuable goods are thus displayed, should use reasonable diligence to protect them | 1098 |
| An innkeeper, in order to avail himself of the state statute as a defense, must show that he has literally complied with it | 1098 |
| INSANITY. | |
| Sale of a lunatic's estate in Wisconsin | 567 |
| INSOLVENCY. | |
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy.” | |
| Claim for damages for collision of craft passes to assignee under deed of general assignment for benefit of creditors under the Ohio statute | 1012 |
| Discharge under Act 1774heldnot valid, unless a copy of the justice's certificate be affixed at the door of the county clerk's office | 928 |
| INSURANCE. | |
| See, also, “Marine Insurance.” | |
| The recital in the policy that the agents have no power to waive any of its provisions, one of which is that the policy shall be void on nonpayment of premiums when due, does not refer to the first premium recited in the policy as paid | 312 |
| The sending of the policy to the insured, with directions as to executing the premium notes, and a statement that the cash premium would be called for, held a waiver of payment as a condition of the policy be coming binding | 312 |
| Acknowledgment of receipt of premium does not estop the company from denying payment, as between the company and the party for whose benefit the policy is executed | 312 |
| The insured is bound by the representations made in the application signed by him or his agent, though written out by the insurer's agent, unless it appear that the answers were not truthfully written out, and the statements were not assented to | 1027 |
| Representations in the application, by the beneficiaries of an estate, that they are absolute owners of the property, will vitiate the policy, when such representations are made warranties | 1027 |
| A tender of the premium to an agent of the company is sufficient to prevent a for feiture, where he has been in the habit of receiving the premiums without objection of the company, though the policy requires payment at the principal office | 743 |
| A request for a paid-up policy, made to an agent who had received the premiums, but was not employed by the company, held sufficient, where the company did not at once repudiate his actions | 832 |
| The company is under no obligation to give notice when a life premium is about falling due, though it has been its practice to give such notice | 743 |
| A promise by the agent to give such notice is not binding on the company unless he was authorized to make it | 743 |
| Suicide is not evidence of insanity, and, where exemption from the operation of a provision excepting death by suicide is claimed on the ground of insanity, it must be proved | 672 |
| Plaintiff must prove that the insured was moved by an irresistible insane impulse, or that his powers of reason were so far overthrown that he could not exercise them in reference to the act of self-destruction | 672 |
| “Die by his own hand,” as used in policy, held equivalent to “suicide.” | 672 |
| The policy of insurance is not alone sufficient proof of payment of the first premium | 373 |
| The liability of the general agent of a company for balance due from his sub-agents held not removed by the act of the company in receiving balances from sub-agents after removal of the general agent | 1218 |
| The acceptance of mortgages by life companies in Nebraska in 1872 as security for loans was not illegal | 703 |
| A company suing to recover back money paid for a loss is presumed to have waived all questions of law and fact as to the validity of the policy which they could have raised on paying the loss, except fraud | 218 |
| INTERNAL REVENUE. | |
| The internal revenue law of 1866 is con stitutional and valid | 263 |
| A receipt for hogshead staves to be paid at a certain price is “a note for the security of money,” within the stamp act of 1797 | 680, 1266 |
| A power to represent a creditor in bankruptcy is not subject to stamp duty after March, 1867 | 1131 |
| Accumulated profits in the hands of a bank, prior to the act of June 30, 1864, is capital, and not income to be taxed thereunder | 46 |
| An insurance company owning bank stock is not liable to be taxed on dividends received therefrom, which have already been taxed in the hands of the bank | 46 |
| The provisions bringing the income tax to a close with the year 1869 did not apply to a tax on the dividends of a railway company. The latter is an excise, not an in come, tax | 223 |
| Act July, 1870, § 14, providing for a tax on interest, dividends, etc., of corporations, did not include dividends and earnings for the last half of that year | 223 |
| The penalty of 100 per cent, on reassessment for fraudulent omissions from the re turn to the assessor (Act March 2, 1867) is not collectible if a sum not legally taxed is included in the reassessment | 262 |
| The assessor himself must find a false and fraudulent omission whereby the penalty was incurred. Merely adding the penalty, by order of his superior officer, is illegal | 262 |
| Failure of a purchaser of property leased for a distillery, with covenants to be subject to the lien of taxes and penalties, to appeal from an assessment thereon, precludes him, in a subsequent action against the collector, from showing that no tax or penalty was in fact due | 280 |
| Duties or taxes erroneously or illegally assessed and collected may be recovered back from the collector where paid under protest and with notice of an intention to test the validity of the claim | 1316 |
| JUDGMENT. | |
| Validity. | |
| A personal judgment for money or damages against one not a party is a nullity | 268 1373 |
| The common-law presumption in favor of judgments of courts of record does not apply in cases where defendant is a nonresident and did not appear, and summons was constructively served by publication | 1279 |
| In case of service by publication the record must show the facts which bring the case within the statute allowing such service. (Code Or. §§ 55, 56.) | 1279 |
| An averment in an affidavit for an order of publication that plaintiff has a just cause of action against defendant for a money demand on account is not sufficient to authorize such order. (Code Or. §§ 55, 56.) | 1279 |
| But a verified complaint on file, if it contain a sufficient statement of facts, will sustain the order | 1279 |
| The omission of the order to direct that a copy of the summons and complaint be mailed to defendant is fatal, unless it appear that plaintiff had used reasonable diligence to ascertain defendant's place of residence, and that it was unknown to him | 1279 |
| Sufficiency of affidavit of publication, under Code Or. § 69. | 1279 |
| An averment of due publication of a summons in a judgment entry which appears from the whole record to be untrue or is not affirmatively supported by the facts contained in such record is a nullity, and may be disregarded | 1279 |
| A state may authorize a judgment to be given against a nonresident owner of property within its jurisdiction for the claim of a citizen prior to seizure of such property, and without notice of the proceedings | 1279 |
| Rendition and entry. | |
| Form of judgment roll under Code Or. § 269 | 1279 |
| Where a judgment is for stealing money, the exchange is to be settled as of the day when the judgment is confessed | 1033 |
| Operation and effect. | |
| The federal courts in New York, under Rev. St. § 967, are not vested with discretionary power (Code Civ. Proc. N. Y. § 282) to order real property bound by the lien of a judgment to be exempted there from in certain cases during the pendency of an appeal from such judgment | 1119 |
| A judgment against plaintiff in a suit in a state court against an indorser of a note, on the ground that plaintiff was affected by equities existing between original par ties, held not a bar to a suit in the federal court against the maker, where a different rule obtained | 1208 |
| A judgment respecting a claim to a life insurance policy as a pledge to secure a debt, on the ground that there had been no delivery, is no bar to a bill to enforce performance of the contract to deliver the pledge and for a recovery of the proceeds of the policy | 1103 |
| A decree against plaintiff in a suit for relief from a judgment obtained on a promissory note, on the ground that it was paid, helda bar to a suit to recover back the amount of the judgment paid | 616 |
| The estoppel of a judgment is not avoid ed by the fact that an action has since been brought upon it in which defendant pleaded nul tiel record, and plaintiff took a nonsuit | 265 |
| A judgment in a suit against the sheriff to recover property wrongfully attached, where the creditor appeared and assumed the defense, is binding on the creditor in a suit for the wrongful attachment | 1052 |
| Relief against: Opening: Vacating. | |
| The fact that any interest, however small, will profit thereby, is not sufficient ground to revoke a decree; the preponderance of equity on the whole case will be looked to | 785 |
| What fraud will justify enjoining or set ting aside a judgment | 1067 |
| Matters, such as fraud, which should be pleaded as a defense, are not sufficient grounds after judgment upon which to apply in equity to enjoin process to collect the judgment | 1067 |
| Where, by defendant's own carelessness, a judgment, by clerical mistake, is rendered for too large a sum, the proper remedy to correct it is by application to the court which rendered it Injunction against its enforcement will not be granted | 1067 |
| Satisfaction and discharge. | |
| A compromise by complainant with some of several judgment debtors as to their portion of the debt does not release the others | 584 |
| In such case the other debtors are entitled to a discovery of the amount paid | 584 |
| Of different jurisdictions. | |
| Where the jurisdiction of a court of special authority appears upon the record, its judgment is of equal force as that of a court of general jurisdiction | 567 |
| The certificate of the clerk and the seal of the court are sufficient authentication of a judgment of a state court offered in evidence in a federal court sitting in the same state | 242 |
| Actions on judgments. | |
| In an action at law in the federal court, or a judgment of another court, defendant cannot set up equitable defenses | 610 |
| In a suit on a judgment lendered in an other state, the statute of limitations of the state where the suit is brought cannot be pleaded | 698 |
| JURY. | |
| The seventh amendment of the constitution, in relation to trial by jury, refers exclusively to cases at common law | 909 |
| Denial of a jury, by a justice, in a case involving over $10, is an error for which his judgment will be vacated | 284 |
| JUSTICES OF THE PEACE. | |
| A justice may have jurisdiction where the title to a chattel comes incidentally in question, as where a bond in suit is to be void if a certain chattel is not the property of a certain person | 710 |
| A debt of $50 on which interest is due is not recoverable before a justice in the District of Columbia | 283 |
| Where a debt in an amount above the jurisdiction is settled by giving separate notes within the jurisdiction, separate suits may be maintained thereon after all become due | 685 |
| A justice's judgment in an action of debt, for an amount within his jurisdiction, against the surety on a constable's official bond, is not absolutely void, though the proper remedy was by action on the bond, which was for an amount beyond the jurisdiction | 272 |
| A justice of the peace in Alexandria county, D. C., has no power to issue a cap. ad resp. or warrant of arrest for a small debt before judgment | 457 |
| Upon appeal from the justice's judgment, the cause is to be tried de novo | 446 |
| LANDLORD AND TENANT. | |
| A stipulation providing for the right of removal at the end of the term of fixtures 1374 | |
| put in by the lessee on condition only that he has performed all his covenants creates a valid lien for rent on trade fixtures annexed to the freehold, but does not apply to mere furniture | 845 |
| A lessee evicted by a third person claiming under the lessor, who fraudulently rep resented that he had title, may recover dam ages from him | 831 |
| A person who agreed to rent premises and pay the rent for another is liable, though he did not occupy the premises | 678 |
| LIENS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Maritime Liens”; “Mechanics' Liens”; “Shipping.” | |
| The parties may agree that the posses sion and use of the property may be retain ed by the debtor until the creditor shall assert his rights against it as a security for the debt | 527 |
| One having the legal title to land, half of which in equity belongs to another, can not have a debt against the latter satisfied out of the land in preference of other creditors | 699 |
| A lien given by state law for pasturing stock held waived by voluntarily surrendering possession thereof, and allowing a sale without claiming a lien | 492 |
| LIMITATION OF ACTIONS. | |
| See, also, “Adverse Possession”; “Ejectment”; “Equity”; “Maritime Liens.” | |
| Construction of the California statute of limitations of 1863 in relation to claims to real property under Spanish or Mexican titles | 628 |
| At law the Virginia statute of limitations of 20 years is applied only against a grant; but in equity it operates to bar an equitable title by analogy to a case at law | 334 |
| The statute of limitations does not run against the government | 331 |
| A tax deed which shows upon its face that legal notice of the sale was not given is void, and does not set running the statute of limitations | 668 |
| In the case of fraud the statute begins to run from the time the fraud was discovered | 518 |
| A court of equity will not relieve against fraud after 20 years from its discovery; and, when the statute is set up in bar, the bill must show when and how the fraud was discovered | 680 |
| An amendment introducing a new title affecting the interests of new parties has the effect of an original bill so far as the statute of limitations is concerned | 334 |
| The offer of terms of compromise is not sufficient to take the case out of the statute of limitations | 1296 |
| The defendant cannot avail himself of the statute of limitations upon the general issue | 1267 |
| MALICIOUS PROSECUTION. | |
| Plaintiff must prove both malice and want of probable cause | 993, 1057 |
| Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused was guilty | 993 |
| It seems that the advice of counsel is not a protection unless the party gave a full and true statement of facts within his knowledge, and acted upon it in good faith for an honest purpose | 993 |
| The existence of malice is a question of fact for the jury | 993 |
| Probable cause is a mixed question of law and fact. Whether the circumstances alleged are true is a question of fact. Whether, if true, they amount to probable cause, is a question of law | 993, 1057 |
| The record in the action in which plaintiff was held to bail, where the date of the return of the writ was misstated in the declaration, held not admissible in support of the count for damages, but admissible as evidence of malice on the other counts. | 993 |
| Plaintiff cannot set up a claim to punitive damages where he was guilty of gross fraud in the transaction out of which the charge of crime arose | 993 |
| MARINE INSURANCE. | |
| See, also, “Average.” | |
| The insured need not disclose prior insurance | 1048 |
| On insurance on goods on a voyage to Charleston, lost or not lost, general knowledge of underwriters of severe gales on the coast of Carolina will not relieve the insured from the duty of communicating a letter giving particulars of a hurricane | 891 |
| Damage to barley caused by vapor arising from other barley which was reached by sea water held not caused by “actual con tact with sea water,” within the terms of the policy | 1293 |
| Under a valued policy made without notice of a prior insurance, containing the usual clause as to prior insurance, the insurer can only be called upon for the portion of such value left uncovered by the prior insurance | 1048 |
| Where only a partial loss is claimed, the insurer cannot claim an abandonment | 1048 |
| Abandonment to the insurers and satisfaction of the policy vests insurers with all the present rights and remedies of the insured which may be presented or proceeded upon in admiralty in the insurers names | 1082 |
| MARITIME LIENS. | |
| See, also, “Admiralty”; “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Demurrage”; “Salvage”; “Seamen”; “Shipping.” | |
| The right to a lien. | |
| A maritime lien is the right which a creditor has in a thing of another, which right consists in the power to cause the thing to be sold in order to have the debt paid out of the price | 728 |
| Maritime liens cannot be created by state statute | 509 |
| An insurance premium is not a maritime lien on the vessel | 1078 |
| The master of a vessel has no maritime lien for his compensation as such | 604 |
| Furnishing timber for use in building a particular vessel gives a lien on her | 25 |
| A maritime lien exists for supplies furnished to a vessel in a foreign port, which were necessary and were furnished on the credit of the vessel, unless the necessity for such credit be disproved by proper evidence | 242 |
| A person who furnishes provisions to a vessel not in her home port may have a lien therefor, although he knows that the master has taken her on shares, and is to victual and man her | 605 |
| The presumption is that necessary sup plies are furnished on the credit of the vessel | 216 |
| Supplies furnished on the order of an agent known to represent the charterers 1375 | |
| heldnot furnished on the credit of the vessel | 214 |
| Where the owners permitted a railroad using the vessel to appoint a steward, with authority to procure supplies, held, that they thereby consented that supplies might be procured in a foreign port on the vessel's credit | 216 |
| A suit in rem cannot be maintained here for repairs made to a Canadian vessel in Canada, where the local law gives no lien | 68 |
| Priority and enforcement. | |
| An hypothecation of a vessel by her owner, to secure a pre-existing debt, which, in its origin, gave no lien on the vessel, gives no priority to such hypothecation over a prior maritime lien on the vessel | 1242 |
| The master's claim for advances for board of crew and purchase of supplies may be allowed out of the proceeds in the registry | 604 |
| Waiver: Discharge: Extinguishment. | |
| A maritime lien is not waived or extinguished by giving credit for a limited time, nor by the acceptance of a note for the amount due | 1150 |
| The discount of the note by the lienor, which he subsequently takes up, does not extinguish the lien | 1150 |
| The acceptance of a note, indorsed by a third person, where the same is returned on not being paid at maturity, held no waiver of the lien | 695 |
| Liens under state laws. | |
| The lien on a vessel arising in her home port is regulated exclusively by the local law | 1146 |
| Under the Maryland statute, there is a lien, enforceable in the federal courts, for material and labor used in repairing sails and tackle, but not for groceries | 282 |
| The remedy by proceedings in rem against vessels given by Laws Mich. 1864, p. 107, is an exercise of admiralty jurisdiction, and the act and the liens given there under are void | 569 |
| Liens under the New York statute for supplies held should be paid in the order of the filing of the libels, and not in the order of filing specifications | 452 |
| The departure of a river steamboat on her daily trip is a “leaving of the port.” within Laws N. Y. 1862, c. 482, requiring the filing of specifications of lien within 12 days therefrom | 601 |
| MASTER AND SERVANT. | |
| The master is liable for injuries to a servant from the negligence of an incompetent fellow servant, in whose employment the master did not use ordinary care | 304 |
| MECHANICS' LIENS. | |
| A mortgage recorded before the filing of a mechanic's lien is entitled to priority | 723 |
| MINES. | |
| A broad metalliferous zone having with in its limits true fissure veins, plainly bounded, cannot be regarded as a single vein or lode, although such zone may itself have boundaries which can be traced | 918 |
| Under a location of a certain number of feet along the ledge, without any distinct claim of side ground, held, that the locator was entitled to hold 100 feet on each side of the ledge, under the mining law | 918 |
| Act May 10, 1872, § 3, confirms prior locations under the act of 1866, as to all lodes which have their apexes within the surface lines of the mining claims | 918 |
| The owner of contiguous claims may form one general system, adapted and intended to work them all, and work in furtherance of the system is work on all the claims intended to be developed by it | 918 |
| Work done anywhere within the surface lines on the surface, or below the surface, on any lode within the lines extended vertically, is work on the claim, within Rev. St. § 2324 | 918 |
| Work done outside of a claim, for the purpose of prospecting or developing it, is equally available as work done within the boundaries | 918 |
| Forfeitures are odious in law, and must clearly appear before courts will enforce them | 918 |
| MORTGAGES. | |
| See, also, “Acknowledgment”; “Chattel Mortgages”; “Shipping.” | |
| The mortgagee may sue at law on his bond, and in equity to foreclose, at the same time | 836 |
| Where the trustees of a railroad mortgage are in such a position that they cannot alone properly represent the bondholders, the latter may sue to foreclose without showing a refusal by the trustees to do so | 25 |
| A receiver will not be appointed unless it clearly appears that the security is inadequate, or there is imminent danger of the waste, removal, or destruction of the mortgaged property, or the rents and profits have been expressly pledged | 836 |
| The exercise of this power depends upon sound discretion, and is governed, to a great extent, by the circumstances of each particular case | 836 |
| MUNICIPAL CORPORATIONS. | |
| See, also, “Railroad Companies.” | |
| A by-law of Alexandria, D. C, requiring the master to pay a poll tax for his journeyman, held not repugnant to the general law of the land, and authorized by the charter | 761 |
| Construction of the charter of Washing ton, D. C, in relation to the nomination and confirmation of officers | 357 |
| A person rejected by the board of alder men of Washington, D. C, on the mayor's nomination, cannot be reappointed by the mayor, in the recess of the same board, to the same office for which he was rejected by the board | 357 |
| The mere erection of a railroad bridge in a particular location in a town, after a controversy with the inhabitants, does not amount to a perpetual contract, precluding the company from changing the location of the bridge | 412 |
| Bonds made payable out of the state, without express authority of law, are not for that reason invalid, but such provision is not enforceable | 1127 |
| The recitals in a municipal bond issued to aid a plank-road company bind the city, in an action by a bona fide holder | 1127 |
| Holders of legal bonds received from a city in exchange for previous illegal obligations given for bona fide debts may recover thereon, if they had no part in the illegal issue, though they had notice of all the facts | 48 |
| Navigable Waters. | |
| See “Bridges”; “Constitutional Law.” 1376 | |
| NEGLIGENCE. | |
| An unguarded railroad tunnel in a street held a nuisance, the continuance of which rendered the receivers of the road liable for damages for an injury of which it was the proximate cause | 749 |
| A child four years old is, in law, incapable of negligence; and the burden of showing contributory negligence on the part of his parents, imputable to him, is upon the one against whom damages are claimed for an injury caused by negligence | 749 |
| The mere fact that a child four years of age strayed a distance of more than two blocks from home, at play with other children, is not, of itself, evidence of contributory negligence on the part of its parents | 749 |
| A boy of eight years, who is permitted to play in the streets, will be deemed capable of contributory negligence | 285 |
| Where a boy was killed by attempting to jump on an engine moving through a street, held, that there was no liability, unless defendant could have avoided the accident by ordinary care | 285 |
| NEUTRALITY LAWS. | |
| What equipments in our ports amount to a breach of neutrality | 651 |
| Equipment for war in a neutral port does not take place merely by alteration of two ports in repairing *he waist of a vessel previously armed | 653 |
| The carrying on from the United States of an expedition against a neutral power is an offense, though the association originated in another country | 1274 |
| It is unimportant whether the persons engaged in such a purpose engage the whole vessel to themselves, or depart from the United States as passengers | 1274 |
| Actual fitting out and arming in the United States is not necessary to subject to forfeiture a vessel in part prepared for hostilities therein | *178 |
| Proof that the vessel was fitted out and armed, or that there was an attempt to fit and arm her, with the unlawful intent to cruise against a neutral nation, is sufficient, without identifying the persons engaged therein | *178 |
| A vessel alleged to have been fitted out and armed in violation of the neutrality laws will be condemned, where the government's evidence raises a well-grounded suspicion, which claimants fail to explain | *178 |
| Evidence to acquit or condemn, in the case of a vessel arrested for breach of the neutrality laws, must, in the first instance, come from the vessel taken, the persons on board, and the examination on oath of the officers | 651 |
| On a libel for forfeiture of a vessel for a violation of neutrality laws (Act 1818), the question of ownership of the vessel is not material | *178 |
| NEW TRIAL. | |
| In detinue, a new trial will not be granted because the damages are excessive, as defendant may discharge the judgment by restoring the property | 476 |
| Affidavits of jurors cannot be received to show how the instructions of the court were received | 476 |
| NUISANCE. | |
| The use of a steam railroad lawfully constructed, in the absence of any abuse, is not a public nuisance | 332 |
| The abuse of the use of a steam railroad, if general and common to all owners of adjacent property, cannot be enjoined at the suit of an individual owner | 332 |
| OATH. | |
| A witness must be sworn in such a way as is binding on his conscience | 120 |
| The oath of a Chinaman, taken on the Bible, in the usual way, held sufficient, where, on examination, it appeared that he felt solemnly bound by it | 120 |
| PARTIES. | |
| That the trustees of a railroad mortgage file a cross bill in a suit to foreclose another mortgage does not make a bondholder under the first mortgage a party to the suit by representation | 25 |
| One who purchases pendente lite the interest of a defendant in the subject-matter of a suit does not thereby become a necessary party to the suit, and if the court has no jurisdiction of him he cannot be compelled to come in as a party | 1105 |
| Parties, at law, or in equity, may waive process and appear | 1334 |
| PARTITION. | |
| The court of common pleas in Ohio may take jurisdiction of a bill for partition in two counties, but the decree, to bind purchasers, must be recorded where the land lies | 1334 |
| PARTNERSHIP. | |
| Persons who advance money for an enterprise run in another's name, with an option to share in the profits, or to receive back their money with interest, are not partners in the business | 708 |
| Persons assuming to act as a corporation, under a corporate name, without authority of law, are liable, as copartners, for the debts of the association | 10 |
| To charge a secret partner with debts of the firm, it must be shown that the debts were contracted in the name and business of the firm, or that he had an interest in the contract or profits | 989 |
| Where the purchaser of a note made by a firm did not know of any secret partners, and the note was made for the individual benefit of those whose names appeared thereon, held, that the secret partners were not liable | 989 |
| In an attempt to form a limited partner ship under the New York statute, the contribution by the special partner of a stock of goods, together with cash, instead of cash alone, results in a general partner ship | 82 |
| The bill of an unincorporated company should be prosecuted in the names of the original partners, and not in the name of the company | 171 |
| PARTY WALLS. | |
| It is a condition annexed to the title of lots in the city of Washington, D. C, that the proprietor shall reimburse the adjoining owner a moiety of the charge of such part as he shall use of a partition wall built by him | 315 |
| The city surveyor must attend, when requested, and adjust the line of the front of the building, and his certificate is binding on the parties | 315 1377 |
| The value of the half of such part used may be recovered in an action upon the case in assumpsit | 315 |
| PATENTS. | |
| The commissioner of patents. | |
| The statute, by defining the conditions under which the power conferred to issue patents shall be exercised, necessarily excluded all others | 879 |
| Patentability. | |
| Merit or utility, however slight, will en title the inventor to a patent | 366 |
| If a device is new, and accomplishes beneficial results, the court will not gauge by any nice standard the degree of inventive genius required | 276 |
| A discovery of a new principle, force, or law, operating, or which can be made to operate, on matter, will not entitle the discoverer to a patent | 879 |
| The discoverer can only secure exclusive control of such discovery through the means by which he has brought it into practical action, or their equivalent | 879 |
| Neither the natural functions of an animal upon which, or through which, a new force or principle may be designed to operate, nor any of the useful purposes to which it may be applied, can form any essential part of a patentable combination with it | 879 |
| New articles of manufacture are not patentable, unless their production involved the exercise of invention or discovery beyond what was necessary to construct the apparatus for their manufacture or production | 384 |
| A claim to the use of two deflecting plates, one on each side of a saw, sustained, as not being a mere duplication, although a single deflecting plate had before been used | *1110 |
| A patent for abdominal supporters for well-formed persons held not anticipated on oral testimony of the construction of several supporters “of the same general character” for deformed patients | 658 |
| Two prior patents, which, taken together, would have made up the invention of the patentee, will not anticipate his invention, where neither of them alone shows the complete invention | 1001 |
| The construction of articles as experiments, never made public, and ultimately abandoned and lost, does not affect the right of a subsequent original inventor of substantially the same article to take out a patent therefore | 1034 |
| Who may obtain patent. | |
| A patentee cannot take out a new patent for the same invention until his first patent is surrendered, repealed, or declared void | 818 |
| A verdict, in a suit on the second patent, in favor of the patentee, does not avoid the first patent | 818 |
| Priority of invention is not affected by the fact that a later inventor first perfected machines for manufacturing the patented product | 540 |
| The fact that a subsequent equivalent invention makes a more durable product will not affect the question of priority | 540 |
| Prior public use or sale. | |
| The invention should not be known or used as the invention of any other person than the patentee before the application for a patent. (Act 1793, § 1.) | 818 |
| The commissioner has authority to examine and decide the question of prior public use or sale. (Act 1836, § 6.) | 935 |
| Public use while the inventor is practicing upon the invention with a view to improve it before applying for a patent does not invalidate the patent. (Act 1793.) | 818 |
| Abandonment: Laches. | |
| The withdrawal of an application, and receiving back the $20 fee, is an abandonment of the claim; and a new application will not relate back, so as to avoid the effect of a prior public use | 935 |
| An inventor is not prejudiced by a delay in applying for a patent, where he is diligently experimenting as to other forms of the same invention, and machinery to perfect it, especially as against one having notice of his claims | 540 |
| Appeals from commissioner's decision. | |
| The commissioner is the sole judge of the circumstances under which he shall furnish information and suitable references to the applicant, to enable him to correct his application. No cause of appeal is furnished by a supposed omission of his duty in this particular | 1000 |
| Validity. | |
| A patent wanting in any substantial statutory requisite is a nullity, and confers no right to the patentee | 563 |
| The patentee may embrace two improvements of the same machine in one patent | 809 |
| The patentee cannot embrace both the process and the product in the same claim | 113 |
| Extent of claim. | |
| The patentee is not confined to his summary, but the whole specification and the drawings may be referred to, to ascertain the extent of the claim | 809 |
| Where a patent is for several improvements in a machine, and each is summed up in the patent as the invention of the patentee, he is bound by his summary, and if any one of the improvements is found not to be new his patent is void | 655 |
| A claim for “the above-described new manufacture of * * *, by treating them substantially as hereinafter described,” held to be a claim for the process, and not the product | 113 |
| Repeal of patent. | |
| A suit to repeal a patent, except in cases stated in Act 1836, § 16, and Act 1839, § 10. cannot be brought either in a state court, or the federal circuit court | 153 |
| Reissue: Disclaimer. | |
| The principles governing the awarding and granting of reissues of patents, and the effect of the commissioner's decision, considered | 384 |
| Claiming for a new article of manufacture, if by inadvertence and mistake, may be cured by a reissue for a combination and arrangement of parts | 276 |
| A second reissue may be granted under Act 1836 | 873 |
| The presumption of law is that the commissioner has done his duty in granting a reissue, and the question is not open for re-examination, except on the ground of fraud | 366 |
| In the absence of fraud, the only mode of impeaching a reissue, on the ground that it is for a different invention, is by showing such difference on the face of the instrument | 276 |
| In an infringement suit, the question whether a reissue is for the same invention is one for the court, upon a comparison with the original. Matters of fact connected with the surrender and reissue are closed by the granting of the reissue | 224 |
| The recital in a reissue of a prior assignment, and the granting of the reissue to the assignee, make a prima facie case of title | 276 |
| The concurrence of a transferee of an interest for a given territory is not necessary to the validity of a reissue | 244 |
| The claims in the reissue may be broader than those in the original | 873 1378 |
| A construction or mode of operating a machine, described or distinctly referred to, but not claimed, in the original, may be claimed in a reissue | 825 |
| The surrender of a patent for a reissue is a conclusive admission that the original patent has no validity to support an action for an infringement | 563 |
| Assignment. | |
| The assignment of a patent, or the right to a patent pending, held not to include the right to an extended term | 937 |
| A transferee of the patentee's interest for a state is entitled to the benefit of a reissue, if he ratifies the same, though he did not join in the surrender. Acceptance of the reissue, and an assignment of a part interest therein, is a ratification | 244 |
| Licenses. | |
| The contracts of a patentee to share his invention with third persons are interpreted and enforced in the same manner as other legal engagements | 867 |
| A license defined, and the instrument in question held to be merely a license | 1325 |
| The mere taking of a license does not estop the licensee denying the validity of the patent | 494 |
| Infringement—What constitutes. | |
| There is no infringement where defendant produces the same result by means substantially different from the patented device; otherwise where the contrivances are substantially the same | 809 |
| Where several improvements are distinctly claimed in a patent, an action lies for the piracy of any one, although defendants have not used the whole of the improvements | 655 |
| The manufacture of certain articles capable of being used in making up certain parts of a patented combination, and with the intention that they should be so used, is not an infringement, where they are separately useful for numerous purposes | 392 |
| ——Who liable. | |
| One who purchases patented articles from a licensee, with knowledge of his having repudiated his contract with the patentee, is liable on a sale of such articles | 658 |
| ——Remedy generally. | |
| There is no right of action for an infringement occurring under the original and void patent, and before the reissue of a new patent | 563 |
| Equity will entertain jurisdiction of a suit for infringement of a patent to prevent a multiplicity of suits | 909 |
| ——Preliminary injunction. | |
| A jury trial of the alleged infringement is not a prerequisite to the granting of an injunction | 909 |
| Where the case is clear and without reasonable doubt, the court will grant an injunction without sending plaintiff to law to try his right | 909 |
| A verbal admission of infringement and a promise to desist is a strong circumstance against defendant | 875 |
| In the case of a simple mechanism, a bare inspection is sufficient on the question of infringement | 875 |
| The grant of a subsequent patent will not prevent the granting of an injunction where the infringement is clear | 875 |
| Defendants will be estopped by averments in their answer from setting up facts to the contrary by affidavits | 875 |
| When there is no danger of loss to plaintiff, and great loss will result to defendant, the case must be substantially free from doubt to justify an injunction | 822 |
| Whether defendant is fully responsible for any profits or damages which may be decreed against him is material | 822 |
| That defendant does not make or vend the patented machine, but only uses it, is also material | 822 |
| Where a motion for a new trial or an appeal taken by defendant cannot be considered as intended merely for delay, the court will await the final result before awarding an injunction | 822 |
| The court cannot ignore the rights of defendant claiming under an adverse patent because of irregularity in its issue, and assume it to be a nullity | 494 |
| Where the validity of a patent has not been adjudicated, exclusive possession and enjoyment for some time must be shown to entitle plaintiff to a preliminary injunction | 494 |
| And in such case the machine or patented thing must have been brought into use | 494 |
| Denied in the absence of proof of exclusive possession or public acquiescence, or of a trial at law | 1065 |
| Denied where the construction of the claim alleged by defendant had not been acquiesced in by the public, and the novelty of the device was shown to be doubtful | 937 |
| Denied, on defendant's giving security, where he was constructing a single machine only, and the validity of the patent and public acquiescence were denied | 829 |
| Granted where complainant's possession had been acquiesced in for a long time by the public, and for some time by defendant | 871 |
| Granted where the novelty was not disproved by the facts set up in defense, and complainant had been in exclusive possession of the monopoly for years | 301 |
| On a motion to dissolve an injunction, defendant will not be allowed to present facts showing an anticipation which he might have presented on the motion for the injunction | 1231 |
| ——Procedure. | |
| A mere licensee under a patent cannot sue, in equity, for the infringement of his rights under the patent, without joining with him, as plaintiff, the owner of the legal title | 1325 |
| Where suit is brought for the infringement of several patents for different improvements, not necessarily embodied in the construction and operation of any one machine, the bill must contain an explicit averment that the infringing machines contain all the improvements embraced in the several patents, or it will be bad for multifariousness | 1311 |
| A plea setting forth that the alleged selling, if any such was made by defendant, was made solely as agent, etc., of a person not named, held bad | 852 |
| Defendants allowed to strike out an admission in their answer of the making of certain articles as to which an injunction was sought | 728 |
| A licensee who has elected to put an end to his license, and denies the validity of the patent, cannot subsequently set up the license as a defense to a suit for infringement | 658 |
| The owner of the entire right in the territory where the infringements had taken place allowed to make a disclaimer after final hearing | *1110 |
| Costs not allowed to plaintiffs on a recovery where a disclaimer was not filed before suit brought | *1110 |
| ——Evidence. | |
| Proof showing the prior state of the art cannot be considered for purposes of anticipation when that issue is not raised by the pleadings | 276 1379 |
| The opinions of experts are admissible to determine questions of mechanical difference | 809 |
| ——Injunction and its violation. | |
| In a suit to recover the forfeiture and penalty imposed by Act Feb. 21, 1793, § 5, the court will also grant a perpetual injunction | 873 |
| Injunction will not be granted where the patent is recent, the specification obscure, and proof of infringement meager and unsatisfactory, but the court will retain the bill and require complainant to bring an action at law | 1065 |
| ——Accounting: Damages. | |
| In the case of a patent for an ornamental chain as a new article of manufacture, the patentee is not limited to the advantage derived from the use of the peculiar features of the patented chain over what would have been derived from those open to the public | 961 |
| Damages cannot be trebled in a suit in equity. (Act July 4, 1836, § 14.) | 909 |
| Various particular inventions and patents. | |
| Boots and shoes. No. 127,090, for forming heel stiffeners, construed, and held not infringed | 565 |
| Braces. No. 35,856 (reissue No. 4,187), and No. 73,279, for improvements in bit stocks and braces, held valid and infringed | 370 |
| Braces. Reissue No. 6,350 (original No. 62,232), for improvement in stocks or braces for bits and other tools, held valid and infringed | 369 |
| Brush heads. No. 98,787, for improvement, held valid and infringed | 1034, 1036 |
| Car wheels. No. 110,779, for improvement in casting car wheels, construed | 1276 |
| Chains. Reissue No. 5,774 (original No. 147,045), for improvement in chains and chain links for necklaces, etc., held valid and infringed | 959 |
| Cigar molds. Reissue No. 6,662 (original No. 155,806), for improvement, held valid and infringed | 366 |
| Circular saws. No. 10,965, for clamps for circular saws, held valid and infringed | 1108 |
| Clothes wringers. Reissue No. 2,829 (original No. 21,029), for improvement, construed as limited by prior patents, and held not infringed | 224 |
| Clothes wringers. Reissue No. 5,223 (original No. 61,680), for improvement, construed, limited, and held not infringed | 227 |
| Egg beaters. No. 23,694, for improvement, construed, and held not infringed | 604 |
| Ether. No. 4,848, for an improvement in surgical operations by the use of ether, held invalid | 879 |
| Gas meter. No. 12,535, for benzole vapor apparatus, held valid and infringed | 1001 |
| Glass cutter. No. 91,150, for improved tool for cutting glass, held valid, and in fringed | 589; contra, 592 |
| Glue. Reissue No. 4,072, for improvement in manufacture, held invalid for lack of invention | 384 |
| Hook. Reissue No. 2,166 (original No. 21,879), for an improvement in self-mousing or snap hooks, held valid and infringed | 276 |
| India rubber shoes. Reissue No. 4,977 (original No. 111,962), for an improvement, construed, and held void for want of novelty | 246 |
| Lamps. No. 30,381 (reissue No. 6,844), for improvement, held invalid | 309 |
| Oils. No. 90,284, for improved manufacture of heavy hydrocarbon oils, con strued | 113 |
| Padlocks. No. 35,030, for improvement, construed, and held not infringed | 350 |
| Petroleum. No. 49,502, for improved process for purifying, held valid and infringed | 1215 |
| Saw. No. 10,965, for improved machine for sawing thin boards, held valid and in fringed | *1110 |
| Seed drills. Nos. 30,685 and 31,819, for improvements, construed, and held not infringed | 700 |
| Sewing machines. Munson's claim for tucking gauge held anticipated by patent No. 11,615 | 1000 |
| Springs. Reissue No. 4,202 (original No. 10,280), for an improvement in combined India rubber and steel springs, held valid and infringed | 1232 |
| Telegraph. Patents to Morse, Nos. 1,647 (reissues Nos. 79 and 117), and 4,453 (re issue No. 118), and 6,420, held to cover both the result and the process, and to be valid and infringed | 871, 873 |
| Whip sockets. Reissue No. 4,071 (original No. 52,439), for an improvement in whip sockets, construed, and held not infringed | 72 |
| Whip sockets. Reissue No. 5,713 (original No. 43,858), for attachments for fastening whip sockets to carriages, construed, and held not infringed | 74 |
| Wood-bending machine. No. 14,405 (reissue No. 1,312), for improvement, construed, and held valid | 809, 825 |
| Wood pulp. No. 21,161, for improvement in reducing wood to paper pulp, held valid and infringed | 301 |
| PAYMENT. | |
| A receipt of payment by a note is not conclusive, but only prima facie evidence of payment | 695 |
| The receipt of a bond of a third person “in part pay” of a precedent debt is conclusive evidence of payment to that extent, although the obligor was insolvent when the receipt was given | 956 |
| The acceptance of a deed of land in payment of a debt bars an action for the debt; and, if the title be defective, the creditor must look to his warranty | 365 |
| Payment must be presumed as to installments due on a bond after 20 years, and may be presumed after 19 years and 10 months | 317 |
| PILOTS. | |
| It is not the mere clearance for a port, but being actually bound into it, that imposes on a vessel the obligation to pay a pilot | 1175 |
| Pilots held not entitled to fees on tender and refusal of services to vessels passing through Boston harbor, bound to Lynn and Dorchester. (Rev. St. Mass. c. 32, §§ 1522.) | 1175 |
| The inference that no pilot was employed on board a vessel which refused libelant's offer of services may be drawn from the fact that the master admitted the correctness of libelant's claim, and no evidence of employment was given | 1311 |
| PLEADING AT LAW. | |
| Proper form of declaration in assumpsit | 1102 |
| Facts stated in a defense do not amount to an estoppel unless pleaded as such | 741 |
| Form of plea of estoppel | 741 |
| A general plea of fraud is not admissible | 1033 |
| A plea which argumentatively denies a fact averred in the declaration is demurrable | 929 |
| A plea of payment referring to the instrument sued on, as a “supposed writing obligatory,” 1380 | |
| is nevertheless good, and those words may be rejected as surplusage | 1033 |
| A plea in abatement of another suit pending in the usual form need not allege that such suit was not discontinued before the plea was filed | 1317 |
| Certificate of counsel that, in his opinion, the plea is well founded, need not accompany a plea of abatement in the federal court | 1317 |
| Defendant may plead the statute of limitations at the first term after office judgment | 748 |
| In assault and battery, the plaintiff, being a mulatto, cannot, at the trial upon the general issue, be compelled to prove his freedom | 1047 |
| An averment of a contract of hiring “for a certain price” is supported by proof of an agreement to serve in consideration of a payment to a third person | 283 |
| An amendment making new parties will not be allowed | 809 |
| The court may refuse to allow an amendment by striking out the name of one of the plaintiffs in the suit | 714 |
| Amendments may be made at any time before judgment, and in some cases afterwards | 1314 |
| A misnomer may be amended after plea in abatement, the plea being the basis thereof | 1314 |
| Leave given defendant to amend, on payment of costs of the term, or a continuance, at plaintiff's option | 284 |
| PLEADING IN ADMIRALTY. | |
| See, also, “Maritime Liens”; “Salvage”; “Seamen.” | |
| Claims for wages and for moneys advanced to the use of the ship may be united in an action in rem | 31 |
| A seaman claiming both wages and moneys advanced to the ship's use may join in a libel in rem with another seaman claiming wages only, but not in a libel in per sonam | 31 |
| Remedies in rem and in personam may ordinarily be sought in one suit, where the vessel and master or owner are conjointly liable; but, by the thirteenth admiralty rule, the supreme court has forbidden the vessel and owner to be joined in a libel for wages | 31 |
| Pleas or exceptions in admiralty need not embody the formalities required in pleading at common law or in equity, but they must set forth the matter in dispute in perspicuous and definite terms | 1253 |
| The allegations and proofs must coincide. The court cannot hear evidence not in accordance with the issues | 878 |
| Amendments to libels for forfeitures in admiralty, in substance or in form, are within the discretion of the court at any time | *178 |
| The court will allow amendments upon terms, even upon the hearing of an appeal | 878 |
| PLEADING IN EQUITY. | |
| Statement of, locality or place of business of the corporation complainant held not necessary | 1222 |
| Bill not sworn to, praying injunction and discovery under oath, held sufficient on demurrer | 1222 |
| Under a prayer for general relief, such relief may be given as the pleadings and proofs warrant, though complainant is not entitled to the relief specifically prayed for | 692 |
| Where a plaintiff in equity, instead of setting down the defendant's plea for argument, replies to it, he admits its sufficiency as a defense, if the facts it alleges shall be established | 1105 |
| Defendant, in his answer, cannot introduce new matter in the nature of a cross bill, and require plaintiff and others under whom he claims to answer it | 762 |
| A defect in suing respondents as a partnership, when in fact they are a corporation, may be cured by amendment | 1276 |
| PLEADING UNDER STATE CODES. | |
| A pleading of a county, not subscribed by the proper district attorney, is not duly subscribed, and may be stricken out of the case. (Civ. Code Or. §§ 79, 103) | 741 |
| The statement of new matter in the answer must be concise, and must constitute a defense to the action. The ultimate facts, and not the evidence of them, must be stated. (Civ. Code Or. § 316.) | 741 |
| PRACTICE AT LAW. | |
| The court will not enforce the private agreements of counsel | 678 |
| A bank will not be required, on motion, to produce books and papers, when it does not appear that a subpoena duces tecum, directed to the proper officers of the bank, would not suffice | 53 |
| A circuit court cannot compel compliance with an order to produce books or writings, but, in case of noncompliance, may give judgment as by default | 53 |
| Under peculiar circumstances, the court refused to stay proceedings in an action on a stay bond given in a state court, unless defendant instituted a plenary auxiliary suit in equity to restrain the prosecution of the action, so that a review might be had | 59 |
| The federal circuit courts have no power to grant a peremptory nonsuit, against the will of plaintiff | 304 |
| Upon a demurrer to evidence, every fact which can be reasonably inferred from the evidence is taken as admitted | 304 |
| PRACTICE IN ADMIRALTY. | |
| A cross action cannot be maintained which seeks a retrial of matters already adjudicated between the parties | 1253 |
| A party seeking to set aside proceedings against him must embody all objections presumably known to him at the time in one application | 1314 |
| It may be shown, in opposition to a motion to set aside all proceedings for want of verification of the libel, that the oath was in fact regularly and duly administered, though the clerk's name was not sub scribed | 1314 |
| On a libel to recover possession of a vessel, where respondent appealed, the court refused leave to bond the vessel, but directed that the decree be executed unless the appeal was perfected in two days | 954 |
| On a dispute between the master and owners of a British vessel, the court ordered possession to be delivered to the owners on payment of a sum to secure the payment of any sum found due to the master on a suit to be instituted by him within 20 days | 954 |
| In giving bond to relieve property taken by a clause of foreign attachment, defendant must pay costs of the motion before he can defend on the merits | 290 |
| Where property is attached in a suit in personam, after return of “Not found,” respondents must pay costs of the attachment before they can defend on the merits | 290 1381 |
| Proper procedure where cargo is arrested under a claim of a lien on the freight due for its transportation | 586 |
| Under an order of reference to ascertain the amount, if any, due libelant, entered by consent, after defendant's default, defendant can only contest libelant's claim | 501 |
| A report of a commissioner as to the amount of libelant's claim is not objection able, in omitting a detail of the allowances, unless defendant has demanded a specification | 501 |
| In a suit upon stale claims, not resting upon express contract, the court, in rendering a decree for libelant, may refuse interest | 503 |
| PRACTICE IN EQUITY. | |
| On a motion to send to a jury issues arising on a petition against a receiver for injuries causing death, the court may determine whether the case is one for damages, and, if it finds adversely, may finally dismiss the petition | 285 |
| Where a decree is satisfied, the execution thereon will be arrested on motion, without a new bill | 584 |
| PRINCIPAL AND AGENT. | |
| See, also, “Factors and Brokers”; “Master and Servant.” | |
| Contract of insurance company with agent construed in relation to right to discontinue the agency, and the right of the agent to commissions on future premiums | 1073 |
| Persons employed to charter a vessel, according to specific directions, held to be special agents, without power to bind their principal to a different contract | 62 |
| A merchant, knowing that the supercargo of a vessel is the agent of several shippers, having separate interests, cannot take from him cargo of one shipper in payment of the debt of another | 78 |
| A merchant in the habit of effecting insurance for another, and neglecting to do so when ordered, is himself liable for the loss, as an insurer, and is entitled to the premium | 829 |
| PRINCIPAL AND SURETY. | |
| A bond executed in blank by the surety, and subsequently filled in by the principal, is binding in the hands of an obligee without notice | 1079 |
| An agent's bond is not invalidated by being left blank in regard to the place of agency | 1079 |
| If an agent gives a trust deed to secure payment of a defalcation, the cancellation of the deed upon subsequent payment in full of that defalcation would not affect the agent's surety on a subsequent bond | 1079 |
| If the agent, at the time of the signing of the bond, had moneys in his hands which he ought to have reported as collected, but had not, they would come within the condition of the bond | 1079 |
| In order for the surety to escape liability on the ground of existing irregularities and defalcations of the agent, it must be shown that these were known to the principal | 1079 |
| New sureties are not responsible for prior defalcations, unless the conditions of the new bond shall embrace them | 1120 |
| When a question arises between liabilities of sureties on different bonds of different dates, the general doctrine of the application of payment does not apply | 1120 |
| The government cannot apply money received by a receiver of public moneys, and paid over, after the date of the bond, in discharge of a previous defalcation, to the prejudice of the new sureties | 1120 |
| The creditor, having separate obligations of the principal and the surety, may pursue separate remedies against them at the same time | 1067 |
| A mortgage pledge or lien received by the surety to secure him may be enforced by the creditors, where both principal and surety are insolvent, and the latter has not been released | 783 |
| The surety is absolutely discharged by a change in the terms of the contract without his consent, even though such change be to his advantage | 352 |
| PRIZE. | |
| The running of a neutral vessel into a blockaded port, of which its owner had due notice, subjects her to forfeiture, regardless of the instructions of the owner, or her intentions | 1154 |
| A neutral owner is concluded by the act of his agent in charge, in allowing the vessel to be employed by the enemy | 1153, 1154 |
| A transfer of property to a neutral by an enemy in time of war, or in aid of a contemplated war, is illegal, as in violation and fraud of vested belligerent rights | *155 |
| If French privateers, duly commissioned, make lawful captures on the high seas, sales by them in our ports cannot be prevented | 650 |
| Admiralty has no jurisdiction of a libel for the restoration of a vessel belonging to a subject of a neutral nation, captured by an armed vessel of another nation within five miles of Port Henry, as taken within our territorial jurisdiction | 942 |
| Property seized as prize of war under the law of nations is discharged from all latent liens or incumbrances | 1183 |
| No equity of lien or claim, however urgent, held by innocent third parties, is allowed to prevail, in a prize court, against property seized while in use by a belligerent | 1153 |
| One-eighth of the vessel being condemnable in any event, the libelants have a right to enforce their remedy against her as an entirety, whether they retain or remit the proceeds | 1154 |
| A claim and answer in a prize suit cannot put in issue anything but the question of prize or no prize | 1153 |
| Collateral subjects can be controverted in prize cases only by means of pleadings and further proofs, specially authorized by the court after a decision on the first issue | 1153 |
| Case allowed to stand over for six months for additional proof, where no witnesses were sent in with the vessel, and no proof was made of violation of blockade | 1308 |
| The court will take judicial notice that a shipper from a certain neutral port is a person shown by its records to be actively engaged in running the blockade | 446 |
| The intentional mutilation of a log book is a suspicious circumstance, which cannot be overcome by doubtful evidence | *155 |
| On motion for the sale of a cargo as perishable, the judgment of the prize commissioners will control, unless overborne by evidence produced | 1179 |
| Fees in prize causes, under Acts Feb. 26, 1853; March 25, 1862; July 17, 1862 | 122, 1187 |
| A counsel employed by the captors, not authorized or recognized by the secretary of the navy, is not entitled to his bill of costs out of the prize fund | 1181 1382 |
| An armed merchant vessel, having no commission from the United States, though present at and co-operating in a capture, is not entitled to share in the proceeds. (Acts March 25, 1862; July 17, 1862.) | 121 |
| The proceeds of captured property belong exclusively to the government, and can be distributed or allotted only according to direct and positive authority of law | 121 |
| Part of vessel condemned, under Act July 13, 1861, § 6, as belonging to a citizen of the state in insurrection | 1272 |
| Vessel and cargo condemned for an attempt to violate the blockade | 446 |
| Vessel and cargo condemned as enemy property, and for a violation of the blockade | 63, 121, 1344 |
| Vessel and cargo condemned for an attempt to violate the blockade, and for being engaged in transporting to an enemy port articles contraband of war | 1180 |
| Vessel and cargo captured as enemy property, and for attempt to violate blockade, released. (Reversing 155.) | 159 |
| PUBLIC LANDS. | |
| See, also, “Grant”: “Mines.” | |
| Land laws of North Carolina, under which Tennessee titles originated | 518 |
| Act March 2, 1807, which prohibited entries from being made on lands which had been surveyed or patented, does not protect void surveys or patents | 331 |
| Subsequently to the cession of the Virginia military district, the state of Virginia had no right to issue a patent for land within it | 331 |
| A settler under the Oregon donation act has a present grant, by force and operation of such act, from the date of his settlement, or from the date of the act, where the settlement was prior thereto | 543 |
| On the death of the settler, after complying with the act, and before issue of the patent, the remainder vests in his children, by purchase, as donees of the United States | 543 |
| Plaintiff, claiming under a warrant and survey of Pennsylvania lands, must prove payment of the purchase money to the proprietors, or to the state, to recover in ejectment | 378 |
| QUIETING TITLE—REMOVAL OF CLOUD. | |
| Equity has jurisdiction to remove a cloud upon the title to real estate, where there is no adequate remedy at law | 884 |
| A void tax deed, which the statute does not make prima facie evidence of the regularity of the assessment and sale, does not cast a cloud upon the title | 475 |
| RAILROAD COMPANIES. | |
| See, also, “Carriers.” | |
| Unless provision is made therefor in the charter, a railroad cannot be consolidated with another, against the objection of a single stockholder | 930 |
| The fencing of a railroad in a city with gates at public crossings is a regulation for public safety, and any incidental inconvenience is merged in the superior interest of the public | 332 |
| The mere fact that a spark from a locomotive enters the window of a building, and sets it on fire, does not render the railroad company liable for the damage, but plaintiffs must prove that the company was negligent in the use of its engine | 1070 |
| The company is liable only in case it fails, in using its engines, to use the diligence which good specialists in this department are accustomed to exercise | 1070 |
| Construction of the charter of the Hannibal & St. Joseph Railroad Company, as to the taxation of its property | 684 |
| Act Mo. March 31, 1868, relating to the discharge of the state's mortgage on the Pacific Railroad, held not unconstitutional, as a special law, or as relating to more than one subject | 1017 |
| Railroad mortgage trustees may maintain a bill in equity to enjoin an illegal proceeding which will injure the value of the bonds, or a bill to have settled a claim of priority with another mortgage, under which an irredeemable sale is about to be made | 1017 |
| Legislative authority to subscribe to railroad stock, and borrow money therefor, gives power to issue bonds to pay the subscription | 407 |
| Mere irregularities in form, in respect to an election on the question of subscribing to aid a railway, does not affect the validity of the bonds issued, in the hands of innocent purchasers | 64 |
| Bonds issued by a town to aid the Illinois Grand Trunk Railway, under Act Ill. March 25, 1869, held valid, in the hands of innocent purchasers, though issued by the supervisor and clerk, and though the election was held by the ordinary judges of election, instead of a moderator | 64 |
| Proper proceedings for the issue of railroad aid bonds, where proceedings were commenced under an old act (Laws N. Y. 1869, c. 907), and continued under a new one (Id. 1871, c. 925), passed during their pendency | 1002 |
| The objection that the petition for the issue of railroad bonds did not give the court jurisdiction, because of irrelevant conditions therein, held, could not be raised in an action on the bonds issued on the determination of such court | 1002 |
| Where the petition sufficiently conforms to the statute to call for the exercise of judicial judgment, error in the court's determination cannot affect the validity of the bonds | 1002 |
| A town, having received and retained stock which was issued in exchange for its bonds, cannot raise the objection that the bonds and coupons were not made payable at the times directed by the statute | 1002 |
| It would seem that when municipal railway aid bonds are delivered to a third person, to be delivered to the company on performance of conditions, the municipality should bear the loss from any premature or irregular delivery thereof by him | 64 |
| The bona fide purchaser for value, and before maturity, of negotiable railway aid bonds, issued under a special statute by the proper officers, which recite that they were issued pursuant to law, may recover thereon, though the conditions and limitations imposed by the statute were not in fact complied with | 306 |
| As against bona fide purchasers of railway aid bonds, which recite that they were issued in conformity with law, the city is estopped from showing that only a minority voted for the subscription, and that the question was not properly submitted | 407 |
| REAL PROPERTY. | |
| See, also, “Adverse Possession”; “Boundaries”; “Deed”; “Ejectment”; “Grant”; “Public Lands.” | |
| Taxes on land, paid by defendant while holding under color of title, in good faith, 1383 | |
| adversely to plaintiff, in an action for damages for withholding possession, are a proper subject of counterclaim | 1291 |
| Sufficiency of a counterclaim for the value of improvements made by defendant, in a suit for wrongfully withholding possession. (Civ. Code Or. § 318) | 1291 |
| Defenses in such suit to claim of damages for waste | 1291 |
| REFERENCE. | |
| The referee may disregard all such formal defects as might be amended if the case were tried in court | 1122 |
| The award must be sufficiently specific to enable the court to separate what was, from what was not, awarded, within the submission | 1122 |
| A general award of a specific sum, without specifying the items of which it is composed, is good, in point of form | 1122 |
| The referee, in an action of covenant, is the final judge of the lawful rule of damages | 1122 |
| The court has no power to grant a new trial after judgment on a reference, though it was stipulated that judgment should be entered the same as if the cause had been tried by the court | 1262 |
| RELEASE AND DISCHARGE. | |
| A release given to one holding the relation of spiritual adviser held to be of no effect | 1139 |
| REMOVAL OF CAUSES. | |
| Right of removal. | |
| In a case of diverse citizenship, all of the plaintiffs or all of the defendants must join in the petition, unless there is a separable controversy. (Act 1875, § 2.) | 1239 |
| The removal act of March 2, 1867, although repealed by the Revised Statutes, is substantially re-enacted therein | 449 |
| Time for removal. | |
| Under the constitution of the United States, causes may be removed to the federal courts from the state courts after as well as before judgment | 1061 |
| Lapse of terms, while a reply is wanting to complete the issues, does not bar removal by the parcy not in default. (Act 1875.) | 261 |
| In determining at what term the cause could first be tried, a term prior to the passage of the law is not to be considered. (Act 1875.) | 40 |
| The application may be made after a new trial on the merits has been granted, and before the new trial has been commenced | 449 |
| Proceedings to obtain. | |
| The president, and perhaps the general manager, of a railroad corporation, is prima facie entitled to make the affidavit for removal | 449 |
| Effect of removal: Subsequent proceedings. | |
| The filing of a petition for removal is no waiver of a fraud in procuring service of process | 948 |
| Where property was fraudulently decoyed within the jurisdiction of the state court, and seized on a writ of replevin, the service may be set aside on motion, where the case is at once removed | 948 |
| An action at law removed when at issue proceeds on the same pleadings after removal | 40 |
| The questions whether the removal is in violation of the constitution, and whether the case is one arising under the constitution, etc., may be raised at the trial | 1061 |
| REPLEVIN. | |
| Replevin lies against any one in whose possession personal property unlawfully taken may be found, except law officers who have possession by virtue of legal process | 1040 |
| Where goods taken in execution are replevied by a third person, the court, upon return of the writ, will order a return of the property upon the usual retornohabendo bond | 1046 |
| Suit held discontinued by nonappearance of defendant at the return of the writ, through neglect of his attorney, and remstatement not allowed | 523 |
| Where the suit is discontinued through operation of law, the goods are no longer in the custody of the law, and defendant is not guilty of contempt in taking possession of them | 523, 524 |
| Possession for 20 years is prima facie evidence of good title | 524 |
| The nonpayment of the damages found by the jury is a breach of the condition of the replevin bond, upon which an action may be maintained | 700 |
| RULES OF COURT. | |
| Rules of practice adopted by the court do not control its discretion so as to deprive it of power to secure the trial of causes on their merits, on proper showing | 1076 |
| The rules of practice in state courts adopted by legislative act are rules of practice in the federal courts, by force of Rev. St. § 914, and the federal judges are de prived of discretion over them | 1076 |
| SALE. | |
| The title does not pass where a person receives goods to be paid for at the in voice price when sold by him, with the right to return those unsold at their invoice price | 109 |
| Where the market in certain goods is subject to sudden and great fluctuations, an acceptance of a proposition by telegraph, after a delay of 24 hours, is not within a reasonable time | 447 |
| A sale of a chattel is void as to creditors unless the possession accompanies and follows the bill of sale | 698 |
| On the sale of a machine ordered for a particular purpose, a warranty is implied that the machine is fit for such purpose, unless the seller, by express contract, relieves himself of responsibility | 670 |
| Under an agreement to rescind the contract, where the goods have been delivered, the contract is not completely rescinded until the redelivery of the goods | 351 |
| Unliquidated damages for breach of warranty of the soundness of a horse cannot be set off against a note given for the purchase price | 838 |
| In an action for goods sold, defendant may give in evidence, in mitigation of dam ages, that the goods were of a quality in ferior to what they were represented to be at the sale | 351 |
| SALVAGE. | |
| Right to salvage compensation. | |
| The property must have been in fact I saved by the parties who make the claim | 640 1384 |
| The officers and crew of public armed vessels are entitled to salvage for personal services, but at less rates than other persons | 962 |
| No claim for salvage can be maintained by the crew of a vessel upon the ground that by their services she is brought through a storm into port, sound in hull | 326 |
| The passengers on a steamer injured in a collision went aboard the other vessel, but the officers and crew stayed about the wreck, in small boats, and subsequently went aboard, and saved the passengers' effects. Held not a salvage service | 161 |
| Compensation for extraordinary exertion, for saving passengers' effects, will not be decreed where there is a presumption, against the wrecked vessel, of fault, for the collision | 161 |
| On the surrender of a vessel in peril to the master and crew of another, the contract with her pilot is dissolved, and he may render salvage services | 640 |
| Troops carried on a ship under contract with the government, held entitled to salvage for staying by vessel, and assisting in saving her from a total wreck, after they might have escaped on coming near shore | 117 |
| No salvage will be awarded for saving the United States mails, though the service is in itself meritorious | 35 |
| No distinction can be made between the boat and cargo | 640 |
| Salvage compensation may be awarded for services rendered to a vessel in distress, though she is in no imminent peril of loss | 925 |
| Salvage allowed upon recapture of a ransomed ship, where the ransom bill declared that the sum agreed upon should only be payable upon the arrival of the vessel at her port of destination, and she never arrived there | 654 |
| Towing an unmanageable vessel into smooth water, and there hanging her rudder, thus making it possible to navigate her, is a salvage service | 391 |
| The drawing of a boat off when aground is not a salvage service, where there was no peril | 640 |
| Pilotage services rendered to a vessel flying a signal of distress, whose officers and crew save one, were sick with fever, held entitled to salvage remuneration | 669 |
| A corporation organized to perform salvage services, employed by the owners of a vessel which had gone ashore in a fog, to relieve her from peril, held not entitled to salvage compensation, but to a reasonable compensation | 777 |
| Forfeiture of salvage. | |
| Embezzlement or a fraudulent concealment of any of the goods saved works a forfeiture of the salvage of the guilty party | 962 |
| The negligence or misconduct of the crew will not work a forfeiture of the share of the vessel, where the owner is innocent, and valuable salvage service is rendered, except in the case of wrecking vessels | 962 |
| Slight negligence in taking care of the property saved diminishes the amount of salvage, while gross negligence works a total forfeiture | 962 |
| Salvage claimed for saving passengers refused to owner of wrecking vessel because of its leaky condition, and to crew because of their intoxication at the time when their services were needed | 962 |
| The fraudulent employment by a salvor of an unnecessary number of assistants in order to magnify the importance of the services should cause a forfeiture of all compensation | 925 |
| The fraudulent conduct of the masters of both vessels, in appropriating and concealing part of the property saved, will not defeat the claim of the salvor crew | 484 |
| The owner of a salvor vessel is not liable for loss or damage caused by the unseaworthiness of his vessel, in the absence of fraudulent misrepresentations or concealment, except in the case of vessels engaged in the wrecking business | 962 |
| Amount. | |
| Rules governing the rate of salvage | 640 |
| In fixing the amount, the number of salvors necessary to perform the services may be considered, but not a greater number actually employed | 925 |
| Other things being equal, the total award of salvage should vary with the degree of peril from which the property was saved | 925 |
| To constitute a derelict, the thing found must have been deserted or abandoned | 640 |
| The abandonment of a steamboat by the master to the care and protection of the master and crew of another vessel, for the purpose of procuring assistance and safety, is not a case of derelict | 640 |
| Vessel held derelict where the master and crew, thinking she had sunk, gave up pursuit of her, though, when they first left her in peril, they expected to return | 1184 |
| From 5 to 55 per cent, allowed for saving different portions of cargo of shipwrecked | 962 |
| 40 per cent, awarded on cargo, 6 per cent, on specie, and 15 per cent, on surveyor's instruments, the specie and surveying instruments having been in no great danger | 35 |
| $2,250 allowed for towing to Sandy Hook brig rigged with jury masts, discovered 175 miles from New York, valued, with cargo, at $18,500 | 451 |
| 20 per cent, allowed salvors on a gross valuation of $207,000 | 478 |
| 30 and 50 per cent, allowed on different Portions of cargo valued at $56,093 | 1201 |
| 30 per cent, allowed on undamaged cargo, and 40 and 50 per cent. on damaged cargo, and all of certain other portions saved by diving | 478 |
| 45 per cent, allowed on a net value of $4,560 | 1184 |
| One-half allowed where a portion of the crew of the salvor vessel went on board an abandoned vessel and brought her to port after great peril and exertion | 738 |
| Remedies for recovery. | |
| An action for compensation for salvage services rendered to a vessel cannot be maintained in personam against the master unless it was performed for his benefit | 326 |
| Several libels filed against the cargo saved will be joined and considered as one suit for the purposes of awarding salvage | 478 |
| Salvage expenses are to be apportioned among vessel, cargo, and freight, in proportion to their values, where the labor was carried on with a view of saving both vessel and cargo | 962 |
| Where the vessel is lost each article of cargo is charged with its own particular expenses of saving | 962 |
| Costs and charges must be paid by the property saved, and apportioned among the claimants according to their respective interests | 1185 |
| The refusal of the salvor vessel to deliver up the towing chain of the salved vessel, on demand, will subject its owners to costs | 451 |
| Apportionment. | |
| Where the consorted vessels are amply sufficient to save the cargo and materials of a stranded vessel, a wrecking vessel subsequently arriving is not entitled to come into the consortship | 436 1385 |
| Salvors who save life, but no property, will share with those who save property, according to the merits of the service | 962 |
| Where the owner under a charter party is to equip, victual, man, and sail the ship, he is the owner for the voyage, and entitled to salvage earned by the ship, unless the deviation and delay were authorized by the shipper | 1185 |
| The agreement by the master, for a specific sum, to victual, man, and navigate the vessel under the direction of the owner, does not make him owner or part owner during the voyage | 1185 |
| Right to property or proceeds. | |
| Neither party is of right entitled to have a delivery of the property on bail, and the vessel owner is not in default in waiting for the regular termination of the salvage proceedings | 1185 |
| The court, after decreeing salvage, may refuse to restore the ship and cargo to the master, if the interests of the owners and consignees seem to call for such refusal | 649 |
| Money given, even in charity, by salvors having salved property in their possession, to officers of the wrecked vessel, may be recovered by the owners and insurers | 47 |
| SEAL. | |
| The seal of a notary must bear his name and show his official character | 1268 |
| SEAMEN. | |
| Protection and relief. | |
| Hospital money is to be charged on unforfeited wages only pro rata in proportion to the whole voyage | 21 |
| The contract of shipment. | |
| Act July 20, 1790, relating to the wages of seamen with whom no agreement in writing is made, does not apply to seamen upon tugboats | 375 |
| The rate of wages for the previous year will be taken to be the measure of wages where the seaman shipped without an agreed rate | 375 |
| The vessel is liable for the wages and the care and cure of a seaman injured, while in the discharge of his duty, by the neglect or carelessness of an officer of the boat | 1117 |
| Where a sickness began after the seaman entered the service, though before he signed articles, he is entitled to his wages | 1305 |
| It is no objection to his claim that the sickness may have had its origin in some previous injury or infection, not occasioned by his own fault, provided he has acted in good faith, and without fraudulent misrepresentation or concealment | 1305 |
| Seamen who ship in a leaky vessel, to help pump on her homeward voyage, can not rightfully abandon her, even if the leak increases, if she was seaworthy when she left port | 894 |
| On a voyage of a leaky vessel from Cape Town to New York, held, that sailing for Pernambuco to take advantage of trade winds and smooth seas, and for repairs, was not a deviation | 894 |
| What deviation from the original voyage will justify seamen in demanding their discharge | 721 |
| A second mate, rightfully displaced from heading a boat in the whale fishery, is bound to perform other duty, and, upon his refusal to do so, may be punished for disobedience | 814 |
| A seaman shipping “by the run,” or “by the voyage,” is entitled to subsistence from the vessel while detained in an intermediate port by stress of weather, but he is not entitled to extra compensation | 326 |
| Conduct of master or mate in respect to seamen. | |
| A second mate who contumaciously refuses to perform duty may be removed from the cabin to the forecastle | 814 |
| The master may inflict corporal chastisement for insolence or disobedience to his reasonable commands | 258 |
| A saucy retort of the second mate held no justification for the master's violently assaulting and inflicting an injury upon him | 814 |
| A receipt for 25 cents “for assault and battery in full of all dues and demands,” can only operate as a release where it appears that the settlement was fairly made | 516 |
| Wages—Right to. | |
| The master cannot bind the owners by an arbitrary increase of wages | 1305 |
| The law maritime will not sustain a suit for wages, by the legal representatives of a seaman, beyond the time of his death, when the engagement was by the month | 1243 |
| A seaman who ships for a voyage, concealing from the master a long-standing disease, which incapacitates him for labor, is not entitled to wages | 929 |
| The case of a French seaman will be determined by the marine law of France | 721 |
| Wages will be decreed on a libel by a French seaman against a French vessel which has changed her voyage from that for which he contracted | 721 |
| Where a seaman, on trial, shows want of fidelity or capacity, he may be disrated, and his wages reduced | 515 |
| An advancement to a position having a higher rate of pay entitles the seaman to such rate, though he shipped at a less rate | 515 |
| The owner is liable for the two months' wages under Act July 20, 1840, on a discharge by the United States consul in a foreign port without payment of three months' wages or an official entry upon the list of the crew and the shipping articles | 437 |
| ——Remedies for recovery. | |
| An action will lie against a foreign vessel for wages of an American seaman | 1157 |
| Seamen on board a ship of war or vessel belonging to a sovereign independent state cannot libel the vessel for wages due | 574 |
| A seaman who has not contracted to look to the personal credit of the master has a lien for his wages, though he knew the master sailed her on shares | 606 |
| A contract to sail a vessel in partnership for a share of the earnings gives no right in rem for wages | 406 |
| The lien of the crew for wages cannot be affected by the assumption of a third person as master by consent of the owner | 586 |
| The pledge of freight to a third person cannot displace the seamen's lien for wages | 586 |
| The court has no power to require other seamen to come in and join as complainants in a libel for wages by one. (Act 1890, c. 56. § 6.) | 1325 |
| Where the master has admitted a balance due, and subsequently pleads payment, he has the burden of establishing it | 1157 |
| Section 6 of the act of 1790, with respect to the recovery of wages, applies only to the classes of vessels enumerated in section 1 | 1093 |
| The proceedings by summons to the master (section 6) are cumulative and optional, and the party may resort to an attachment in the first instance | 1093 |
| Wages decreed upon the master's certificate that they were due, though the vessel was in port not earning freight | 457 |
| ——Deductions: Extinguishment, etc. | |
| Wages are not forfeitable for slight neglect or disobedience. There must be either 1386 | |
| habitual neglect or disobedience, or some act of a heinous and aggravated nature | 15 |
| A sailor deserting before the voyage is completed, and never attempting to regain the vessel, held to forfeit all wages under the maritime law | 120 |
| Disorderly and mutinous conduct in refusing to do duty held not to forfeit previously earned wages | 894 |
| It is not disorderly or mutinous conduct to apply in a body to the officers to put back to port, where a staunch vessel leaks four inches an hour | 894 |
| After application to put back to port, where the vessel was leaky, the voyage was continued on the master's promise to sight a certain port and put in, if necessary. Held, that his failure to sight such port did not justify the crew in refusing to do duty | 894 |
| A staunch vessel, with a full crew, which does not leak to exceed four inches an hour, held not unseaworthy | 894 |
| A disobedience in refusing to do duty under a claim of deviation, where the seaman was subsequently subdued to the authority of the ship, held no ground of forfeiture | 894 |
| If the shipping articles prohibit traffic by the seamen, under forfeiture of wages, yet the master may remit a forfeiture incurred thereby | 15 |
| Thorough repentance, apology, and subsequent exemplary diligence and obedience authorize the court to remit a forfeiture | 15 |
| Forfeiture by an offense applies only to wages previously earned | 15 |
| Wages advanced at the commencement of the voyage are not forfeitable by misconduct so as to be chargeable on wages subsequently earned. But money advanced on the voyage for clothes, etc., and not stipulated for, should be a charge on the unforfeited wages | 21 |
| A pardon by the master is a, reinstatement of the right to wages | 15 |
| SEDUCTION. | |
| An action upon the case will lie for seduction of plaintiff's daughter, whereby he lost her services | 954 |
| In such action plaintiff may give evidence that defendant promised to marry the daughter, as a means of seduction | 954 |
| SET-OFF AND COUNTERCLAIM. | |
| Credit for commissions claimed by an insurance agent from the company cannot be allowed a guarantor of the agent's note in a suit at law. Such claim could only be made available in a suit in equity on an accounting | 1081 |
| A counterclaim is substantially a cross action, and should contain nothing but the facts necessary to constitute it; and if any other defense is inserted therein it may be stricken out | 1291 |
| SHIPPING. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Carriers”; “Collision”; “Demurrage”; “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage”; “Wharves.” | |
| Public regulation. | |
| A prosecution for a penalty under Act July 4, 1864, § 3, regulating the carriage of passengers on steamships, etc., must be by action of debt, and not a libel in rem | 1176 |
| Revenue laws are those laws only whose principal object is the raising of revenue, and not those under which revenue may incidentally arise | 1176 |
| The bond given for the return of the crew (Act Feb. 28, 1803) does not apply in the case of a vessel sold abroad which does not return to the United States | 612 |
| Such bond does not extend to cases where the seaman is lawfully separated from the ship, or is separated without fault of the master or owner | 612 |
| A forfeiture for obtaining an American register for a foreign vessel under a false and fraudulent statement is not defeated by a subsequent sale to a bona fide purchaser | 607 |
| Act July 18, 1866, is not an act relating to the customs, within the meaning Act March 2, 1867 | 608 |
| The proceeds of a forfeiture under Act July 18, 1866, are to be paid directly by the court, one-half to the collector of the port for the use of the United States, one-fourth to the informer, if any, and one-twelfth each to the collector, surveyor, and naval officer | 608 |
| Title to vessel. | |
| An individual part owner of a vessel has no power, because of such relation to the others, to bind them in relation to matters extra the necessary preservation of the property itself | 615 |
| The master. | |
| Owners of a chartered vessel may dismiss the master before completion of the voyage, without showing cause | 645 |
| The master may contract for the employment of the vessel under circumstances of necessity | 1254 |
| In cases of necessity arising during the voyage, the master's acts are binding upon all parties | 490 |
| A master acting as general agent for his wife, who is part owner, has no interest in her share, whereby he may bind the vessel for the premium of a policy of insurance taken out in his own name | 25 |
| The master is agent of the cargo as well as the ship, where the vessel is found unable to proceed from a port of distress | 1254 |
| The master may hypothecate vessel and freight in a foreign port for advances necessary for repairing and provisioning the vessel, if such advances cannot be procured on the credit of the owner | 1049 |
| The taking of a draft on the consignees for the amount of the advances, which was afterwards protested for nonpayment, held a waiver of the lien, if any ever existed | 1049 |
| The master may sell a part or hypothecate the whole of cargo to raise funds for repairs | 1254 |
| A sale of the cargo in a port of distress to procure funds for repairs is unjustifiable where the master made no effort to procure funds by hypothecation of the vessel or other maritime contract | 1116 |
| In such case the shipper's damages are to be measured by the value of the cargo at the place of shipment, together with all expenses and interest from the time of shipment | 1116 |
| The fact that the master of a British vessel claimed a lien on her under the English law is no ground for his refusal to deliver the vessel to her owners | 954 |
| A draft given for advances for repairs in a foreign port, expressed to be “for value received in disbursements and re pairs of the brig H.,” with directions to charge the same to her account, is neither an hypothecation of the freight nor an assignment thereof | 1049 |
| The master cannot subject the ship in rem, much less the co-owners, to a responsibility for cargo not actually laden on 1387 | |
| board for transportation in the lawful employment of the vessel | 615 |
| Liabilities of vessels or owners. | |
| It need not be shown that supplies furnished on the order of the master in the usual course of business, and appropriated for the voyage, were absolutely necessary, or actually placed on board, in order to bind the owner | 140 |
| Advances of cash to the master will bind neither vessel nor owners unless shown to have been appropriated to the necessaries of the vessel | 140 |
| The owners are not personally responsible for debts contracted by the master for repairs, beyond the value of the ship and freight | 1254 |
| The recording or nonrecording of a conveyance of a vessel does not affect the question of the personal liability of the owner | 905 |
| A master being a part owner in a vessel is liable in damages for issuing a fraudulent bill of lading to the assignee in good faith, which may be recovered against the vessel to the extent of his interest therein | 615 |
| SLAVERY. | |
| The presumption of freedom attaches to every resident of a free state, without regard to color; and, on the same principle, in a slave state every colored man is presumed to be a slave | 335 |
| The presumption of slavery arising from color is rebutted by evidence of general reputation of freedom | 437 |
| The sale of a runaway slave held not to entitle her to freedom. (Act Md. 1796, c. 67.) | 686 |
| Slave imported into Washington, D. C., from Fortress Monroe, and sold within three years, held entitled to freedom | 658 |
| The affidavit of a manumitted negro is sufficient ground for an order to issue a summons returnable immediately upon a petition for freedom | 1147 |
| A petitioner for freedom has not a right to go in search of his witnesses | 892 |
| The judges of the supreme court of the United States, whose jurisdiction is coextensive with the country, are bound to take judicial notice of the existence of slavery in those states where it prevails | 335 |
| Construction of the fugitive slave law of 1850 and the jurisdiction and procedure thereunder | 335 |
| SPECIFIC PERFORMANCE. | |
| A creditor who induces an assignee in bankruptcy to agree to transfer to him, for a nominal consideration, a property right of value, on the assertion that it is of no value, is not entitled to a specific performance | 902 |
| STATES. | |
| A taxpayer cannot maintain a suit against state officers to restrain them from executing and issuing bonds authorized by an unconstitutional act | 749 |
| STATUTES. | |
| Laws within the general scope of the authority of the legislature cannot be declared void because contrary to the principles of natural justice | 440 |
| A construction which would impute to the legislature a design to perpetrate a fraud should be avoided if it can reason ably be done | 407 |
| A monopoly will never be awarded except by implication of a most direct and immediate character, and as necessarily annexed to powers expressly granted | 465 |
| A statute can be repealed only by an express provision of a subsequent law, or by necessary implication | 770 |
| A statute providing that the repeal of a repealing act shall not revive the original act applies to cases of repeal by implication | 403 |
| TAXATION. | |
| A national bank located in New Jersey, which, for the convenience of persons in Philadelphia, keeps a clerk there to receive deposits, is not located in Philadelphia, so as to be liable to taxation | 1238 |
| The funds in the hands of an assignee in bankruptcy may be taxed by the state | 493 |
| Taxes on chattels are not a lien on the real property of the owner until after judgment on a suit to recover them | 173 |
| In Ohio there can be no forfeiture for nonpayment of taxes of delinquent lands which the county treasurer and collector has not returned under oath to the county auditor | 438 |
| The county auditor is required to make a record of such return, which record cannot be altered by parol evidence | 438 |
| Notice of sale as provided by the statute is an essential requisite to the validity of the sale | 668 |
| The claimant under a tax title must show that all the substantial requisitions of the law have been complied with | 438 |
| Infants whose property has been sold for taxes due to the corporation of Washington may redeem at any time within one year after they have arrived at full age | 558 |
| The collection of a tax will not be enjoined where the deed issued upon a sale for taxes will not cloud the title | 475 |
| The omission to assess other property exempted from taxation under an unconstitutional statute does not render void a tax upon property of others liable to taxation, or give them a remedy by injunction | 1067 |
| A bank whose capital stock is assessed at full value, while all other property is assessed at less than half value, may obtain relief in equity by enjoining collection of the excess | 60 |
| Statutes in relation to the enforcement and collection of taxes must be strictly construed | 475 |
| TOWAGE. | |
| See, also, “Collision”; “Salvage.” | |
| The owners of towboats are not liable as common carriers in respect to the employment of towage | 1260 |
| The master of the tug in performing a contract of towage is responsible for ordinary skill and diligence | 126 |
| Proper skill and caution is such skill and caution as persons of ordinary prudence, duly qualified for the business, and exercising an honest care of the interests confided to them, ordinarily use | 314 |
| A contract to tow a canal boat to a certain dock, and there leave her in a safe and suitable place to discharge her cargo, held performed by leaving the canal boat at the upper side of the pier, where, on a change of tide, she was crushed by floating ice | 1308 |
| The tug is bound to the exercise of ordinary care in taking up, arranging, and managing the tow | 878 |
| In arranging the tow, the tug must direct as to the length of lines and the position 1388 | |
| of the vessels with reference to care in navigation | 878 |
| The tug is bound to know the channel and to keep the tow in the deepest water, and she must resort to sounding where the ordinary lights and landmarks are obscured | 878 |
| A tug employed to take a vessel out of a slip is bound to adopt a method of taking her out without injury | 547 |
| The tug is bound to furnish the towing line as a part of the contract of towage, in the absence of a usage or understanding to the contrary | 126 |
| Where the tow undertakes to furnish the line, and the tug objects to its insufficiency, it is not liable for the consequences of its breaking | 677 |
| A tug will be held liable for injury to her tow run ashore by reason of the breaking of the tug's rudder chain, which was known to the owner to be worn out and insufficient | 548, 549 |
| The tug must exercise reasonable diligence and ordinary skill; and where the tow takes the chances of entering, in a storm, a harbor with a shifting channel, the tug is not liable, in the absence of negligence, where the tow grounds on a new shoal | 893 |
| The vessel towed is bound to prevent a collision if she can, or to make the damages as light as possible | 878 |
| The tug is not bound to lay by a tow aground where it would endanger her own safety | 893 |
| The towing boat on the Mississippi river held in fault for attempting to run bridge piers in tempestuous weather with loaded barges in tow | 581 |
| Tug held not to have exercised ordinary skill and diligence in leaving Astoria on the ebb tide with a tow for Cape Disappointment | 126 |
| The tug is not liable for taking one of several courses open to it in an emergency, unless it appear that such course was manifestly the most dangerous | 566 |
| The question of the tug's liability where the tow is injured by being brought into collision with another vessel is to be determined by the same rules applicable to ordinary cases of collision | 1319 |
| A tug which strands a tow by negligence is liable for expenses of getting her off; and the court will not scrutinize very closely items of expense for lighterage, etc., where the master acted in good faith | 256 |
| Where a tow is brought into collision with a moored vessel, the presumption is against the tug | 1319 |
| A tug which negligently places a tow in danger cannot set up in defense to a suit for the loss, mistake, or want of skill of the tow's crew in an emergency, or the absence of extraordinary ground tackle | 126 |
| TRADE-MARKS AND TRADE-NAMES. | |
| The words “The Star Shirt,” and such words used with a star, and the device “The * Shirt,” are a lawful trade-mark | 837 |
| A barrel of peculiar form, dimensions, and capacity, irrespective of any marks or brands impressed upon or connected with it, cannot become a lawful trade-mark, or a substantive part of a lawful trade-mark | 715 |
| The certificate of registry issued under Act July 8, 1870, is not conclusive of the claimant's right to appropriate the device | 715 |
| TREATIES. | |
| A treaty takes effect from its date when ratified, unless a different period is fixed, or must be adopted to fulfill the manifest intent | 232 |
| Provisions, in a treaty, addressed to the judicial power, are carried into execution by the courts without other authority | 232 |
| TRESPASS. | |
| Sufficiency of complaint in action to recover treble damages for cutting and carrying away timber, and defenses thereto, under Civ. Code Or. §§ 385, 386 | 1291 |
| TRIAL. | |
| See, also, “Appeal”; “Continuance”; “Evidence”; “Judgment”; “Jury”; “New Trial”; “Practice”; “Reference”; “Witness.” | |
| The party who has the burden of proof should commence the proceedings, and he has the right to open and close | 1060 |
| In an action of covenant plaintiff has the right to open and close | *595 |
| The construction of a bill of sale is a question of law | 1179 |
| The effect of bankruptcy and death of a party to prevent the barring, by lapse of time, of a judgment against him, is a question of law for the court | 785 |
| Whether an instrument is of itself a fraud in law must be determined from the instrument alone. The existence of a collateral understanding different from the written instrument is a question for the jury | 322 |
| A motion to direct a verdict for defendant must be made at the close of plaintiff's case. It is not addressed to the court's discretion, but presents a question of law, the ruling on which is subject to exception | 54 |
| In an action ex contractu against two or more, the verdict must be against all or none | 403 |
| TROVER AND CONVERSION. | |
| See, also, “Replevin.” | |
| An action cannot be maintained against a national bank for conversion of shares of its own capital stock | 250 |
| Reputed ownership by a debtor of goods in his possession, in fact belonging to an other, will not justify a creditor in attaching them | 109 |
| TRUSTS. | |
| See, also, “Charities”; “Executors and Administrators”; “Guardian and Ward”; “Wills.” | |
| Where a judgment note is given by an agent for all moneys advanced to him by the principal, including the purchase price of property the title to which was taken in the agent's name, held, that a resulting trust could not be asserted therein | 1149 |
| Where the trustee mingles the trust fund with his own money, he is liable on its loss | 692 |
| A trustee who receives, in payment of a loan, confederate treasury notes at par which were worth only 30 cents on the dollar, is liable, unless he show that he acted under compulsion | 692 |
| Parol understandings had with the testator cannot be set up to save the trustee from liability under the law | 692 |
| UNITED STATES. | |
| Government moneys in the hands of the assistant quartermaster for disbursement, deposited by him with an assistant treasurer of the United States, still continue to 1389 | |
| be moneys of the United States, and such treasurer is not liable in assumpsit to the depositor therefore | 767 |
| USURY. | |
| The purchase of a bond at a price which produces a greater than the legal rate of interest is usurious, where the transaction is intended only as a cloak for usury | *595 |
| The maker, when transferring, as collateral security, bonds bearing an earlier date, may agree that interest shall run from their date according to their tenor | 667 |
| A mortgage of $20,000, where a life insurance of $80,000 was also taken from the lender, as security for a net loan of $16,000, held usurious | 703 |
| A mortgage is infected with the usury in a note which it is given to secure | 762 |
| In Indiana, usury makes void the instrument infected with it | 762 |
| A mortgage given for a usurious debt cannot be enforced in Indiana, though it was taken without notice | 762 |
| A covenant absolutely to pay an usurious debt directly to the lender is not a covenant simply to indemnify the surety, though delivered to him; and under the Virginia law it is void | *595 |
| A confession of judgment for $6,000 in favor of a person who procured satisfactions of that amount of judgments, on an advance of $3,000, held should stand only as security for $3,000 | 703 |
| If the cause of action be usurious, no waiver of the objection by defendant in pais will avail plaintiff | *595 |
| The penalty prescribed by act June 3, 1864. § 30, for the taking of usury on loans and discounts by national banks, is the only penalty enforceable | 1211 |
| Where a renewal note at legal interest is given for a note discounted by a nation al bank at a usurious rate, the bank is entitled to recover the amount of the renewal note with interest, less the amount of usury reserved on the original discount credited as of that date | 1207 |
| Usury paid more than two years before the commencement of the suit cannot be recovered nor credited upon the principal of the note | 1207 |
| VENDOR AND PURCHASER. | |
| See, also, “Bankruptcy”; “Boundaries”; “Deed”; “Frauds, Statute of”; “Fraudulent Conveyances”; “Grant”; “Sale”; “Specific Performance.” | |
| A conveyance of the grantor's interest in firm property, made subject to the payment of his share of the firm debts, which the grantees assumed, held, upon a condition subsequent, giving a right of re-entry for nonperformance, and a lien superior to subsequent mortgagees | 1171 |
| The vendor's lien is waived by the taking of the obligation of a third person, or a mortgage upon the property sold or other property | 1171 |
| The vendee cannot rescind on the ground of fraud unless he place the vendor in the condition he was in before the purchase | 1038 |
| Where a deed is made under a defective power, the court will decree a conveyance on payment of the residue of the purchase money | 1038 |
| Notice of a lien or incumbrance binds the purchaser if received before payment of the purchase money | 86 |
| Where the existence of a mortgage is known and talked about in the neighborhood, and publicly proclaimed at execution sale, the purchaser is held to notice thereof | 86 |
| One may protect himself as a bona fide purchaser by showing either that he paid without notice, or took through some bona fide purchaser without notice | 402 |
| A recital in a recorded deed by one having no record title is not constructive notice | 402 |
| A recital in a recorded deed by one having no record title is not constructive notice | 402 |
| The record of a deed not acknowledged according to law is not constructive notice of its existence | 885 |
| Disqualification of the notary to ac knowledge a deed, on the ground of interest, does not prevent the record being notice to subsequent incumbrancers | 1202 |
| WAR. | |
| See, also, “Army and Navy”: “Habeas Corpus”; “Insurance”; “Prize.” | |
| The United States, by their alliance with France during_ the Revolutionary War, held not to be considered parties to the capitulation made by the Marquis De Bouille with the inhabitants of Dominica | 347 |
| An alien enemy cannot sustain a suit in the federal courts | 982 |
| A draft drawn within the Confederate States, in a section not under the control of the federal forces, upon a person in a loyal state, is absolutely void as to all parties | 679 |
| Military commissions and their acts in the trial of persons not in the military service, during the Civil War, in states where the courts were undisturbed, were unconstitutional | 380 |
| The members of such commissions and the military officers are liable for an arrest and imprisonment ordered by them in such states, even though ratified and approved by the executive | 380 |
| The limitation imposed by Act March 3, 1863, is valid and binding on state tribunals, and the statute begins to run against a continuing imprisonment | 380 |
| The damages in such cases should be compensatory, and not exemplary | 380 |
| A person committing an offense in a place where the federal courts are closed by civil war, and arrested and tried in a place where the federal courts are open, cannot be tried by military commission | 1030 |
| The crime of murdering the president of the United States in time of civil war is triable by a military commission | 954 |
| WASTE. | |
| An injunction against waste will not be granted where the title of complainant is denied by answer, or where he had no sufficient notice of the motion | 867 |
| WHARVES. | |
| The master must ascertain that the depth of water in the dock is sufficient for the draught of his vessel. The wharfinger does not impliedly warrant the depth | 1336 |
| But the wharfinger must inform the master as to inequalities in the surface of the bottom when material to the safety of the vessel | 1336 |
| A direction by the wharfinger who is consignee of the cargo to place the vessel in the dock is not equivalent to a notification that the water is deep enough at all times to float the vessel | 1336 1390 |
| WILLS. | |
| See, also, “Charities”; “Executors and Administrators”; “Trasts.” | |
| Republished wills and codicils have the effect of new wills, and are to be proved in the same way | 1072 |
| A will of lands, in Rhode Island, cannot be admitted as evidence of a devise, unless it has been duly probated | 680 |
| Under a devise directly to the children of testator's brother and sister, the devisees take per capita, and not per stirpes | 561 |
| A devise of land to an individual required to pay specific legacies constitutes a charge on the land in the hand of a vendee | 724 |
| Under a devise to the children of A., to be divided among them when they arrive of age, all children living when the eldest arrives of age, though born after the death of testator, take a share, and the shares of those dying in the meantime fall into the general residuum | 561 |
| Will construed as an executory devise to W. in tail, after an estate for life in himself, remainder in fee to his children living at his death, which executory devise in tail is to take effect on the contingency of his dying without children living at the time of his death | 1008 |
| WITNESS. | |
| See, also, “Bankruptcy”; “Costs”; “Deposition.” | |
| A bankrupt who indorsed a note before his bankruptcy, and who has obtained his certificate, is a good witness for the indorsee | 1059 |
| While parties to the record cannot be examined as witnesses, the name of a party for good cause shown may be stricken from the pleadings | 1345 |
| A witness cannot discharge himself of an objection to him on the ground of interest, by matter sworn by himself | 1059 |
| Defendant may testify in his own behalf as to matters embraced in the deposition of plaintiff's intestate, offered in evidence on continuance of the suit by his administrator. (Act March 3, 1865.) | 982 |
| A free black man, born of a white woman, held a competent witness against a white man | 437 |
| A subscribing witness who was called in to sign the paper as a witness, but did not see the parties execute or acknowledge it, may testify where they both told him that it was their agreement | 993 |
| A witness who cannot testify in a cause without criminating himself shall not be sworn | 1266 |
| An attorney at law cannot be compelled to disclose any fact the knowledge of which has been communicated to him by his client | 1047 |
| The court will not grant an attachment against a party for not paying his witness, unless payment shall have been demanded by a person having authority to receive payment, and unless that authority appear | 1147 |
| WRITS AND NOTICE OF SUITS. | |
| Motion to quash is the proper manner of taking advantage of a neglect to indorse the writ as required by the state statute, adopted by the federal practice | 317 |
| In such case an amendment will be permitted | 317 |
| Such neglect is no ground of a plea in bar. A plea in abatement is the only one that could be filed | 317 |
| In a railroad foreclosure suit, service of process of a state court, outside the state, on a bondholder, as defendant to a cross bill, is ineffectual | 25 |
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