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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
20FED.CAS.
20FED.CAS.—86
20FED.CAS.—87
20FED.CAS.—88
| Page | |
| ACCOUNT. | |
| In an action of account, a plea of plene computavit is not sustained by evidence showing that goods were sent to defendant to be sold on commission, and that he delivered an account in which he debited himself with the entire amount, and credited the sales, leaving a large balance of goods unsold and unreturned | 347 |
| Sufficiency of plaintiff's own oath to support an account under Acts Md. 1729, c. 20, § 9, and 1785, c. 46 | 1113 |
| ACKNOWLEDGMENT. | |
| The separate examination of a feme covert, as required by the statute, is indispensable, but the exact statutory words need not be used. | 319 |
| ACTION. | |
| The joinder of an action for a joint tort against two or more in admiralty with an action for a tort against one separately is bad on objection taken | 932 |
| ADMIRALTY. | |
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Charter Parties”; “Collision”; “Demurrage”; “Marine Insurance”; “Maritime Liens”; “Pilots”; “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping”; “Towage.” | |
| Jurisdiction—In general. | |
| The admiralty and maritime jurisdiction possessed by the district courts on the Western lakes and rivers under the constitution and act of 1789 is independent of, and unrestricted by, the act of 1845 | 560 |
| —Persons and property. | |
| The court will take jurisdiction of a suit by a foreign seaman against a foreign vessel for wages, where the foreign consul consents thereto | 624 |
| A libel in rem cannot be maintained for services in navigating a raft of logs | 169 |
| —Rights and controversies. | |
| Admiralty has jurisdiction over such liens only as arise from work and labor connected with maritime affairs, navigation, or shipping | 354 |
| Admiralty has jurisdiction of a contract to furnish materials for the equipment of a vessel after she is launched and afloat on navigable waters | 568 |
| Admiralty has no jurisdiction of a contract of a stevedore for removing ballast from a ship, though the state statute gives a lien for such services | 476 |
| The jurisdiction in admiralty over a contract for repairs or supplies to a vessel depends upon her character, and not upon the manner in which she is actually employed | 541 |
| A contract made on land by a shipwright to repair a vessel in his shipyard is not maritime, and admiralty has no jurisdiction of a libel in personam for negligence or delay in performing it | 282, 282 |
| Admiralty has jurisdiction of contracts for the building of seagoing ships | 304, 683 |
| The admiralty jurisdiction of federal courts extend to suits upon contracts of affreightment | 146 |
| Query, whether admiralty has jurisdiction of a suit for damages for nonfulfillment of a charter party by refusal to furnish a specified cargo | 677 |
| —Torts. | |
| Admiralty has jurisdiction over a tort committed by an officer of the vessel against a seaman on board, in relation to the maintenance of discipline, while the ship is lying in a port of the United States, within the body of a county. | 932 |
| ADVERSE POSSESSION. | |
| See, also, “Ejectment”; “Real Property.” | |
| A refusal by one tenant in common to permit his cotenant to participate in the enjoyment of the property constitutes an adverse possession. | 895 |
| The possession of lands by an agent or manager is an actual possession, upon which adverse possession may be predicated | 895 |
| Color of title under a worthless or void deed is evidence of adverse possession | 905 |
| AFFREIGHTMENT. | |
| See, also, “Admiralty”: “Bills of Lading”; “Carriers”; “Charter “Shipping.” | |
| A consignee, who has a right to designate where to discharge the cargo, must select a suitable and safe place | 866 |
| Where a cargo has lost its original character at a port of distress, or cannot be reshipped without a total destruction of it in specie before arrival at its destination, the shipper is not liable for freight | 773 |
| ALIENS. | |
| The title to land held in trust by an unnaturalized alien held to vest in a new trustee, appointed by a court of competent jurisdiction, on the death of the first trustee, though the heirs were all unnaturalized aliens, where the commonwealth had not consummated her title by inquest and office found | 228 |
| ALTERATION OF INSTRUMENTS. | |
| The insertion of the words “Value received” after an indorsement does not avoid the note, unless done with the privity of plaintiff. | 787 1358 |
| APPEAL AND ERROR. | |
| No final judgment or decree can he re-examined unless the matter in dispute exceeds $5,000. (Act Feb. 16, 1875, § 3.) | 862 |
| No civil suit where there is a certificate of division of opinion can be taken to the supreme court, except upon final judgment, and by a writ of error or appeal. (Rev. St. §§ 650, 652, 693.) | 862 |
| The service of a copy of the petition of appeal or writ of error, etc., required to be made within 10 days, to stay execution, cannot be made by order of court nunc pro tunc | 851 |
| Where the writ of error operates as a supersedeas, the security is to be for costs, and such damages as the supreme court may award for the delay | 532 |
| After a case has been appealed from the circuit to the supreme court, it is not the proper practice to apply to the circuit court for a request to the supreme court to send the case back for a rehearing | 1100 |
| A writ of error, in exceptional cases, will be dismissed without prejudice to another writ, or to an effectual process to remove the cause | 1306 |
| On appeal to the circuit court in admiralty, the whole decree is brought up, though only a part of it is appealed from | 851 |
| Questions of fact cannot be re-examined on a writ of error | 1306 |
| On an appeal in admiralty, new evidence is admissible, and time will be given to produce it, where it appears that appellant was not guilty of laches in not producing it in the court below | 1178 |
| The circuit court, upon appeals in admiralty, may allow amendments to the pleadings so as to permit new evidence, and new grounds of defense | 541 |
| Where both parties appeal from a decree for salvage, which is affirmed, libelants will not be allowed interest from the date of decree in the court below | 386 |
| On an appeal to the circuit court in admiralty, the appellate court, after decision, must execute the decree, and it has no power to remit the proceedings to the district court | 851 |
| The portion of the decree unappealed from, in case of a reversal, remains in full force, to be executed in the circuit court, and becomes a part of its decree | 851 |
| On a hearing on appeal from a decree dismissing a libel in personam on the ground that there was no proof of incorporation of defendant, or that it owned the vessel, where such objections were removed by evidence, the circuit court, on reversing the decree, allowed both parties to take proofs on the merits, with liberty to either to amend his pleadings | 527 |
| APPEARANCE. | |
| See, also, “Courts.” | |
| Defendant has the whole of the return term to appear in, and, if plaintiff withdraws his action before the end of the term, he cannot maintain a suit on the bail bond | 817 |
| After an appearance entered at a previous term, it is too late to call for the authority to appear | 1112 |
| ARMY AND NAVY. | |
| See, also, “Prize”; “War.” | |
| A minor under 18 years of age cannot be mustered into the army, but an enlistment of a minor over such age, without the consent of his parents or guardians, is valid | 797 |
| The oath taken by a recruit on his enlistment into the army, as to his age, is conclusive as against himself and everyone else | 797 |
| The whole power of discharging minors from the army is given to the secretary of war, and cognizance of such matters is taken from the courts | 797 |
| A paymaster's clerk is a person in the naval service, and subject to the jurisdiction of a naval court-martial for offenses against the articles for the government of the navy | 409 |
| The convening officer of a naval court-martial has authority to send back to the court the record of its proceedings, with the finding and sentence, for the reconsideration of such court as to revision of the sentence | 409 |
| Such revision of sentence can be made after an intermission in which the court had been occupied with other trials | 409 |
| Where the revision is made by the court composed of the same members that took part in the trial, the sentence is not rendered illegal by the fact that its membership was changed during the intermission | 409 |
| Arrest. | |
| See “Bail”; “Criminal Law”; “Extradition”; “False Imprisonment”; “Malicious Prosecution.” | |
| Assignment for Benefit of Creditors. | |
| See “Bankruptcy.” | |
| ASSOCIATIONS. | |
| See, also, “Corporations”; “Insurance.” | |
| A stockholder of an unincorporated association is liable in equity for the debts of the association, irrespective of the provisions of the by-laws limiting his liability | *788 |
| ASSUMPSIT. | |
| See, also, “Contracts.” | |
| Plaintiff cannot recover under a count for goods sold and delivered, where defendant was employed to sell on commission, and the proceeds were embezzled by his clerk, to whom they were confided. In such case an action lies for money had and received. | 345 |
| An action for money had and received will lie for money paid by plaintiff to defendant upon a contract which defendant has failed to execute on his part | 725 |
| Where there is a special agreement, plaintiff cannot recover under a general count | 211 |
| ATTACHMENT. | |
| See, also, “Bankruptcy”; “Execution”; “Garnishment”; “Writs and Notice of Suits.” | |
| Under Act 1789, c. 20, § 11, a foreign attachment cannot be maintained against the principal defendant unless he is an inhabitant of the district where the suit is brought, or is found within it, at the time of service of the process | 737 |
| A chancery attachment will not lie in Virginia to charge the effects of a deceased foreign debtor in the hands of a resident defendant | 394 |
| A sheriff, who delivers up to defendant the attached property before the action is actually dismissed, though ordered to do so by plaintiff, may be required to account to subsequent attaching creditors for the value thereof | 655 1359 |
| ATTORNEY AND CLIENT. | |
| The proctor cannot proceed with a libel by a seaman against an officer of a vessel for a tort, to recover costs, where there has been a settlement made in good faith, though without his consent | 64 |
| AVERAGE. | |
| General average is incurred where the expenses or losses arose in a case of emergency, not produced by the misconduct or unskillfulness of the master, and not resulting from the ordinary circumstances of the voyage | 1231 |
| Where the vessel will inevitably go ashore, and the master makes sail, and puts her ashore in a place most likely to save the vessel and cargo, and the vessel is lost, the property saved must contribute in general average | 344 |
| Where a vessel cut through by ice while anchored in deep water was run ashore in shallow water, and injured by lying on an uneven bottom, held a general average loss | 316 |
| Damage caused to the vessel by swelling of linseed in her cargo, through its being wet by water which came in through the holes made in the vessel by the ice, and damage to the cargo by such water, must be regarded as damage from a peril of the sea, and therefore not to be allowed for in general average | 316 |
| The expenses of repairs at an intermediate port, required by ordinary decay in the course of a voyage, ace not the subject of general average | 1231 |
| Damage to the materials of a lost ship in saving a cargo should be paid by the cargo | 902 |
| Loss or damage to a wrecked vessel, or her tackle, in consequence of efforts to get her afloat, are apportioned upon ship and cargo only where the efforts are successful, and the cargo saved thereby | 902 |
| The regular port charges, and the expenses of ascertaining the amount of injury to the vessel in a port of distress, and the costs of a salvage suit, will be apportioned upon the vessel and cargo | 902 |
| The wages and provisions of the crew at a port of necessity are not chargeable on the cargo in general average, unless the voyage is resumed, and the cargo delivered at the port of destination | 902 |
| Cargo transshipped at a port of distress is liable for a reasonable compensation for the master's time and expenses in securing another vessel, where the transshipment is not to earn the original freight | 902 |
| The expenses of traveling, to consult the shipowner or underwriter upon the propriety of abandoning the voyage at a port of distress, do not fall upon the cargo, where the voyage is abandoned | 902 |
| Where a voyage is abandoned at a port of distress, the cargo is not liable for the expenses of the master's passage home | 902 |
| Where the cargo is unloaded at a port of necessity for the common benefit of both vessel and cargo, the expenses thereof should be borne by both | 902 |
| A ship floated off a reef by putting a part of the cargo into a wrecking vessel should contribute to the loss or damage suffered by such part | 902 |
| Blubber thrown overboard from a whaler, to prevent its sinking in a violent tempest, held a subject of general average covered by a policy upon “catchings.” | 1118 |
| The total salvage upon a ship and cargo saved together should be apportioned between them in the ratio of their values | 902 |
| In adjusting the average, under the usage of the port, the contributory value of the freight was taken as one-half the gross freight agreed to be paid for the voyage on which the disaster occurred | 316 |
| In the case of a jettison of goods, their value is generally to be estimated at their prime cost or original value, or, if the vessel have arrived at her port of destination, at their value at such port | 1121 |
| BAIL. | |
| Where defendant has been discharged under the state insolvent law from a debt contracted in the state, he will be discharged on common bail | 349 |
| Where, in such case, he has given special bail, the court will order an exoneretur to be entered on the bail piece | 721 |
| If the special bail surrender the principal, who has been discharged under an insolvent law, the court will discharge the principal from custody | 721 |
| The affidavit to hold to bail must be strictly construed, and must state the indebtedness positively, and specify the exact amount due, leaving nothing to inference | 1016 |
| In a suit upon protested bills of exchange, the court will not require an affidavit of the amount due upon the bills to hold defendant to special bail | 865 |
| Defendant is entitled to the whole of the return term to give special bail | 653 |
| Before property can legally be delivered on bail in cases in which the United States are a party, due notice must have been given to the district attorney | 854 |
| A set-off cannot be shown, to mitigate the amount of bail | 865 |
| BAILMENT. | |
| See, also, “Carriers”; “Warehousemen.” | |
| One who hires property of another is answerable only for such injuries thereto as are caused by the omission of that care which a man of common prudence would have taken in his own concerns | 461 |
| BANKRUPTCY. | |
| See, also, “Insolvency.” | |
| Operation and effect of bankruptcy laws and of proceedings thereunder. | |
| State insolvent laws in force at the time of the passage of the bankrupt act are suspended thereby in so far as the provisions of the latter cover the subject-matter of the former | 612 |
| Any corporation created for the purpose of carrying on any lawful business defined by its charter, and clothed with power to do so, for gain, is amenable to the bankrupt act | 274 |
| The federal district court, sitting in bankruptcy, has power, by injunction, to stay proceedings in the state courts against a bankrupt | 416 |
| An action in a state court to recover a provable debt will be stayed until a determination is had as to the discharge, whether the debt be one that will or will not be discharged. (Act 1867, § 21.) | 1194 |
| A debt for merchandise sold at an agreed price is provable under section 19, though it be a debt contracted by fraud, and therefore not discharged under section 33 | 1194 |
| A party arrested on process from a state court; and released on giving bonds to apply to be discharged as an insolvent, filed a petition in bankruptcy, and was decreed a bankrupt. Held, that before the discharge the court would not enjoin proceedings in the state-court suits | 273 1360 |
| Jurisdiction of courts. | |
| The district court in bankruptcy has power to make a call and assessment against the stockholders in a bankrupt insurance company, on unpaid stock held by them | 544 |
| The court has power to make such an assessment, to return unearned premiums and all claims properly provable against the company, and to pay the expense of closing up its affairs | 544 |
| The court also has jurisdiction of the equalization of payments between stockholders, and it may also allow interest on claims proven | 544 |
| The district court of another district than that in which the bankruptcy proceedings are pending has no power to stay proceedings in a state court to collect a debt provable in bankruptcy | 696 |
| Register—Powers and duties. | |
| A general order referring a case to the register is sufficient to authorize him to take testimony in respect to the compensation of the petitioning creditor. | 980 |
| A register conducting an examination should declare his opinion upon questions arising thereon, and, on exceptions, should certify the questions to the court | 368 |
| The register should certify to the court only questions which actually arise | 54 |
| The register has no authority to decide questions arising upon objections to the discharge | 31 |
| Commencement of proceedings—Voluntary bankruptcy. | |
| The bankrupt may withdraw his petition before the decree has been made, upon proper cause shown, and on the payment of costs | 221 |
| The bankrupt must show, either in the schedule attached to his petition, or in a separate affidavit, the efforts made by him to find the present residence of creditors, which is not given | 54 |
| —Warrant: Notice to creditors. | |
| The marshal's return to the warrant, though not conclusive, is sufficient to authorize the register to proceed, if it shows due service and publication | 54 |
| The marshal should copy into the notices the exact language used in the warrant, but immaterial variances will be disregarded | 54 |
| As to the designation of newspapers for the publication of notice to creditors under rules 5 and 21 | 973 |
| —Involuntary bankruptcy. | |
| An involuntary petition cannot be maintained by a copartnership against one of its members | 1012 |
| The fact that intervening petitions sufficient, of themselves, as to number and amount, to constitute the necessary quorum, were afterwards filed, will not sustain the jurisdiction of the court | 1012 |
| The amendment of June 22, 1874, respecting the number and amount of petitioners, does not apply, to a case in which adjudication has been entered | 165 |
| The petitioning creditors whose debts equal or exceed $250 must be one-fourth of all that class of creditors | 795 |
| A creditor voluntarily joining in a petition to make up the requisite number and amount cannot afterwards defeat the proceedings by withdrawing his consent | 1209 |
| Any debt which may be proved by complying with any of the provisions of the bankrupt act is a provable debt | 274 |
| An indorser of the bankrupt's paper, who has, before the filing of the petition, become absolutely liable to the holders, by due notice of dishonor, is not a creditor of the bankrupt at the time of such filing | 795 |
| A note which falls due after the filing of the petition is not a provable debt for its face value at the date of such filing | 795 |
| Where the ascertainment as to whether the requisite number and amount of creditors have joined is not made upon reasonable notice to the creditors, the power to grant time for other creditors to join is not limited by section 12, Act June 22, 1874 | 387 |
| The allegation as to number and amount of creditors is an allegation of a jurisdictional fact, and, where the petition does not clearly show that the proper proportion has joined, the court has not jurisdiction, and it is not subject to amendment | 1209 |
| A petition which states the giving to the petitioner of an unlawful preference in respect to the debt, but does not surrender the preference, will be dismissed | 153 |
| The petition must be sustained by proofs of the act of bankruptcy, and of the claim of the petitioning creditors, to be considered the commencement of proceedings in bankruptcy under section 38, Act 1867 | 1105 |
| An order to show cause, issued without such proofs, is illegal and void, and does not constitute the commencement of proceedings | 1105 |
| The deposition of acts of bankruptcy, to authorize the making of an order to show cause, must be such as constitutes legal testimony | 1209 |
| A petition which shows, in contradiction of its general allegation, that the provable debts of some of the petitioners do not amount to $250, is demurrable, but the court may allow an amendment to remedy the defect | 1065 |
| An allegation that the debtor, being a trader, stopped payment of his commercial paper within the period of 14 days, is too indefinite | 222 |
| The facts concerning an alleged act of bankruptcy should be stated in the petition with such certainty and detail as to inform the debtor of what he is required to make proof or explanation, as provided in section 41, Act 1867 | 222 |
| A verification of the petition by a person whose name is omitted from the body is ineffectual as to him | 1209 |
| A petition may be signed and sworn to by an attorney of the petitioning creditor duly authorized | 338 |
| Where the petition is signed and verified by an agent, proof of his agency, or of express authority, is necessary | 1209 |
| Supplementary proof may be received nunc pro tunc, in the discretion of the court, to establish the authority of the agent to sign and verify the petition | 1209 |
| A petition signed and verified by the president of a bank, on behalf of the bank, must set out his special authority | 1065 |
| Amendments introducing new acts of bankruptcy will not be allowed | 433 |
| —Acts of bankruptcy. | |
| A general assignment for the benefit of creditors is an act of bankruptcy | 222 |
| The giving of a chattel mortgage on tools and a stock in trade, to secure certain creditors, where the debtor shortly afterwards suspended payment, held an act of bankruptcy | 1105 |
| Suffering a sale to take place, from inability to resist it, is not an act of bankruptcy, even if, by so doing, one creditor should be preferred to another | 274 |
| The continued neglect to pay commercial paper may be alleged as an act of bankruptcy, although the first 14 days after maturity expired more than 6 months before the filing of the petition | 338 1361 |
| A conveyance by a partner, of his individual property, though made with intent to hinder, delay, or defraud firm creditors, or to prefer one of them, will not sustain a proceeding against the firm | 400 |
| An insolvent is one who is unable to pay his debts in full at once, or as they become due | 222 |
| Order to show cause. | |
| By consent of parties, an adjourned day may be held to be the same as the return day | 59 |
| Schedule. | |
| The bankrupt is only bound to set forth in his schedule such property as he has a light or interest in at the time of petitioning. (Act 1841.) | 938 |
| Property, the right or interest in which has passed out of the petitioner prior to petitioning, whether by negligence, extravagance, gaming, donation, or fraud, need not be set forth in the schedule. (Act 1841.) | 938 |
| Material additions of debts or property cannot be made after the first meeting of creditors, except upon such conditions as may prevent injustice | 304 |
| Adjudication. | |
| An adjudication without the appointment of an assignee does not divest the bankrupt of the title to his property, and a mortgage given on a compromise with his creditors is valid as against the assignee, in subsequent proceedings in bankruptcy | 1011 |
| The proceedings will not be stopped, after adjudication, on a mere protest alleging want of jurisdiction in the court, under amended acts, before the court has full knowledge of their context | 1211 |
| The proceedings may be set aside on motion, if made within, a reasonable time, where an adjudication is had upon a waiver made by the attorney of the debtor | 552 |
| Meetings of creditors. | |
| The register has no discretion to refuse to call a second general meeting of creditors requested by the assignee after three months from the adjudication | 1214 |
| Assignee—Election, appointment, and removal. | |
| Where a member of a firm petitions individually, private creditors, only, can vote for assignee | 74 |
| The firm creditor is counted only as one creditor, in the vote for assignee | 74 |
| A joint creditor can vote the full amount of the debt, without the consent and authority of the other creditor, only in the case of partnership | 74 |
| An attorney at law cannot vote for his client without being duly constituted his attorney in fact | 74 |
| An agent of the creditor who proved the claim cannot vote for the assignee without a power of attorney | 74 |
| A majority of all who have proved claims, and not simply of the votes cast, is essential to an election | 74 |
| —Rights, duties, and liabilities. | |
| The assignee is estopped where the bankrupt would be estopped, except in cases of fraud, or of attachments of less than four months' standing | 1071 |
| Property of bankrupt—What constitutes. | |
| Where the contract of sale is not complete, through the default of the seller, before the bankruptcy of the purchaser, he is entitled to have the goods returned, where they have not been accepted and paid for | 75 |
| A loan made to a bankrupt, through his agent, after his failure, but without notice thereof, where the money never came to his possession, and it appeared that he never intended to pay the note given as evidence thereof, will not vest title in the bankrupt | 73 |
| —Custody and control. | |
| Property in the possession of the bankrupt after the appointment of the assignee is considered as in the possession of the assignee, and it cannot be taken therefrom by a mortgagee under a valid mortgage | 1196 |
| Where a forthcoming bond has been given for the release of goods under seizure, the court may summarily order the goods, or the value thereof, to be brought into court by the parties to the bond | 1193 |
| —Exemptions. | |
| In Wisconsin exemptions will not be allowed from the stock in trade, or from articles simply bought for exchange, and which are not “used and kept for the purpose of carrying on the trade or business.” | 963 |
| In Kansas the title to property occupied by the bankrupt and his family as a residence at the time of the filing of the petition in bankruptcy does not pass to the assignee, and he cannot maintain a suit in relation thereto | 846 |
| The removal of the bankrupt out of the state after his adjudication does not defeat his right to the homestead | 154 |
| In the absence of any individual estate, partners who are heads of families were allowed exemptions out of the partnership estate | 697 |
| Where the bankrupt is dissatisfied with the exemption allowed by the assignee, the only remedy is to except to his ruling, and have the question certified to the court | 28 |
| —Liens. | |
| The lien of a factor for his advances, charges, and commissions will be protected. | 1192 |
| The lien given by an attachment on mesne process, if perfected by judgment and levy, is protected, though the judgment was not obtained before the bankruptcy proceedings. (Act 1841.) | 417 |
| Attachment by trustee process within four months of the proceedings in bankruptcy is absolutely void. (Act 1867.) | 1049 |
| A creditor who has advanced money to raise a valid attachment, made more than four months prior to the bankruptcy proceedings, retains a lien therefor, although such advances were a part of a consideration for a conveyance which was a fraudulent preference | 1049 |
| —Sale. | |
| A bankrupt retail merchant has no right to sell any of his stock, after petition and schedule filed, without leave of court, though the goods are perishable | 28 |
| The district court may order the sale, free from incumbrances, of the bankrupt's real estate bound by the lien of judgment and other incumbrances under state laws | 652 |
| A sale, free of incumbrances, of the bankrupt's real estate, subject to the lien of valid judgments, made on the ex parte petition of the assignee, is absolutely void, and will be set aside on subsequent petition of the lien creditors | 1291 |
| Where property subject to a chattel mortgage is sold by the assignee without objection from the mortgagee, he is not entitled to be paid the full amount of his debt, as privileged, where there is a deficiency on the sale | 59 |
| Proof of debts—What is provable. | |
| A debt, to be barred by limitation, must be shown to be barred throughout the United States. (Act 1807, § 19.). 322; contra | 408 1362 |
| A debt barred by the statute of limitation of the state where the bankrupt resides cannot be proved | 408 |
| A mere fraud on the bankrupt law, by accepting a preference in violation of its provisions, is not an “actual fraud,” which will prevent proof of the debt, under Act June 22, 1874, § 12 | 820 |
| A creditor who receives a fraudulent preference may prove his claim, where he has made a full surrender of the money or property transferred to him | 402 |
| A payment or other disposition of property by a debtor, after the petition is filed, is not a preference which will prevent proof of the debt without a surrender | 226 |
| The receiving of a fraudulent preference on one of two disconnected debts will not affect the creditor's right to prove the other | 748 |
| An open, running account, for merchandise sold, consisting of various items of charges and credits at different times, is but a single claim | 748 |
| A creditor who resists a suit by the assignee to recover an alleged fraudulent preference cannot prove his claim, where he is defeated in the action, though he pays the judgment recovered against him therein | 748 |
| A preferred creditor who surrenders his preference after suit brought by the assignee, and the taking of proofs therein, but before judgment, and pays the taxable costs of the suit on its dismissal, may prove his claim | 820 |
| —Secured debts. | |
| A creditor secured by a deed of trust, who has caused the property to be sold, may thereafter prove his debt | 1311 |
| —Procedure. | |
| A creditor may prove a debt and receive dividends at a fourth general meeting of creditors, called five years after the bankrupt's discharge, for the purpose of declaring a dividend from assets unexpectedly realized. | 981 |
| Claims of a corporation may be proved by a receiver appointed by the state court on its dissolution | 548 |
| On the re-examination of a claim, proof of which has once been certified as satisfactory, the creditor makes out a prima facie case by offering himself for examination | 978 |
| A creditor, though the wife of the bankrupt, is a competent witness | 692 |
| —Set-off. | |
| Nothing can be set off, under Rev. St. § 5073, against the principal of a debt due a creditor, except a debt due from the creditor to the bankrupt | 61 |
| A nonnegotiable demand against a bankrupt, purchased by his debtor before bankruptcy proceedings, but after his insolvency, cannot be set off against the creditor's negotiable note in the hands of the assignee, when the assets do not equal the liabilities | 1137 |
| Payment of debts: Priority: Dividends. | |
| Interest will not be allowed where the debt depends upon a new promise | 408 |
| A claim on a bond signed individually by partners, but not for a firm obligation, is not entitled, as against the firm creditors, to be paid from the partnership assets | 1084 |
| The joint creditors of a firm will share pro rata with the individual creditors of the partner who bought out the other members, agreeing to pay the firm debts, and failed a few months thereafter, without showing that they have exhausted the individual estates of the retiring partners | 654 |
| A person employed for a temporary service, in adjusting the books and accounts of a bankrupt, within six months before the bankruptcy, has a privileged debt for services as clerk, to the extent of 850. (Rev. St. § 5101.) | 1070 |
| The claim of a lessor for the rent of premises of which the assignees continued in possession held entitled to preference | 1170 |
| The urban landlord has no priority or preference, under Act Tex. April 4, 1874, over the general creditors | 983 |
| The penalty prescribed by the internal revenue acts for selling unstamped packages is incurred at the time of the sale; and a judgment therefor recovered by the United States after the adjudication in bankruptcy, with the exception of costs, is a provable debt, and entitled to priority of payment | 1214 |
| Examination of bankrupt, etc. | |
| Where the creditor fails to appear on the day appointed for the examination of the bankrupt it may be adjourned | 982 |
| Only a creditor who has proved his claim (section 26), or who has tendered proof of a debt which has not been allowed (section 22), may apply to examine the bankrupt | 322 |
| A bankrupt under examination by the assignee, cannot refuse to answer questions as to his having lost money at gaming on the ground that they would criminate or degrade him | 691 |
| A bankrupt cannot be examined as to property acquired or business done after the date of filing his petition, where he states that the same has no connection with or reference to his estate or business prior to that date | 1205 |
| Where the bankrupt declines, under the advice of counsel, to answer a question, the creditor may apply to the district judge to punish him for contempt | 1205 |
| The register has no power to decide on the competency, materiality, or relevancy of any question | 1205 |
| Costs: Fees: Disbursements. | |
| An order limiting the fees and costs to the amount of the bankrupt's deposit should only be made after a personal examination of the bankrupt | 396 |
| Such order will not be made where it appears that the bankrupt has been depending for his subsistence on borrowed moneys, the indebtedness for which is not set out in the petition | 390 |
| Costs will not be allowed to the bankrupt where a discharge is granted after opposition, where it appears that there was good probable cause of objection | 1288 |
| Costs of resisting opposition to a discharge will be decreed against the creditor where he filed 20 specifications, none of which were sustained | 982 |
| Taxation of fees of register | 974 |
| The proper way to bring before the court the question of the compensation of and disbursements by the attorneys of the bankrupt is by petition, on which a reference will be ordered | 1197 |
| The standing auditor of the court has no power to tax a marshal's bill of costs | 505 |
| The consent of the assignee held a sufficient ground for the taxation of the marshal's bill of fees and expenses, and the register must countersign a check drawn by the assignee for the amount | 506 |
| The expenses of a reference to contest a claim of a creditor before the appointment of an assignee, where the bankrupt is unable to pay any part of them,' may be paid out of the estate | 697 |
| Discharge—Proceedings to obtain. | |
| There can be no discharge where the bankrupt dies pending the proceedings, without having taken the final oath prescribed by section 29, Act 1867 | 142 |
| The oath required by section 29 must be taken, and produced to the register and he must then certify conformity or nonconformity, though the creditors ask time to file specifications of objections | 57 1363 |
| —Proceedings' in opposition. | |
| Specifications of opposition under section 31 and general order No. 24 must be as specific as the grounds for avoiding a discharge required by section 34 | 307 |
| False testimony in the examination, and false statements in the schedule, must be alleged to have been willfully false, to bar a discharge | 307 |
| An allegation that the bankrupt “is entitled” to certain real estate held sufficient to show that he was guilty, under section 29, of negligence, in delivering to the assignee property belonging to him | 307 |
| The creditors cannot give proof of other payments than those mentioned in the specification as alleged fraudulent preferences | 1198 |
| —Acts barring. | |
| The creation of a debt by fraud is not a ground for refusing a discharge | 307, 1202 |
| A discharge will not be refused because the bankrupt has misused and wasted his estate, and made fraudulent purchases | 1104 |
| Preferences made in contemplation of the passage of the bankrupt law of 1841 will bar a discharge thereunder only when made with a view of getting the benefit of the act | 101, 104 |
| The act of suffering a default in a case in which an attachment was made prior to the filing of the petition in bankruptcy is not the granting of an unlawful preference. (Act 1841.) | 1288 |
| Mere insolvency is not sufficient to show a payment to have been made in contemplation of bankruptcy. (Act 1841.) | 1288 |
| A payment, to be voluntary, must originate with the debtor; the first step being taken by him, and not by the creditor. (Act 1841.) | 1288 |
| “Fraudulent preference,” as used in item 9 of section 29, means only a preference in fraud of the bankrupt act; that is, contrary to its provisions | 1202 |
| The payment by a bankrupt to counsel for services “rendered and to be rendered,” without fraud, is no ground for refusing a discharge | 1198 |
| An insurance made upon house and furniture, in pursuance of covenants in lease, is not a fraudulent preference | 1198 |
| It is no objection to a discharge that the wages of servants were paid after the passage of the act, where they were necessary family expenses | 1198 |
| A fraudulent conveyance made, or a fraudulent preference given, before the passage of the bankrupt act, is not a good ground for refusing a discharge. (Act 1867, § 29.) | 1202 |
| A discharge will be refused, where the bankrupt has sworn that he has no assets, when he has concealed-his property derived from profits in the firm by having his interest held in his wife's name | 314 |
| The bankrupt's wife was made a partner in a business transacted without capital, by purchasing from a member an interest which he had previously purchased from the bankrupt, who all the time continued in the employ of the firm. Held, that the arrangement was fraudulent, and a discharge should be refused for concealment of the bankrupt's interest in the business | 309 |
| The mere purchase and sale of articles will not make a person a tradesman, where the articles were not bought for the purpose of selling again | 1104 |
| A person engaged in farming and in trading live stock is not a tradesman required to keep books of account | 175, 1334 |
| An invoice book by a retail grocer is not necessary where he has so kept his invoice bills that a complete account of all goods received by him can be made out from them | 417 |
| —Scope and effect. | |
| A debt created by the fraud of the bankrupt is not affected by the discharge, though it was proved in bankruptcy | 978, 1194 |
| —Vacating: Setting aside. | |
| A discharge will be set aside, for concealment and false swearing, where deeds from the bankrupt to his wife, through a third person, made without consideration, were asserted to have been burned, and credit was procured on the faith of his ownership of the property, where such deeds were subsequently placed on record, and the property omitted from his schedules | 188 |
| Prohibited or fraudulent transfers. | |
| A transfer of property by deed will be held to have taken place at the time of the actual execution and delivery of the deed, and not at its date | 1153 |
| A transfer by a debtor, when solvent, of an estate greatly in excess of the debt, for which credit was given on the debtor's books, where a settlement was not had until after the insolvency of the grantor, held not a fraudulent preference | 1198 |
| Where a bank holding a note against the bankrupt and also a deposit account in his favor, receives a check against the account to pay the note, with knowledge of the depositor's insolvency, it is not a fraudulent preference, but an adjustment of mutual debts, within Rev. St § 5073 | 1053 |
| A conveyance, not made in the usual and ordinary course of business of a debtor, is prima facie fraudulent and void. “The usual and ordinary course of business” defined | 835 |
| A creditor who had no reasonable cause to believe the debtor insolvent at the time of receiving security may hold it as against the assignee | 279 |
| Knowledge by the bankrupts of facts sufficient to bring to the minds of reasonable men knowledge of their insolvency will invalidate a mortgage of their stock of goods to a creditor | 835 |
| A conveyance of one's whole property to a creditor to secure a pre-existing debt is fraudulent and void, and the intent to prefer may be inferred from the fact of preference | 835 |
| A creditor taking security upon all his debtor's property, knowing it to be insufficient to pay his own debt and the other creditors in full, is chargeable with knowledge that the transaction is in fraud of the bankrupt act | 1049 |
| A sale by a lien holder of property in his possession, belonging to the bankrupt, with knowledge that bankruptcy is imminent, will not be disturbed, if untainted by fraud, and a fair price obtained | 1192 |
| A sale by the bankrupt will not be set aside where the purchaser paid adequate consideration in cash, at the time of the sale | 76 |
| A second purchaser, who had knowledge of the bankrupt's failure, and that the seller held the goods under mortgage from the bankrupt, does not get a good title | 835 |
| Suits and proceedings in relation to the estate. | |
| The assignee can obtain possession of books of account transferred by the bankrupt only by proceeding by a bill in equity or action at law, in which the validity of the conveyance can be tested, and not by a petition | 1132 |
| The expense and delay of a litigation will not justify a compromise in a case where public interests and the due administration of the bankrupt law require the settlement of the questions of law involved by the judgment of the court | 1280 1364 |
| Review. | |
| The circuit court has complete and unlimited control over proceedings in bankruptcy to review the whole case, or any particular question arising in it. (Act 1867, § 2.) | 1306 |
| The distinction between the methods of review in actions in law and suits in equity—one being by writ of error, and the other by appeal—is preserved by section 8 of the act of 1867 | 1306 |
| Questions arising in the progress of a case can be reviewed by the circuit court only by petition | 417 |
| The proper process by which to remove to the circuit court an order granting or refusing a discharge is by petition under section 2, Act 1867 | 1306 |
| The circuit court will not review an incidental question of practice in the district court | 978 |
| Arrangement with creditors: Composition. | |
| Act June 22, 1874, § 17, providing for compositions, is constitutional and valid | 490, 500 |
| To authorize proceedings for a composition, a case in bankruptcy must be pending | 490 |
| The register has power, in composition proceedings, to conduct the inquiries to be made of the debtor, and to take down the substance of his answers, but not to conduct a written examination upon things in general, as in bankruptcy | 1 |
| A creditor whose claim is more than offset by claims of the bankrupt against him cannot vote at a meeting in composition | 61 |
| In the case of accommodation notes given by the bankrupt to a creditor, and afterwards proved against the estate by the holders, held, that the dividend paid upon the notes may be set off against the dividend due such creditors | 61 |
| Any composition is allowable which is satisfactory to the requisite majority of the creditors, and which is for the best interests of all concerned | 61 |
| A creditor who has regularly appeared at the first meeting, but is not present when the vote is taken, is to be counted as voting against the resolution, unless he has clearly indicated his intention not to be counted | 736 |
| A resolution signed by the debtors, and by two-thirds in number of the creditors, representing one-half in value of the debts, is sufficient | 490 |
| A composition for a payment of a certain sum on the dollar in installments—the first in cash, and the others secured by notes indorsed by persons named—is valid | 490, 500 |
| A resolution providing for the giving of notes “satisfactorily indorsed” held defective, in not naming the indorser, or providing for his being named | 490 |
| In such case an additional resolution providing for such security may be adopted at another meeting of creditors, and presented to the court in the same way as the original resolution | 490 |
| The court will not refuse to confirm, nor will it set aside, a composition, because certain property, located in another state, claimed by the bankrupt, was not reckoned, where the bankrupt had been advised by counsel that his claim was baseless, and it appeared that it could not be recovered, except by a long and expensive litigation | 500 |
| A party interested is not entitled, as matter of right, to ask the summary enforcement of a composition by order of court | 531 |
| The performance by the bankrupt of an ex parte order after default will not be compelled, where there is no proof of service in a manner required | 531 |
| An order will not be made, directing the bankrupt to comply with the terms of composition after default by him, where it does not appear that the creditors are willing to proceed with the composition | 531 |
| One who has agreed to become a surety on a composition will not be summarily compelled to give security, where it appears that the bankrupt has abandoned the composition, and has not given the notes agreed | 531 |
| Where notes given upon a composition settlement fall due pending action upon a petition to review the order of confirmation, and petitioners refuse to receive payment, the money must be paid into court, or the bankrupt will be liable to a summary order for payment | 618 |
| Fiduciary debts are discharged by a composition | 1085 |
| Creditors will be held bound by the proceedings had in the pursuance of the resolution of composition, though they are irregular as regards other parties | 1088 |
| Amending and repealing acts. | |
| Where the register to whom the matter had been referred to ascertain the extent of the assets did not make his report until after the passage of the amendment of July 14, 1870, the order of reference was amended so as to comply therewith. | 1081 |
| A petition filed on the same day on which a repealing act was approved by the president, but before the actual time of such approval, gives jurisdiction | 699 |
| BASTARDS. | |
| The circuit court of the District of Columbia has jurisdiction to require the father of a bastard to give security for its support | 1241 |
| BILLS, NOTES, AND CHECKS. | |
| Acceptance. | |
| A draft upon a bank in which the drawer has a fund on deposit, before it is presented to or accepted by the drawer, or charged by it against the drawer, does not operate as an assignment of the fund; and the payee is not entitled to the fund, as against a subsequent assignee for creditors, who first notifies the bank of his title | 1211 |
| The presentation to the drawer of a negotiable draft drawn against a general balance in his hands, less than its amount, without an acceptance by him, does not operate as an assignment of the fund, or create any lien in favor of the holder | 257 |
| To charge the accentor under a conditional acceptance, the holder must show performance of the condition | 359 |
| Validity. | |
| Persons taking notes of a bank are chargeable with notice of the powers of the bank, as granted in its charter | 1167 |
| Indorsement and transfer. | |
| The payee of a draft accepted for the accommodation of the maker, who takes it in satisfaction of a debt due from the maker, or as security, without notice of any fraud on the acceptor, is a bona fide holder for value, and stands in the same position as if the draft were drawn in favor of the acceptor, and indorsed by him to such holder | 32 |
| An, accommodation indorser of a bill of exchange, who pays the same after protest, has a right of action against the acceptor | 1024 |
| In the absence of a special agreement, the liability of acceptor and indorser of a bill of exchange attaches in the order in which their names appear on the bill | 1024 1365 |
| A pre-existing debt is a sufficient consideration for the assignment of a note to close tie equities between the original parties | 801 |
| Demand: Notice: Protest. | |
| Demand, and notice to the indorser, are not necessary, where the maker is insolvent | 757 |
| Want of funds in the hands of the drawee of a bill of exchange renders notice to the drawer of nonacceptance or nonpayment unnecessary | 359 |
| The indorser is, in all cases, entitled to due notice of the dishonor of a bill of exchange | 211 |
| Where a demand is made on the last day of grace, notice to the indorser on the next day is in time | 349 |
| A request by the indorser of a note to the holder to pursue the maker is not evidence of waiver of demand and notice, but the jury may infer therefrom due demand and notice | 787 |
| Actions. | |
| One who takes a check with knowledge that the person who transferred it had no right to do so cannot recover against the drawer | 1262 |
| Fraud or deception in obtaining the note is no defense to a suit by a bona fide holder for value, without notice | 801 |
| An action for money had and received can be maintained in Virginia by an indorsee against a remote indorser of a negotiable promissory note | 756 |
| The payee of a promissory note, who has been obliged to take it up on his indorsement, may recover the amount from the maker, upon a special count | 509 |
| In an action by the indorsee against the indorser of a void note, such note is inadmissible in evidence | 1167 |
| An indorsee may recover against the indorser of a void note by showing the consideration paid therefor | 1167 |
| BILLS OF LADING. | |
| See, also, “Admiralty”; “Affreightment”; “Carriers”; “Demurrage”; “Shipping.” | |
| The necessity to keep schedule time will not justify a vessel in running at full speed in a fog alongshore | 1067 |
| It is bad seamanship to run at full speed in a fog alongshore, where there is danger of a mistake in reckoning | 1067 |
| Losses by “dangers of the seas” are such as are of an extraordinary nature, or arise from irresistible force, which cannot be guarded against by the ordinary exertions of human skill and prudence | 458 |
| The mere rolling of a vessel by a cross sea is not a danger of the sea | 458 |
| Proof that the injury was occasioned by an excepted cause casts the burden on libelant to show negligence, or want of reasonable skill and attention | 1067 |
| BONDS. | |
| See, also, “Municipal Corporations”; “Principal and Surety”; “Railroad Companies.” | |
| A recital in the bond that the interest is to be paid on presentation of the coupons annexed is equivalent to making the coupons payable to bearer | 1077 |
| Breaches of a penal bond must be assigned before judgment | 960 |
| BOTTOMRY AND RESPONDENTIA. | |
| On the necessary abandonment of the voyage in a foreign port after repairs made, the master may hypothecate the vessel for the purpose of getting her back to the owners, or for a voyage to a place where she can be sold without sacrifice | 873 |
| A cargo owner on board at the time of a disaster may take a bottomry from the master for advances necessary to complete the voyage | 1231 |
| Where moneys for necessary repairs in a foreign port have been advanced upon the credit of the vessel owners, a bottomry bond subsequently given therefor by the master is void | 1302 |
| A bottomry bond is not vitiated by the stipulation that the cost of insurance shall be included in the sum to be paid by the ship in case of her safe arrival | 873 |
| A fraudulent sale by the master in a foreign port, for necessary charges, does not affect the lien arising upon a prior bottomry bond | 804 |
| The bottomry lender has the burden of showing that the alleged necessity existed | 87 |
| Acquiescence by part owners in a bottomry loan, the circumstances whereof are suspicious, is evidence that it was bona fide | 938 |
| BOUNDARIES. | |
| See, also, “Adverse Possession”; “Grants”; “Public Lands.” | |
| Marked lines and corners control courses and distances | 1035 |
| Where land was described as bounded on the side of a creek by a line meandering down its center to a station on the bank, and thence from station to station on the bank, held, that the creek constituted the boundary | 134 |
| CARRIERS. | |
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Charter Parties”; “Demurrage”; “Shipping.” | |
| The placing of a ticket on the counter of a ticket office, after the purchaser has laid down his money and gone away, is not a delivery | 138 |
| In an action for wrongful expulsion from a train, plaintiff is entitled to recover damages for loss of time, expenses while delayed, cost of another ticket, and compensation for the indignity put upon him | 138 |
| A steamboat is not liable for the loss of jewelry usually worn by a passenger as a part of her apparel, but left in her stateroom, in a handbag, with other articles of personal use, and stolen while she was at supper | 519 |
| Long-established, uniform, and well-known usage as to the mode of delivery will be considered as a part of the contract of the carrier | 732 |
| A usage to deliver goods consigned to a particular person, though in different parcels, at one place, will relieve the carrier from his responsibility as insurer, where he offers to make such delivery, but the consignee claims the right to require a delivery at different places | 732 |
| A carrier is liable for damages caused by the delay in delivering an unmarked case of goods, whose outer covering, properly marked, was removed while in its custody, where the consignee made repeated demands therefor | 1285 |
| The carrier cannot, of his own motion, set up title in a third person in defense to an action for nondelivery to the shipper or his consignee; but he may set up a delivery to the real owner, upon demand made or suit brought by him | 1206 1366 |
| In a suit against a carrier, by the shipper or consignee, for nondelivery, plaintiff can only recover nominal damages, where they have received the goods or their value from a third person, to whom they were delivered | 1206 |
| Where the season for the sale of the goods has passed, a carrier responsible for the delay in delivering them is liable for damages occasioned thereby, and the diminution in value is properly chargeable as an item of damage | 1285 |
| CHARTER PARTIES. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Demurrage”; “Shipping.” | |
| Where the charter gives possession and control to the charterers for a time certain, with no condition of forfeiture for a breach, the court cannot decree possession to the general owners on a libel alleging a breach of the contract | 4 |
| The court may order a vessel libeled for wages to be delivered to the general owners, where the charterers, who are entitled to possession, refuse to claim her | 4 |
| Where the owner retains the possession and navigation of the vessel, and contracts to carry the cargo on freight for the voyage, the charter party is a mere affreightment, sounding in covenant, and the freighter is not invested with the legal responsibility of ownership | 726 |
| The charter party is a mere contract of affreightment, where the owners agree to keep the vessel tight, staunch, fitted and provisioned, and to receive on board such lawful goods as the charterers or their agents may think proper to ship | 726 |
| In the absence of a special agreement, the duty of the master extends to all that relates to the lading and transportation of the merchandise, and, in the case of a mere contract of affreightment, the shipowners and master are responsible for the faithful performance of these duties | 726 |
| A stipulation that the ship is to employ the charterer's stevedore and clerk does not amount to a special agreement that the charterer shall perform the duty of lading and stowing | 726 |
| Where the owner continues in control of the vessel, he is entitled to a lien for freight on goods of a third person, shipped under contract with the charterer | 1313 |
| The shipper under an ordinary bill of lading has his remedy against the ship, whether the owner retains possession and command, or the control and navigation passes to the charterer; but whether the general owner, or the charterer, is liable, depends upon the terms of the charter party | 726 |
| An agent employed by the charterer of a ship to procure freight, having notice from the owner that he must rely on the personal credit of the charterer, has no lien on the ship for his services | 1034 |
| Under a stipulation by the charterers to furnish a vessel at Calcutta with a full cargo, and, among other articles of freight, “sufficient saltpeter, or its equivalent, for ballast,” held, that the charterer must furnish ballast paying freight | 677 |
| Under such charter the charterer may, at his election, furnish any article which is an equivalent, and answers the description | 680 |
| The master must inform the charterer what quantity of the several articles will be necessary to load the vessel | 677 |
| Though the charter stipulates to carry goods on deck, the master may, for sailor's reasons, refuse to allow them to be so loaded, but in such case the charterer may recover damages in admiralty | 621 |
| The master may also carry more ballast than the charter allows, but the charterer may recover in admiralty compensation for the room thus lost | 621 |
| A provision that the vessel shall sail without delay, and in ballast, to enter upon the charter, is complied with where the vessel carries a cargo of salt, where the charterer is not prejudiced | 527 |
| Where the charter stipulates that the master shall sign a draft on the consignees, in favor of the charterers, for the freight, he cannot refuse his signature on the ground that demurrage is due him | 621 |
| Chattel Mortgages. | |
| See “Bankruptcy.” | |
| CITIZEN. | |
| See, also, “Courts”; “Removal of Causes.” | |
| The status of a child whose mother was a citizen of the United States, and his father an Indian maintaining a tribal relation, is that of the father | 582 |
| CLAIMS. | |
| The commissioners under the French treaty of 1831 could not decide between conflicting American claimants | 766 |
| The share of the loss of an alien partner of a firm was not allowable as a claim under such treaty, but he is entitled to be paid for freight and advances out of the moneys allowed to the other members | 766 |
| Rights of consignees of goods seized by a foreign government under the French treaty of 1831 | 766 |
| COLLISION. | |
| See, also, “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | |
| Nature of liability—Contributive fault. | |
| Where two vessels collide, without blame on the part of either, the loss must be borne by that on which it falls. If both are to blame, it must be apportioned between them. If it is by the fault of one, that must make full compensation | 461 |
| It is not proper for a ship to leave her wharf, in tow of a steamer, on a night so dark that a sail vessel cannot be seen in time to avoid a collision | 342 |
| An error of judgment of a sail vessel, in a maneuver made to avoid an impending collision, brought about by the fault of another vessel, will not be considered a fault | 447 |
| Between sail vessels. | |
| A vessel sailing free must take the proper measures to avoid another closehauled to the wind | 152 |
| Where the wind is equally free to both vessels, approaching in opposite directions, or both have it abeam, each must port her helm | 152 |
| Where vessels are in such position, when within 150 feet of each other, that if no change is made by either they would pass in safety, the vessel having the right of way will be held in fault for a change of course | 1129 |
| In case of a collision between a vessel sailing free and one closehauled, the burden is on the former to prove that she took all proper measures to prevent it | 370 1367 |
| Between steam and sail. | |
| Where a steamer and sail vessel are approaching each other, it is the duty of the latter to keep her course, and of the former to keep clear | 342 |
| The pilot of the steamer must ascertain the true course of an approaching sail vessel, or slacken speed, or stop | 447 |
| A steamer will be held in fault for a collision with a schooner at night, whose change of course was seen in ample time, though the schooner had no lights | 124 |
| Between steam vessels. | |
| A ferryboat must take the ordinary precautions to avoid collisions, though she is compelled to make a certain number of trips within an hour | 263 |
| Both vessels will be held in fault in holding their courses after each has been notified that the other is taking a course which will make a collision inevitable | 134 |
| Where the ascending steamer on the Ohio river, after signaling her course, changes her signal, and the descending steamer answers that she will keep her course, the ascending steamer is bound to follow the course first signaled | 136 |
| Overtaking vessels. | |
| The leading vessel is entitled to hold her course, and the one behind must select such a course as she may safely take to pass, where the vessel ahead does nothing intentionally to thwart or prevent her passing | 646 |
| A vessel which attempts to pass another under circumstances where it cannot be done without imminent danger of collision, where the latter is not in fault, will be held solely liable for resulting damages | 641 |
| A vessel which attempts to pass another while struggling in Hell Gate, there being no fault on the part of the latter, will be responsible if a collision occurs | 641 |
| Running within 20 yards, in an attempt to pass, is negligence | 646 |
| Vessels moored, etc. | |
| A vessel anchored in a proper place is entitled to room enough to swing in safety on as long scope of chain as is necessary to prevent her dragging | 132 |
| A sail vessel approaching a wharf when another is making sail to leave a wharf near by has the right to presume, from the dropping of the sails of the latter, that she will wait until the former comes to anchor | 758 |
| Tugs and tows. | |
| A ship and steamer lashed together alongside, where the latter furnishes the whole motive power, are held to the rules governing steam vessels. | 342 |
| In the case of a collision with a ship in tow of a tug, caused by the negligence of the tug, the tug is liable, where both vessels were in charge of a pilot appointed by the owners of the ship | 554 |
| River and harbor navigation. | |
| Vessels navigating the East river must keep to the center of the stream | 525 |
| Steamers plying upon the East river must use special watchfulness not to interfere with the course of ferryboats crossing the river | 525 |
| A ferryboat making regular trips is nevertheless bound to be prepared for those occasions which call for the exercise of prudence, skill, and caution | 263 |
| The maneuver of forereaching in a harbor is not objectionable, unless there be some reason to apprehend a collision by reason of making it | 393 |
| In the case of two tugs racing to reach a sailing vessel, to speak for employment the one which first arrives is entitled to its position, and the other must take the proper measures to avoid a collision | 848 |
| Lookouts, officers, etc. | |
| Lights should not be placed in the bows of a ship in such a position as to prevent the lookout from seeing ahead | 342 |
| Absence of a lookout, unless shown to have contributed to the collision, does not render liable a vessel which is otherwise faultless | 241 |
| A usage with coasting vessels to run, under certain circumstances, without a lookout, will be disregarded | 370 |
| The failure of the steamer to have a lookout as provided by law casts on her the burden to show that she was not in fault | 447 |
| Particular instances of collision. | |
| Between schooner sailing free and schooner closehauled, where the latter was held in fault for coming about, where the other vessel had taken proper measures to avoid her | 690 |
| Between steamer and sail vessel, where the former had no lookout, and mistook the course of the latter, and was held solely in fault for the collision | 447 |
| Between steamer and schooner at night, where the latter was held in fault for a change of course when near the steamer, and after the steamer had changed her course to avoid collision. (Reversing 124.) | 126 |
| Between steamers in Hell Gate, where the overtaking vessel was held in fault for not stopping in time to allow the other to get ahead of her | 14 |
| Between the last of two barges, towed directly astern of a tug, and 1,000 feet therefrom, and a passenger steamer on Long Island Sound, on slightly crossing courses, where the steamer was held in fault for not discovering the tow, which carried the regulation light | 639 |
| Between bark at anchor in New York harbor, and tug coming down the river, where it was held that the former's lights were sufficient, and the tug was solely at fault | 165 |
| Between brig at anchor in a proper place, and ship subsequently anchored near, which dragged her anchor and went astern, where the brig subsequently drifted nearer the ship, and they came together on the turn of the tide | 132 |
| Between vessel at anchor without a light, and vessel coming into harbor and entering the anchorage ground under full sail, where both were held in fault | 1304 |
| Between two tugs racing to reach a vessel, to speak for employment | 848 |
| Procedure. | |
| A libel for collision cannot be brought against a vessel in rem and her owner in personam, unless her owner is also master | 688 |
| All the owners of the injured vessel should be joined as libelants | 688 |
| The libel must set out, as far as practicable, the material circumstances attending the collision | 143 |
| In the case of collision between two steamers, libelant must not only show fault on the part of the other steamer, but also that his vessel was free from fault | 525 |
| Where the injury complained of is admitted by the answer, claimant has the burden of showing affirmatively the matters of justification or defense set up | 646 |
| Rule of damages. | |
| The owner of the injured vessel is entitled to receive a remuneration which will place him in the situation in which he would have been but for the collision | 636 |
| Damages may be given, above the amount of actual injury, in case of a willful and malicious collision | 201 |
| The crew are justified in leaving the injured vessel, where her condition at the time appeared to be desperate, although she might have been saved; and the measure of damages is the full value of vessel and freight | 370 1368 |
| The sum necessary to repair the injured vessel may be recovered, though libelant has sold her without making such repairs | 639 |
| Where respondent declines to produce any evidence on the reference to ascertain damages, libelant need only establish a prima facie case | 383 |
| An allowance for loss by delay while undergoing repairs cannot be based upon speculative and conjectural opinions as to the probability of the employment of the vessel, and the amount of her earnings | 849 |
| In the case of a tug, the proper inquiry is as to what she could have been chartered for, per day, in the business of towing, regard being had to the market price | 849 |
| Where, in the case of a vessel running on a line, no vessel was hired to supply her place while undergoing repairs, an allowance of interest upon her value, at the rate of 6 per cent. per annum, while undergoing repairs, was upheld against an appeal by both parties | 645 |
| The demurrage clause in the charter is sufficient evidence of the measure of damages for detention while the vessel is undergoing repairs | 383 |
| In the absence of direct evidence of the amount of loss from delay while making repairs, interest upon the value of the vessel during such time may be awarded | 636 |
| Division of damages. | |
| Where a collision occurs by the willful fault or intentional wrong of both parties, the damages will not be apportioned, but the libel will be dismissed | 848 |
| The rule as to the division of damages in cases of mutual fault only applies where both vessels are in fault at the time, and in the acts which produced the collision, and where the faults, are not egregiously unequal | 201 |
| In a case of mutual fault, where the damages are to be equally divided between the vessels, the court may order the vessel most to blame to pay all the costs | 845 |
| Review. | |
| On appeal by one party alone from a decree finding mutual fault, the circuit court cannot inquire as to the fault of the party not appealing | 136 |
| Compositions. | |
| See “Bankruptcy” | |
| CONFLICT OF LAWS. | |
| In an action in the federal court on a state court judgment of another state, the statute of limitation of the place of the action may be pleaded in bar | 260 |
| A discount of notes in Rhode Island, procured there by an indorser, where the money is there paid, held a Rhode Island transaction, though the note was made in New York, where the maker resided, and where it was dated and made payable | 20, 22 |
| CONSTITUTIONAL LAW. | |
| See, also, “Criminal Law.” | |
| The question of the constitutionality of an act will not be determined, where the case may be decided on other points | 242 |
| An act validating conveyances of land made under a joint power of attorney from husband and wife is constitutional, as respects prior deeds, when no vested rights are infringed | 234 |
| Act Miss. Nov. 29, 1865, creating a levee district, and imposing a specific tax of 10 cents per acre upon the land included therein, in default of payment of which on a day named the land may be sold without notice, held a valid exercise of the power of taxation | 1265 |
| The revenue act which prohibits a suit to restrain the assessment or collection of any tax authorized is not unconstitutional, either as depriving the party of his property without due process of law, or as refusing a trial by jury | 44 |
| A state may pass a law barring the right of action, from lapse of time, on the record of a judgment of another state | 260 |
| The statutes of South Carolina requiring the arrest and detention in jail of colored seamen coming into ports of the state during the time their vessel remained in such state are valid and constitutional | 937 |
| CONSULS. | |
| A consul of a foreign power, though his sovereign is also represented by an ambassador, is entitled to intervene in a suit in admiralty for all subjects of that power interested | 1060 |
| A consul in a foreign port, under whose authority a vessel is sold, cannot acquire an interest therein under the sale | 804 |
| CONTINUANCE. | |
| A motion for a continuance, made at the first term after joinder of issue, granted, on the ground of the severe illness of defendant's attorney, who had charge of the case and previous cases involving the same subject-matter | 1338 |
| A continuance will not be granted on the affidavit of an attorney, stating what his client told him | 354 |
| CONTRACTS. | |
| See, also, “Assumpsit”; “Frauds, Statute of”; “Sale”; “Specific Performance”; “Vendor and Purchaser.” | |
| A verbal agreement which is to be put into writing and signed the next day is not complete, so as to bind either party, until reduced to writing and signed | 787 |
| An agreement by defendant to ship certain goods, on the faith of which the consignees accepted a draft for the amount, held enforceable by them without a consideration moving from them to defendant | 148 |
| When a penalty is inserted in a contract, neither party has a right to avoid the contract by paying the penalty | 985 |
| A clause stating that, “in further confirmation of the said agreement, the parties bind themselves, each to the other, in the penal sum of $1,000,” held a stipulation for a penalty, and not for liquidated damages | 985, 996 |
| CONVERSION, EQUITABLE. | |
| Real estate devised to executors with a direction to apply the rents and profits until the happening of a certain event, and then to sell it and divide the proceeds among certain persons, is, in equity, to be considered as personalty from the death of the testator | 360 |
| The shares of the legatees who die before the time of sale go to their next of kin, as personal property | 360 |
| It is no exception to the rule that land directed by will to be sold and turned into money is considered as money from testator's | 1369 |
| death, because the period of sale is remote, and the conversion cannot be made until the time arrives | 806 1369 |
| Where the proceeds of lands devised to be sold are given to a feme covert, who dies before a sale, the right to the legacy devolves upon her husband, and, if he also die before the sale, it goes to his representatives, and not to the next of kin of the wife | 806 |
| On the bequest of the proceeds of land to a residuary legatee, none but the first taker, and a person who is entitled to the whole surplus, can make an election to consider the proceeds as land | 806 |
| Convicts. | |
| See “Pardon.” | |
| COPYRIGHT. | |
| A literary composition may be a book entitled to copyright, without being printed | 898 |
| The novelty of a design may consist in the form, outline, or grouping, or in the use, combination, arrangement, or harmony of colors, or the combination of some or all of these attributes | 722 |
| The right to a copyright in a musical composition depending upon authorship, and what constitutes an infringement therefor | 431 |
| The fact that playing cards may be used by persons to violate the laws against gambling does not, of itself, deprive them of the protection of the law | 723 |
| Public representation of a drama is not a publication, within the meaning of the act requiring a copy to be deposited within a certain time | 898 |
| The notice of copyright is sufficient, in the case of an engraving, when engraved on the plate, and printed from it in such a position as not to be covered when the picture is properly framed, with a reasonable margin | 1253 |
| An agreement by an actor and stage manager, with the proprietor of a theater, to write a drama, which should be performed in his theater so long as it should draw good audiences, does not give the latter a right to the copyright | 898 |
| Where the publisher takes the copyright in his own name, with the knowledge and acquiescence of the author, he is the lawful owner, subject to the condition of accounting to the author pursuant to the contract | 51 |
| Such publisher cannot transfer the copyright to a third person, but may sell his stereotype plates, and authorize the purchaser to publish, accounting to the author pursuant to the contract | 51 |
| In such case the author has no right to print an edition for himself, and take out a copyright, so long as the publisher complies with his contract | 51 |
| An action at law for infringement must be brought within two years thereof | 431 |
| Every printing for sale is a new infringement, though the plates were engraved more than two years before the commencement of the suit | 431 |
| The statutory penalty for violation of a copyright is not incurred by printing so much of a book as amounts to an infringement, but only by a transcript of the entire work | 1114 |
| A design for playing cards is infringed by the appropriation of those features which substantially embrace the novelty of the conception, and the value in the application of the art of the designer | 722 |
| The copyright for an engraving is infringed by reproducing copies of it by the photographic process | 1253 |
| An assignee of an exclusive right of acting and representing a drama for one year throughout the United States, excepting five specified cities, may maintain a suit in his own name to enjoin a mere wrongdoer | 898 |
| The record of a copyright, made in the form prescribed by the statute of 1831, is at least prima facie evidence that a printed title to the book was duly deposited in the clerk's office | 898 |
| CORPORATIONS. | |
| See, also, “Banks and Banking”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers.” | |
| Public laws limiting corporate powers are notice as well to persons out of the state where the laws were passed as to those within it | 1159, 1167 |
| Directors de facto are to be considered, prima facie, as directors de jure | 1080 |
| A conditional subscription may be reduced or modified, according to the terms of the condition, while the corporation is solvent | 79 |
| The subscription to stock cannot be rescinded so as to affect the rights of creditors while the corporation is insolvent | 79 |
| The corporation need not resort to a sale of the shares of a stockholder to enforce his subscription, but may maintain an action against him | 1079 |
| In an action for an unpaid subscription to stock, the stockholder, who has exercised rights as such, cannot deny the existence of a corporation | 1080 |
| In an action for an unpaid subscription to stock, plaintiff need not show that the managers were elected by a majority of votes | 1080 |
| The fact that a subscriber was appointed by the stockholders, and had acted as one of the managers of the corporation, is prima facie evidence of an admission on his part of the existence of the corporation | 1080 |
| The original subscription book held prima facie evidence of the genuineness of the subscriptions, and that they were made by persons duly authorized | 1080 |
| The exception in the charter of the right to call on unpaid stock in case “of losses exceeding the means of the corporation” does not limit the right of the company or court to an assessment for payment of losses only | 544 |
| A corporation, while solvent, may buy in and retire a portion of its capital stock without relieving other stockholders from their liability to calls on their unpaid stock | 544 |
| Upon a sale of stock, paying par value, with the addition of a certain sum, to cover an anticipated dividend, held, that the purchaser might recover back such addition, where the dividend was not earned or declared | 793 |
| Notes given by a corporation in violation of law are void, even in the hands of a bonafide holder | 1159, 1167 |
| Authority to mortgage the corporate franchises cannot be implied where express authority has been given to mortgage real estate | 264 |
| COSTS. | |
| Costs in admiralty, though resting in the discretion of the court, are usually given to the prevailing party | 476 |
| Costs were denied libelant, and given to claimants, on a libel against a steamer for injuries caused by her swells, by passing at rapid speed near a pier at which libelant's vessel was moored, where no notice of the claim was given in advance of bringing suit | 641 1370 |
| Costs will not be awarded against claimants in a suit on a bottomry bond, where there appeared some reason for contesting it | 873 |
| Where two libels are filed in admiralty, where only one is required, costs in one only are allowed | 1294 |
| Costs will not be given on separate libels by seamen for wages on the same voyage | 440 |
| The claims for costs of parties appearing in admiralty voluntarily, to protect their own rights, are entitled to only the same priority with their other claims | 1090 |
| A printed paper is to be taxed for as if it were written | 974 |
| Plaintiff will be required to give security where he is a nonresident, and the use plaintiff has removed from the district | 911 |
| Security for costs may be given at any time before judgment on the rule | 580 |
| The law of Maryland respecting security for costs and fees does not apply to suits in equity | 329 |
| Counties. | |
| See, also, “Municipal Corporations”; “Railroad Companies.” | |
| COURTS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Equity”; “Habeas Corpus”; “Judges”; “Justices of the Peace”; “Maritime Liens”; “Removal of Causes.” | |
| Comparative authority of federal and state courts: Process. | |
| In the case of concurrent jurisdiction, the court which first takes jurisdiction cannot be interfered with by any other | 969, 1325 |
| Nonresident legatees, having been made parties, by order of publication, to a suit in the state court for the settlement of an estate, and having knowledge thereof, cannot sue in the federal court to have the estate administered | 482 |
| A bill will lie in the federal court to compel satisfaction from the debtors of a corporation of a judgment obtained against it in a state court, where the citizenship of the parties is such as to confer jurisdiction under the judiciary act | 79 |
| The life of a process in rem in admiralty does not end with its return, and if, at any time before the marshal is discharged, his custody becomes legal, the jurisdiction of the court becomes complete from that time | 1219 |
| A sheriff's levy under an attachment is terminated by an order of the state court appointing a receiver of the debtor, and a seizure by the marshal, then in possession under admiralty process, becomes legal | 1219 |
| Federal courts—Jurisdiction in general. | |
| The powers of the federal courts, under the constitution and laws of the United States, are as distinct as the courts of distinct governments | 969 |
| The constitutional provision that the judicial power shall extend to all cases arising under the laws of the United States is not a self-executing power, and does not vest the courts with jurisdiction without the action of congress for that purpose | 852 |
| The federal courts have no jurisdiction to restrain a sheriff from selling under an execution issued from a state court | 1325 |
| —Grounds of jurisdiction. | |
| The federal courts have no jurisdiction, on the ground of subject-matter, of a bill to restrain a collector of internal revenue from the collection of an alleged illegal income tax | 852 |
| The federal court has no jurisdiction, on the ground of subject-matter, of a controversy which turns upon contracts in reference to letters patent, rather than upon the letters patent themselves | 262 |
| In order to give jurisdiction to the federal circuit court one party, plaintiff or defendant, must appear by the record to be a citizen of the United States | 305 |
| An American citizen will not be deprived of his right to sue in the federal court on the ground that he is not a citizen of any state, except on strong proof | 148 |
| Where the bill avers the citizenship of a defendant, the court will not, on affidavit, and on the hearing of an application for an injunction, dispose of the objection that defendant is an alien, except in a clear case | 305 |
| Joining an alien with a citizen will not affect the jurisdiction, especially if the alien is not a material party | 305 |
| Where all the defendants are citizens of the state, one cannot file a cross bill against the others as to matters not set up in the original bill, in which the original complainants have no interest | 79 |
| The assignee, suing in his own name, must show in his declaration that his assignor, at the time of the assignment, might have brought the suit in his own name. (Act 1789, § 11.) | 1117 |
| —Circuit courts. | |
| The equitable jurisdiction of the circuit court is not limited by the equitable powers of the state court | 264 |
| The effect of redistricting the state of Pennsylvania on causes then pending on the dockets considered | 631 |
| The circuit court in one state, in a suit for infringement of patents, cannot restrain plaintiff's suing in other jurisdictions for the same infringements | 1339 |
| —Administration of state laws. | |
| On questions of a commercial and general nature the federal courts are not positively bound by the decisions of the state courts | 801, 1002 |
| Decisions of a state court on the liability of parties to negotiable paper are not controlling on the federal courts | 801 |
| —A proper decision of the court on the construction of a state statute will control until the court has authentic evidence of a different interpretation by the highest court of the state | 707 |
| The construction by a state court of its statute of limitations, as applicable to judgments of other states, is binding on the federal court in an action therein on such a judgment | 260 |
| —Procedure. | |
| Under the act of June 1, 1872, the federal district and circuit courts were required to conform to the state practice in common-law cases, when practicable | 553 |
| The regularity of proceedings will be decided by the state laws and the decisions of the state courts | 553 |
| Local courts. | |
| Powers of the circuit courts in the territory of Arkansas | 1217 |
| The circuit court of the District of Columbia has no jurisdiction where two separate causes of action, amounting together to more than $20, are joined in one declaration, where neither amounts to $20 | 771 |
| CRIMINAL LAW. | |
| See, also, “Extradition”; “Habeas Corpus”; “Pardon.” | |
| The probable cause referred to in Const. U. S. Amend. 4, as the basis of a warrant of arrest, must be submitted to the committing magistrate, who must judge of the sufficiency of the grounds shown for believing the accused party guilty | 1336 1371 |
| Before issuing the warrant, the magistrate should have before him the oath of the real accuser to the facts on which the charge is based, and on which the belief or suspicion of guilt is founded | 1336 |
| An affidavit based solely upon information and belief, where the names of the informants are not given, is not sufficient | 1336 |
| CURTESY. | |
| In Maine the husband is entitled to hold a trust estate of his wife as tenant by the curtesy | 1056 |
| CUSTOM AND USAGE. | |
| A usage or custom is admissible to ascertain the nature and extent of contracts arising from implications, presumptions, and acts of an equivocal character, or to ascertain the true meaning of particular words in an instrument, when they have various meanings; but it is inadmissible to control, vary, or contradict a written and expressed contract | 458 |
| A custom that the owners of packet vessels on a certain line should be liable only for damage to goods occasioned by their own neglect is inadmissible to vary the common bill of lading, by which the goods were to be delivered in good order and condition, the dangers of the seas only excepted | 458 |
| A usage or custom of a particular port in a particular trade is not such a usage or custom as will, in contemplation of law, limit control, or qualify the language of contracts of insurance | 1118 |
| A usage or custom, to control a contract of insurance, must have been a known general usage or custom in the trade, applied to all ports of the state, and so notorious as to afford a presumption that all contracts of insurance in that trade are made with reference to it, as a part of the policy | 1118 |
| CUSTOMS DUTIES. | |
| Customs laws. | |
| A customs law plainly imposing a discriminating duty against the manufactures of a certain country will be construed as a repeal, pro tanto, of a provision of a treaty against discriminating duties | 1171 |
| Terms in a tariff act are to be construed according to their commercial meaning at the time the act was passed, unless it appear by the act itself that a different meaning was intended | 1155 |
| An article not named in the act of 1846 does not come under the clause providing for nonenumerated articles, where it so resembles some enumerated article, in quality, material, or use, as to be governed by the similitude clause of the act of 1842 | 1241 |
| Rates of duty | |
| Duties on colored hosiery, under Act July 30. 1846, as amended by Act March 3, 1857 | 504 |
| Linen pocket handkerchiefs, hemstitched or hemmed, held dutiable as “linens or a manufacture of flax,” and not as “articles worn by men, women or children, made up wholly or in part by hand.” (Act Aug. 30, 1842.) | 717 |
| Hearth rugs, made of worsted, held not dutiable as manufactures of wool. (Act July 14, 1832.) | 781 |
| Singing birds held subject to duty as “live animals,” under Act May 16, 1866, though in the previous act of 1861 they were specially mentioned | 479 |
| Twisted straw, used for making straw laces, not known in commerce at the time of the passage of the tariff act held not dutiable as straw manufactures, but as articles not otherwise specially provided for | 630 |
| Polished window glass held dutiable under Act July 30, 1846, as manufactures of glass not otherwise provided for | 1155 |
| Invoice: Entry: Appraisal. | |
| The market value at the port of exportation is to be taken as the price of the goods, and a discount allowed the purchaser cannot be deducted from their invoice value | 774 |
| The addition to the invoice value of an arbitrary and fictitious charge for export duty at the place of exportation is erroneous | 774 |
| It is error to charge a greater sum for commissions than the usual charge in the place of exportation | 774 |
| Where the assessor computes foreign money at a higher rate than that fixed, the excessive duties, if paid under protest, may be recovered back | 1155 |
| An importer is not entitled to an allowance for depreciation of the Austrian currency, unless his invoice is accompanied by a consular certificate of the value of such currency | 677 |
| The collector need not demand such certificate, but it must be offered by the importer, or a bond to produce it | 677 |
| In the case of importations about a month apart held sufficient where a consular certificate was presented with the first importation only | 623 |
| Payment: Protest. | |
| An official appraisement, not appealed from, is conclusive as to the dutiable value of goods, when the protest does not point out any violation of law in making it | 1136 |
| Actions for duties paid. | |
| The importer cannot sue the collector to recover an excessive duty, or a penalty paid for alleged undervaluation, without having first appealed to the secretary of the treasury. (Act March 3, 1857, § 5.) | 504 |
| An action for the repayment of duties paid by the collector into the treasury intermediate the passage of the acts of March 3, 1839, and February 26, 1845, if commenced within six years of the latter date, is not barred by the New York statute | 707 |
| Bonding: Warehousing. | |
| When goods are withdrawn from a warehouse, the collector may exact the proper rate of duty, where they have been entered at too low a rate | 504 |
| DAMAGES. | |
| See, also, “Carriers”; “Collision”; “Contracts”; “Patents.” | |
| The measure of damages for the failure to ship goods as agreed held to be their value at the place of shipment at the time of refusal under the contract | 148 |
| In an action here to recover a certain number of pounds sterling, payable in London, the measure of damages is the intrinsic value of the pounds, measured in our dollars | 510 |
| A verdict of $1,052 for wrongful expulsion from a train, held, should be set aside, unless plaintiff should elect to reduce his judgment to $152 | 138 |
| DEBT, ACTION OF. | |
| An action of debt lies for breach of a contract to pay a sum certain in an indefinite quantity of cattle and horses | 228 |
| An action of debt lies to recover a penalty given by a statute which prescribes no particular remedy for enforcing it | 1214 1372 |
| DEDICATION. | |
| To constitute a valid dedication of property to public use, there must be not only an intention to dedicate, but an act manifesting such intention | 954 |
| A statement by the owners, when platting land, that a block without number or mark was to be a public square, is a dedication for that purpose | 1301 |
| A dedication will not be presumed from a long-continued acquiescence of the owner in the use of the property by the public, where such user is by his license, and not adverse | 954 |
| Verbal declarations of a surrender of control of property to municipal authorities temporarily do not import a legal dedication | 954 |
| The consent of the owner of land to the construction of a road upon it for his own and the public use, does not make out a valid dedication | 954 |
| A purchase by a city of the rights of parties occupying ground claimed as dedicated to the public does not affect its claim under the dedication | 1301 |
| A dedication once made cannot be recalled, and the intention of the owners at the time is to be considered | 1301 |
| Evidence of continued claim of title and the exercise of acts of ownership may be conclusive to rebut a presumption of dedication | 954 |
| DEED. | |
| See, also, “Acknowledgment”; “Boundaries”; “Vendor and Purchaser.” | |
| Each state has a right to regulate the transmission of real property therein by deed or by operation of law, and a deed executed in any other state for lands in Michigan is valid, without regard to the residence of the parties | 1159 |
| A deed in Illinois of a surety on a postmaster's bond, not left for record until after a defalcation of the postmaster occurred, is void, as against the United States | 1242 |
| A deed of an attorney in fact, manifestly intending to convey the title of the principal, is ineffectual, unless the attorney either signed the name of the principal, with a seal annexed, stating it to be done as attorney, or signed his own name, with a seal annexed, stating it to be done for the principal | 228 |
| A defective acknowledgment of a deed in Rhode Island renders it void as to all persons except the parties and their heirs | 695 |
| The legislature may remedy a mere formal defect of deed previously executed | 318 |
| The omission to specify a thing without which the things specified would be of no value does not exclude it, where it may be covered by a general description | 32 |
| DEMURRAGE. | |
| A master who insists on waiting until the wharf to which the vessel was consigned is unoccupied, where the consignee offers to receive the cargo at a safe and suitable adjoining wharf, cannot recover demurrage for the delay | 864 |
| DEPOSITION. | |
| Notice given at noon to take a deposition between 4 and 6 o'clock of the same day is not reasonable | 533 |
| The time for taking testimony under a commission will be enlarged to let in newly-discovered evidence, where the party has not been guilty of any laches | 1299 |
| A deposition taken by plaintiff cannot be read in evidence by defendant, where the testimony would not have been competent for defendant if the deposition had been taken on his part | 481 |
| A complainant in equity who takes the deposition of the adverse party without a previous order of court, specially reserving his rights, is not thereby estopped to deny the truth of his evidence | 833 |
| Depositions taken under a commission to another state cannot be read where the other party was not served with a copy of the interrogatories, and notice of the rule and of the names of the commissioners | 631 |
| A deposition taken in chief under a commission may be read, unless the other party can prove that the witness is within reach of the process of the court | 759 |
| Where a deposition is taken under a rule to be read if the witness is unable to attend, such inability must be shown, or that the witness lives beyond the reach of a subpoena | 349 |
| Depositions opened out of court, and without the consent in writing of the opposite party, cannot be read in evidence | 1175 |
| Form of certificate to a deposition taken under the act of congress | 187 |
| The depositions cannot be read unless it appear by the certificate of the commissioners that they were taken at the place indicated | 631 |
| Where the authority of the officer taking a deposition under the act of congress appears on its face, it is, prima facie, sufficient proof of his authority | 1313 |
| It must appear from a deposition taken under the act of congress that the witness was sworn to testify the whole truth, and that the deposition was written by the magistrate, or by the deponent in his presence | 187 |
| The failure to answer the general interrogatory is fatal to the deposition | 709 |
| A witness cannot be asked if the facts stated in an ex parte certificate are true. He should be interrogated as to those facts particularly | 709 |
| Postage paid on a commission should be allowed, as part of the costs thereof | 13 |
| DESCENT AND DISTRIBUTION. | |
| In the case of the death of one of two illegitimate children, unmarried and without issue, the mother being also dead, his property descends to the brother, under the Illinois statute of wills | 1130 |
| “Children,” as used in such statute, is not confined to children born in lawful wedlock | 1130 |
| “Next of kin to the mother,” in such statute, includes illegitimate as well as legitimate children | 1130 |
| Where two persons perish in the same event, there are no presumptions of law as to survivorship, unless prescribed by positive enactment | 1006 |
| The presumption of law as to survivorship prescribed by Civ. Code La. arts. 936939, where two persons perish in the same event, only applies in absence of circumstances of the fact, and where the persons are respectively entitled to inherit from one another | 1000 |
| In the case of a man of 68 and of a woman of 44, the presumption, under Civ. Code La. art. 939, is that the man perished first | 1006 |
| The burden of proof of survivorship, in the case of persons perishing in the same event, is upon him who seeks to disturb the possession of others founded thereon | 1006 |
| Where a sale of decedent's lands to pay debts is set aside upon a bill of review, and a decree of restitution obtained, the heirs are entitled to an account, and a discovery of profits | 841 1373 |
| DISCOVERY. | |
| Defendant, after judgment in ejectment and new trial allowed, cannot file a bill for discovery whether the conveyance to plaintiff was not merely colorable, and made in order to give tie court jurisdiction | 722 |
| DISTRICT ATTORNEYS. | |
| Distribution of fees, where part of the services were performed during the term of a predecessor | 854 |
| DISTRICT OF COLUMBIA. | |
| Fines, penalties, and forfeitures, under by-laws of “Washington, D. C, and the jurisdiction and procedure for collecting and enforcing the same | 404 |
| DOMICILE. | |
| See, also “Prize”; “Removal of Causes”; “War.” | |
| The presumption arising from actual residence in any place is that the party is there animo manendi, and the burden is upon him to show the contrary | 1107 |
| DOWER. | |
| A widow is not entitled to dower in a trust estate field by her husband for third persons, nor in a reversion or remainder in a legal estate held by him | 1056 |
| The right of dower, before the same becomes vested on the death of the husband, is under the absolute control of the legislature, and it may enact that deeds theretofore executed under a joint power of attorney from husband and wife shall bind the wife | 234 |
| All the substantial requisites of the statute must be complied with, in taking a relinquishment of dower | 318 |
| A widow who receives the portion of her husband's estate devised and bequeathed to her is not entitled to a share in the personalty, as to which tie husband died intestate | 422 |
| EJECTMENT. | |
| See, also, “Adverse Possession.” | |
| Any subjection of land to the dominion of a party, such as cultivation or other subsequent use, is sufficient evidence of possession to enable an adverse claimant to maintain ejectment against him. Actual occupation in person, or by an agent or servant, is not essential | 134 |
| The construction and maintenance of a bridge over a creek abutting on premises claimed held sufficient evidence of possession to maintain ejectment | 134 |
| ELEGIT. | |
| Execution of the writ and the rights of the tenant by elegit secured thereunder | 1148 |
| EMBARGO AND NONLNTER-COURSE. | |
| Goods of British manufacture, though imported from a neutral country, held forfeited under Act March 1, 1809, c. 91 | 1176 |
| EQUITY. | |
| See, also, “Courts”; “Injunction”; “Patents”; “Pleading in Equity”; “Practice in Equity”; “Specific Performance.” | |
| It is only between equal equities that the rule applies, “Prior in tempore, potior in jure.” | 985 |
| A mistake of law, in the absence of fraud, is no ground of relief in equity | 985, 996 |
| A creditor, who has a specific lien upon the income of property which has gone from the debtor into the hands of a third person may maintain a suit in equity against him to enforce it | 843 |
| A conveyance by a daughter, owner of the reversion, to her father, who had a life estate, as tenant by the curtesy, set aside for want of consideration, and on the ground of undue influence | 95 |
| A bill will not lie against a feme sole to compel her to make an acknowledgment of a deed made by her and her husband in his lifetime, where it appears that the sale was made without her consent, and that she received no part of the purchase money | 15 |
| A mistake in a conveyance will not be corrected, to the prejudice of bona fide purchasers from the grantee | 474 |
| A party compelled to ask the aid of a court of equity to enforce his legal rights will be compelled to do equity, and relief will be granted only to the extent of his equitable rights | 766 |
| A demurrer to a bill on the ground of staleness will not be sustained unless the delay is such as to bar an action at law upon the same claim | 79 |
| Escheat. | |
| See “Aliens.” | |
| ESTATES. | |
| Where the legal estate and the trust estate are coextensive, and both become vested in the same person, there is a merger of the trust estate in the legal estate | 1056 |
| ESTOPPEL. | |
| A party is not estopped, by a judgment at law in a suit in which he might have set off his demand, from subsequently suing to recover the same | 1053 |
| The manufacturers received pay for an engine on the false representation that it had been finished and delivered for transportation. Held, where they subsequently built the engine, and marked it with the customer's name, that he was entitled to it, by estoppel, as against their assignee in bankruptcy | 1071 |
| EVIDENCE. | |
| See, also, “Appeal”; “Deposition”; “Trial”; “Witness.” | |
| Judicial notice. | |
| The court will not take judicial notice of how long it may take an express company to carry money between two places | 665 |
| Presumptions: Burden of proof. | |
| A deed will not be presumed as between parties who do not sustain the relation of vendor and purchaser | 281 |
| A deed stating a nominal consideration cannot be presumed to have been made for an illegal consideration from the fact that a deed on the day before was made on such consideration | 759 1374 |
| Best and secondary. | |
| The declarations of a person in whose favor a letter of guaranty is given are inadmissible for plaintiff in an action thereon | 481 |
| To admit parol proof of the contents of a debt, the original must be proved to have been lost or destroyed | 281 |
| Secondary evidence will not be admitted where a written contract was not lost nor destroyed, but only mislaid, though the party makes oath that he has made diligent search, and cannot find it | *793 |
| Declarations and admissions. | |
| The declarations and admissions of prior owners of a vessel, not a part of the res gestæ, are not evidence against subsequent bona fide purchasers | 1300 |
| The declarations of an ancestor, while a slave, are inadmissible | 130 |
| Declarations of deceased persons that a certain person was free are admissible in evidence to show that fact | 130 |
| Documentary. | |
| The charter of a corporation may be proved by the pamphlet laws of the state, published by the authority of the legislature | 1079 |
| A record of a state court, which sets forth proceedings warranted by the law of that state is entitled to verity, although not formal in some particulars | 978 |
| An examination under proceedings supplementary to execution is a “judicial proceeding” within the act of congress relating to authentication of records of state courts | 1153 |
| In a suit by seamen against the master plaintiff may read in evidence an answer by defendant in a prior suit between the parties for wages | 211 |
| A copy of an official letter of instruction from the state auditor to a county auditor, certified by the latter, is admissible | 335 |
| The statement of an officer in his certificate of his official character is prima facie evidence of the fact | 631 |
| Where the officer does not state his official character, the omission may be supplied by proof at the trial | 631 |
| An instrument can be proved by the subscribing witness only where it is not shown that he cannot be produced | 654 |
| Parol evidence. | |
| A party may show that a deed is void for fraud or illegality. | 760 |
| Competency: Materiality: Relevancy. | |
| Evidence to prove a particular course of trade, or other matters in the nature of facts, is proper; but not to prove how a law is considered by merchants | 1295 |
| Handwriting. | |
| Handwriting of a party may be proved by a comparison of hands where it is the best evidence the nature of the case will admit of | 481 |
| Weight and sufficiency. | |
| Direct testimony of the signing of an instrument will outweigh negative testimony by a person acquainted with the handwriting, where both witnesses are equally credible | 831 |
| A bill of parcels, receipted by defendant, is not per se evidence of an unexecuted contract to deliver the goods, but is prima facie evidence of a contract executed | 725 |
| EXECUTION. | |
| See, also, “Attachment”; “Bankruptcy”; “Elegit”; “Garnishment”; “Judgment.” | |
| An execution delivered to the marshal will supersede one delivered to a constable subsequently, but first levied | 757 |
| Money in the hands of a sheriff cannot be levied on nor applied to an execution against the plaintiff | 533 |
| Money in the hands of defendant may be seized on execution and credited as a payment | 533 |
| Land must be sold on execution under the law in force at the time the contract was entered into | 1310 |
| A marshal's sale on execution of land in which defendant had no interest will be set aside on motion of the purchaser, who was deceived or misinformed, where the sale has not been completed | 1079 |
| A suit in rem for forfeiture of property by reason of violat:on of the internal revenue laws is a “common-law cause,” within the meaning of Rev. St. § 916, and, after the return of execution against the stipulators unsatisfied, supplementary proceedings, under the New York law, are properly taken | 121 |
| EXECUTIVE DEPARTMENTS. | |
| The acts of agents of the treasury department in stating and settling accounts of officers and issuing warrants for balances found due are ministerial acts, and the authority given by law must be strictly and literally pursued | 242 |
| Act May 15, 1820, in relation to the settlement of accounts of military and naval officers charged with the disbursement of public moneys, does not apply to a mere acting purser in the navy | 242 |
| After the accounts of an officer of the navy have been once stated and settled by the treasury department, the auditor has no power to open or resettle them of his own mere authority | 242 |
| EXECUTORS AND ADMINISTRATORS. | |
| A creditor appointed administrator on his petition will not be removed on the petition of the next of kin, without cause | 1118 |
| The administrator should give a bond sufficiently large to cover the amount which is in equity due the representatives from the government, where there is a bill in congress for an appropriation | 706 |
| An administrator has no authority to sell an estate held by his intestate in trust for other persons as assets to pay the debts of the intestate | 1056 |
| Exemptions. | |
| See “Bankruptcy.” | |
| EXTRADITION. | |
| No authority is required from the executive to enable a judicial officer to issue a warrant for the arrest of an alleged fugitive from justice, under the treaty with Great Britain of August 9, 1842, and the acts of congress to carry it into effect | 1228 |
| Upon the hearing, copies of depositions and of warrants and other papers certified under the hand of the person issuing them, and attested upon the oath of the party producing them to be true copies, are admissible | 1228 |
| FACTORS AND BROKERS. | |
| A broker whose principal writes him to charter a vessel has authority to make a binding verbal agreement to that end | 146 |
| Authority to a consignee to furnish a cargo under a charter gives no right to waive any of its stipulations, or make any agreement as to the manner in which the ship shall be loaded or ballasted | 680 1375 |
| The factor is under no obligations to complete a purchase for the principal, where the latter has failed to send the money therefor as agreed | 665 |
| The act of the factor in selling goods below the limited price is ratified where he renders an account of the sales and prices, and the principal draws on him as authorized for the balance, and makes no objection thereto | 747 |
| An action for money had and received lies against an agent employed to sell goods on commission, who has received the proceeds, which have been lost through the embezzlement of a person employed by him | 345 |
| The consignors, by bringing assumpsit for the proceeds of cargo taken under legal process by the consignees for a debt of the prior owners of the shin, waive the tort, and defendants are entitled to the customary commissions, and are chargeable with interest | 755 |
| The consignee to whose possession the property has not come, it having been seized by a foreign government is only entitled, out of the indemnity awarded, to his expenses and commissions | 766 |
| FALSE IMPRISONMENT. | |
| A justice of the peace, who either requests, directs, or commands a constable to arrest a person out of his jurisdiction, is liable for false imprisonment | 1005 |
| FISHERIES. | |
| See, also, “Seamen.” | |
| The custom of the port where the vessel is owned and from which a fishing voyage is made as to the amount of the master's share will control | 668 |
| FORFEITURE. | |
| See, also. “Customs Duties”; “Informers”; “Internal Revenue”; “Shipping.” | |
| On a libel for forfeiture, doubtful circumstances, which the original owners might explain, have not the same weight against bona fide purchasers, who are not presumed to be conversant of them | 1300 |
| FRAUD. | |
| Courts of common law and equity have concurrent jurisdiction in cases of fraud | 631 |
| Fraud will never be presumed. The facts to show it must be clearly stated and proved | 759 |
| FRAUDS, STATUTE OF. | |
| A contract for the sale of the notes of a private bank is within the statute of frauds | 787 |
| A separate and express promise by a partner to pay a debt of the firm is not a promise to pay the debt of another within the statute of frauds | 657 |
| Acts done by the vendor alone will not take a verbal sale of land out of the statute | 473 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Bankruptcy.” | |
| An assignment of an equitable estate in lands under a bond for title made to indemnify sureties, and without intent to delay or defraud creditors, is valid | 615 |
| An absolute deed of household furniture and of a stock in trade is fraudulent and void as to creditors unless the possession bona fide accompany and follow the deed | 446 |
| The fact that the possession remained with the seller for justifiable purposes will not vary the rule that possession must accompany the sale | 1144 |
| A fraudulent conveyance is binding upon parties and their privies | 235 |
| GARNISHMENT. | |
| See, also. “Attachment” | |
| A direction by the debtor to the garnishee to pay the debt to the attaching creditor, where he assented to it, is equivalent to payment, so far as subsequent attachments are concerned | 1305 |
| GRANT. | |
| See, also, “Public Lands.” | |
| The district court has no jurisdiction to divide and partition a claim under a Spanish land grant among claimants | 90 |
| Claim to a Mexican land grant rejected on the ground of the insufficiency of the evidence to establish the bona fides of the grant | 397 |
| Where no grant, either perfect or inchoate, was made, nor any promise given that a grant would be made, mere occupation pending an application for the land does not constitute a valid claim | 1141 |
| GUARDIAN AND WARD. | |
| A motion for the appointment of a guardian to an infant party must be in writing, and must state the name of the person proposed, and his consent to be appointed | 630 |
| A guardian has power to convey land in trust to secure a debt due to the elegit creditor of his wards, and an exoneration of the lien created by the elegit | 1148 |
| Where infants are brought into court, a guardian ad litem may be appointed without a commission | 509 |
| HABEAS CORPUS. | |
| The writ may be issued to inquire into the cause of commitment under a civil process, as well as in the case of a criminal process | 242 |
| A debtor discharged under the insolvent act and arrested for a debt accruing before his discharge may be discharged upon habeas corpus | 369 |
| The writ will issue where colored prisoners have been tried capitally before a state court by a jury exclusively white, in contravention of Rev. St. § 641 | 586 |
| The writ will-issue on petition by a federal officer arrested by the state authorities, alleging that he is held in custody for an act done under authority of the United States | 214 |
| Notice to those who represent the state, as required by the local authorities, is not essential | 214 |
| The writ may issue to relieve an officer of the federal government who has been imprisoned under state authority for the performance of his duty | 969 |
| The writ will issue by a federal judge where a marshal is imprisoned under a state court process for not producing persons on a writ issued by such judge, and he will be discharged where it appears that such persons were legally in his custody, pursuant to the provisions of an act of congress | 965 1376 |
| The decision of the federal court on a petition by a federal officer, alleging that he is held in custody by the state authorities for an act done under authority of the United States, is binding on the state courts | 214 |
| A state court may issue the writ to inquire into the cause of detention of a person held under authority of the United States, and may discharge him where he is illegally held 592. contra | 695 |
| Where the return to a writ issued by the state court that the prisoner is held as a deserter from the army is traversed, the court may inquire into tie truth of the facts allleged, and may discharge the prisoner if it appear that he is illegally held | 592 |
| Where it appears on the writ of habeas corpus that the imprisonment is under the authority of an act of congress, the jurisdiction of the state court is at an end | 965 |
| One decision on habeas corpus is not final where a full trial was not had | 969 |
| The decision of a state court remanding the prisoner on habeas corpus proceedings is no bar to the subsequent issue of the writ by a federal court, and a full investigation by it of the cause of detention | 592 |
| A proceeding by writ of habeas corpus is not a criminal proceeding, but is a civil action, within act July 2, 1864, and the prisoner may testify in his own behalf | 592 |
| HOMESTEAD. | |
| See, also, “Bankruptcy.” | |
| A homestead exemption against levy by execution founded noon “any demand for any debt contracted” is good against judgments for torts, both principal and costs | 154 |
| HUSBAND AND WIFE. | |
| A married woman, who comes into Massachusetts without her husband, he never having lived with her in the state, has full power to contract as if she were sole | 1305 |
| Where a married woman took a deed in her own name for property purchased with a separate paraphernal fund and with community funds, held, that the property belonged to the community, and the wife became the creditor of the community for the amount invested by her | 486 |
| A married woman is not bound by a false declaration made in a mortgage executed by her to the effect that the mortgaged property was community property | 486 |
| A widow, by reacknowledging a deed executed by her while married, and therefore void, gives it full validity and force, though she do not re-sign it | 774 |
| INDIANS. | |
| See, also, “Citizen.” | |
| The Indian nations are treated as sovereign communities possessing the right of free deliberation and action, but owing a qualified subjection to the United States | 582 |
| Members of an Indian tribe, who scatter themselves among the citizens of the United States, will he held equally therewith subject to the jurisdiction of the federal courts | 582 |
| INFANCY. | |
| See, also, “Guardian and Ward.” | |
| An infant, after the death of his father, cannot recover his wages for services performed in the lifetime of the father under a contract made with the father | 1063 |
| A father assigned a portion of his infant son's wages in consideration of the assignee's engaging to teach the boy a certain trade. Held, that the son could not recover money thus received by such assignee in an action for money had and received | 1063 |
| INFORMERS. | |
| An informer has no legal or equitable right to compensation save as provided by law | 1017 |
| The district courts, as courts of admiralty, have jurisdiction of the question who are entitled to the proceeds of a seizure as informers or otherwise. | 1017 |
| Where the fact that a party is informer is not in controversy, a court of common law or equity may sustain a suit for an account and distribution of his share | 1017 |
| INJUNCTION. | |
| See, also, “Patents.” | |
| On a bill for specific performance, where defendant, before the hearing, will probably render itself incapable of performing the contract specifically, an injunction will be allowed only where the bill states a case for the relief asked | 1245 |
| A circular addressed to policy holders, stating that the company would not insist upon a forfeiture of policies for nonpayment of interest, is a waiver of a forfeiture, available in a court of law, and a suit will not lie to enjoin the company from setting up the forfeiture by way of defense in an action at law | 1045 |
| A threat to commence a suit in a state court on a city ordinance in conflict with a commercial regulation of congress is no ground for an injunction in the federal circuit court, as there is an adequate remedy at law by defense in the state court, and an ultimate review by writ of error in the supreme court of the United States | 1111 |
| Where an injunction is granted on a bill to stay proceedings in a suit at law commenced by a foreigner, the court will not permit the answer to be filed by his attorney, upon whom the subpoena was served | 350 |
| A temporary writ will be granted where, without it, great injury may happen to the complainant, and no injury can result from it to the defendant | 32 |
| The amendment of a bill upon which an injunction has been granted before answer filed will not affect the injunction granted on the original bill | 350 |
| A motion made after five years to dissolve an injunction absolutely, without an answer, will be denied | 350 |
| A delay in the prosecution of a bill in equity is no ground of dissolving an injunction continued to the hearing, where defendant resides abroad, beyond the reach of the process of the court | 350 |
| An injunction till answer will not be dissolved until all of the defendants who are interested have answered | 985 |
| An averment in the answer, not responsive to any allegation in the bill, is not per se evidence against complainant on a motion to dissolve an injunction | 985 |
| INSANITY. | |
| A formal gift by assignment of a policy while the insured was judicially declared insane, held ratified by his declaration that he had given the policy, made after he was declared sane | 141 1377 |
| INSOLVENCY. | |
| See, also, “Bankruptcy.” | |
| A discharge under the insolvent law of a state as to a debt contracted out of the state will not discharge the person of the debtor | 840 |
| Plaintiff may maintain an action, though discharged as an insolvent debtor since the cause of action accrued | 771 |
| INSURANCE. | |
| See, also, “Marine Insurance.” | |
| The words used in a policy will be construed in their ordinary and commonly received meaning where there is nothing to show that they were intended to be understood in a special sense | 823 |
| Omissions or misrepresentations of facts material to the risk in an application will avoid the policy where the agent had no knowledge of the premises | 1255 |
| Misrepresentations do not avoid the policy where the company's agent makes the survey and the representation of the property to be insured, being as well acquainted with its situation as the insured | 1255 |
| Under a policy insuring persons against loss on certain merchandise, “their own, or held by them in trust or on commission,” held, that the insurance was on the goods, and not on the interest of the insurers, and parol evidence was inadmissible to show a different intent | 858 |
| Under the clause in a reinsurance policy, “loss, if any, payable at the same time, and pro rata with the insured,” the reinsurer is liable to pay the amount the first insurer is liable for, and not the amount it actually pays | 548 |
| Construction of the clause providing that in the ease of other insurance, the insured should be entitled to receive no greater proportion of the loss sustained than the loss bears to the whole amount insured | 865 |
| In the case of an insurance by a person of goods held by him in trust, and also by the owner, held, that the policies were contributory | 858 |
| Insurance against accident “while traveling by public or private conveyance” does not cover an accident occurring to the insured while journeying on foot along a public road | 823 |
| “Accident” includes any event which takes place without the foresight or expectation of the person acted upon or affected by the event, and will include an assault made by persons who have waylaid the assured for purposes of robbery or otherwise | 823 |
| Charge to a jury on the question of suicide set up in defense to an action on a life policy | 818 |
| Where the insurance company has failed to object to a matter of form in the proof of loss until too late to remedy it, it is estopped to set up the defect | 548 |
| An assignment by the assured and his wife of a life policy payable to the wife “or assigns,” by its terms absolute, but intended as collateral security to the assignee for premiums he should pay on the policy, is not invalid under the laws of New York | 1036 |
| An agreement by the widow of the insured and beneficiary under the policy, with an assignee thereof, to receive a certain sum in satisfaction of her interest, held a ratification of his authority to collect the amount from the insurer | 1036 |
| Where losses were to be paid by assessments upon policy holders, who were at liberty to pay or not, as they elected, the collection of such assessments cannot be enforced | 6 |
| The failure of the company to make assessments regularly from month to month, as provided in the policy, cannot be retrieved by an assessment by the court on the bankruptcy of the company | 6 |
| INTEREST. | |
| A judgment in Iowa upon coupons made there and payable in New York, but silent as to interest, will draw interest at the legal rate in Iowa | 1115 |
| INTERNAL REVENUE. | |
| Rectifiers are bound to keep the book prescribed by Act July 13, 1866, § 26, and make the proper entries in it, whether the revenue commissioner has prescribed any rules and regulations on the subject or not | 107 |
| All ambiguous entries in the book are to be taken most strongly against the rectifier where discrepancies are not explained | 107 |
| The rectifier must himself make the entry in the book required by Act July 20, 1868, § 45 | 110 |
| The fact that spirits are purchased for less than the amount of the tax upon them is sufficient, in the absence of explanatory circumstances, to show that the purchaser could not have believed that the tax was paid | 107 |
| Where spirits are found upon a rectifier's premises, and no proof is given that the tax has been paid, it may be assumed as a matter of law and fact that the tax, had not been paid | 107 |
| The fact that spirits are properly branded by the government inspectors is not evidence that the taxes on them have been paid | 107 |
| A rectifier “knowingly and willfully” neglects to comply with the law where it was his will, freely exercised, that stamps should not be canceled when barrels were emptied on his premises; and all distilled spirits owned by him are forfeited for such neglect (Act July 20, 1868, §§ 43, 96.) | 116 |
| Distillery property libeled for alleged violation of the revenue laws will not be bonded where there is reasonable ground to believe on the evidence that the law has been violated | 105 |
| On such application the government need not furnish the details of its evidence further than is necessary to show reasonable and probable ground to sustain the prosecution | 105 |
| Unstamped packages of tobacco and cigarettes, found in a tobacco store, are forfeited under Act July 20, 1868, § 70. | 122 |
| The expression, “in fraud of the internal revenue laws,” means “in violation” of such laws. (Act July 30, 1864, § 48, amended Act July 13, 1866, § 9.) | 122 |
| Having on hand unstamped packages of tobacco for the purpose of being sold without payment of tax is good ground for forfeiting the entire establishment | 122 |
| The intention on the part of those in charge of a tobacco store to violate the law in relation to the goods that were taxable by not canceling the stamps on packages that were sold, as required by Act July 20, 1868, § 72, will forfeit the whole establishment. | 122 |
| A tax deed made by the sheriff and tax collector does not require a stamp, under Act July 13, 1866. | 1265 |
| Property bought and paid for by the husband, and deeded to his wife under an understanding that it should be willed to him, held liable to the succession tax, where it is subsequently devised to the husband. | 296 1378 |
| A fund accumulated in 1863 by a railroad company, in government bonds, as net earnings, and turned over in 1867 to a trustee for the stockholders on the consolidation of the railroad with another, held not liable to tax as income | 625 |
| A suit in equity will not lie to restrain the collection of an income tax on the ground that the act of congress imposing the tax is unconstitutional and void | 863 |
| The assessment or collection of any tax authorized cannot be restrained where the officer has power to inquire and determine whether the thing assessed by him is liable to taxation, however erroneous his decision of that question may be | 44 |
| Interpreter. | |
| See “Witness.” | |
| JOINT TENANCY. | |
| A mortgage to four persons will not create a joint tenancy, unless the words clearly and manifestly show such an intention | 235 |
| A conveyance by one joint tenant of his share will sever the joint tenancy | 1056 |
| In equity, where there is a joint tenancy in a mortgage, the surviving mortgagee will be held a trustee for the representatives of the deceased comortgagee | 235 |
| JUDGE. | |
| A judge of the federal district court, while sitting alone as circuit judge in the circuit court, has the same power and jurisdiction as any other judge sitting in the same court | 1046 |
| Where one judge has denied a motion, another judge of the same court has jurisdiction to grant leave to renew it | 1046 |
| JUDGMENT. | |
| Lien. | |
| An interest in lands acquired at an administrator's sale, before title is passed, is liable to the liens of judgment creditors | 615 |
| Judgments entered on the same day create equal liens, and the issuing of an execution on any one of them does not affect the lien of the others and the proceeds on a sale should be distributed pro rata | 1073 |
| Operation and effect. | |
| The recital in a decree of due service of process is conclusive, unless contradicted by something in the record itself, showing that such recital is not or could not be true | 770 |
| A fraudulent sale and conveyance by an administrator, confirmed by a decree of the court, may be questioned and declared bad in an ejectment or other action as well at law as in equity | 631 |
| It cannot be set up, to avoid the bar of a judgment entered upon a verdict, that the evidence was wholly insufficient to establish the claim, or that no evidence was offered or received by the court | 213 |
| Proof outside of the record is not admissible to contradict it where it would affect the rights of third persons acquired under the decree | 770 |
| To render a former adjudication an estoppel, the point adjudicated must have been admitted or distinctly nut in issue in the course of the former adjudication, and must so appear of record | 79 |
| A decree in a patent case declaring certain claims void, but sustaining another, and directing an account, is not final, and does not make the question of the validity of the claims res judicata | 1342 |
| The discharge of a trustee in an action at law at nisi prius, to which discharge exceptions are pending in a law court, cannot be pleaded as a judgment in bar of another action | 1049 |
| A prior decree in admiralty, when set up as a bar, should be given in evidence, and not be made the basis of a summary motion to prevent further hearing | 439 |
| A verdict and judgment at law against the validity of a patent bars a suit in equity on the same patent between the same parties | 619 |
| Relief against: Opening: Vacating. | |
| Equitable relief against a judgment at law is granted only where the judgment is obtained in consequence of accident, mistake, or fraud, without any fault of the injured party, who has no remedy, or has without fault lost his remedy at law | 183 |
| Relief on the ground of surprise at the trial and indisposition of counsel on the motion for a new trial, preventing a full and fair hearing, will be refused | 183 |
| The fact that a judgment at law was obtained through the inattention and neglect of defendant's counsel, who was not pecuniarily responsible for the amount, is no ground of relief in equity | 1122 |
| Execution will be enjoined where a judgment of law has been obtained by surprise or without the knowledge of defendant or his counsel, where defendant had taken a bill of exceptions, and intended to prosecute a writ of error | 850 |
| Where the right to answer has been absolutely waived, the court has no power to open a default | 1219 |
| A judgment by default and writ of inquiry set aside at the following term upon affidavit of merits, payment of costs, plea to the merits instanter, and offering ready for trial | 489 |
| To open a judgment by default in Wisconsin, a copy of the proposed answer and affidavit, excusing the default, and an affidavit of merits, must be recorded | 553 |
| Of different jurisdictions. | |
| The validity of a decree in a suit brought to enforce a trust by the substitution of a trustee in the place of one deceased, made by the court in the county where the land lay, though all the persons in interest were not made parties, cannot be collaterally questioned in another tribunal. | 228 |
| Actions on judgments. | |
| A plea that the judgment was obtained by fraud, duress, etc., is bad on demurrer | 260 |
| A judgment against the principal debtor in a foreign attachment is not evidence in another state of a debt due | 756 |
| JURY. | |
| In an action of tort in the federal court, where defendant suffers a default, plaintiff has no constitutional right to have the damages assessed by a jury, but such assessment may be made by the court. | 332 |
| It is no ground of challenge that a juror is an alien | 130 |
| A challenge for favor will be tried by the jurors already sworn 130, | 370 |
| Evidence as to the prevailing opinion of individuals of the religious sect to which the juror belongs is inadmissible on trial of a challenge for favor | 370 |
| JUSTICES OF THE PEACE. | |
| A justice of the peace has no jurisdiction of an action against an administrator | 842 1379 |
| LANDLORD AND TENANT. | |
| The landlord has no lien in Louisiana on the insurance moneys where goods of his tenant are destroyed by fire. | 510 |
| Goods of the tenant levied upon under execution, though not removed from the premises, are not subject to distress for rent | 528 |
| LARCENY. | |
| An indictment for larceny held not sustained on proof of a loan of money by the witness to the confederate of the prisoner, who won it from him by gambling | 99 |
| LIBEL AND SLANDER. | |
| Proof of the authority for and the truth of a statement is admissible only in mitigation of damages | 1140 |
| Plaintiff's character being put in issue in an action for libel, plaintiff may give evidence of his character before it is attacked by defendant | 1140 |
| Liens. | |
| See “Admiralty”; “Affreightment”; “Bankruptcy”; “Carriers”; “Charter Parties”; “Maritime Liens,”; “Shipping.” | |
| LIMITATION OF ACTIONS. | |
| See, also, “Adverse Possession”; “Ejectment”; “Equity”; “Maritime Liens.” | |
| Construction of the limitation laws of Ohio of February 25, 1824, February 22, 1830, February 18, 1831, February 28, 1846, March 22, 1849, and Code, tit. 2, § 7 | 24 |
| Statutes of limitation are founded on sound policy, and should not be evaded by a forced or astute construction. | 905 |
| The state statute of limitations may be pleaded in bar to an action for the infringement of letters patent, brought in a federal court in the state 681; contra, | 357 |
| The statute of limitation is not applicable to a suit by a vendor of land, who has retained title as security, to subject the land to the satisfaction of the purchase money | 228 |
| The limitation of an action to foreclose a mortgage applies to an action to reform and foreclose a mortgage | 474 |
| In cases of concurrent jurisdiction courts of equity are bound by tie statute of limitations, but in the consideration of purely equitable rights and titles they act in analogy to the statute, and are not bound by it | 1017 |
| Under a statute which provides that the time during which the person shall be under disability shall not be computed, held, that where it had once begun to run it would continue to run over all subsequent disabilities | 895 |
| An objection to the running of the statute in an action for the recovery of land founded upon the allegation that defendant's possession was obtained by fraud can only be made by the party injured by the fraud | 24 |
| Time begins to run against a trust as soon as it is openly disavowed by the trustees insisting upon an adverse right and interest, which is unequivocally made known to the cestui que trust | 1017 |
| “Persons beyond seas” means persons not residents of the state | 24 |
| Anything added, going to negative a promise or acknowledgment, must be considered as qualifying every other expression | 359 |
| The admission of the receipt of goods, coupled with a claim of payment, will not take the case out of the statute. | 620 |
| An acknowledgment of a note, and that it had not been paid, coupled with a statement that payment would be resisted, held sufficient to take the case out of the statute | 653 |
| A promise to account, though the debtor adds that he owes nothing, will amount to a promise to pay if it appears on the account that anything is due | 359 |
| A conditional promise to pay will not remove the bar of the statute unless the condition is performed | 359 |
| A promise to pay if the creditor will prove his demand, is sufficient to take the case out of the statute | 359 |
| Less strictness of proof is required to establish a promise before the statute has run than to prove a new promise after the debt has become barred | 408 |
| The court will not give leave to file the plea of the statute out of time, especially where there has been negligence and no pretense of merits. | 433 |
| LOST INSTRUMENTS. | |
| The payee of a lost inland bill of exchange is not liable to the indorsee unless the latter has offered indemnity against the lost bill and demanded a new bill from the drawer | 783 |
| LOTTERIES. | |
| A conveyance of land lying in New Jersey, founded on a lottery consideration, is void, within the lottery act of that state, although the lottery was contrived and drawn in another state | 760 |
| MALICIOUS PROSECUTION. | |
| Demanding excessive bail where plaintiff has a good cause of action or holding to bail where there is no cause of action, if done vexatiously, will sustain an action for malicious prosecution. | 330 |
| The failure of the plaintiff to recover in a suit instituted by him does not establish the fact that the action was vexatious or unfounded. | 330 |
| Probable cause of action in a suit upon the failure to recover in which an action for a malicious prosecution is instituted is a sufficient answer to such a suit. | 330 |
| In an action for a malicious prosecution the records of other actions brought by defendant against plaintiff are inadmissible. | 330 |
| MANDAMUS. | |
| The courts have no power to cause the writ to issue to the head of an executive department to compel the performance of an act not merely ministerial, but involving the exercise of judgment | 456 |
| MARINE INSURANCE. | |
| See, also, “Average.” | |
| The contract. | |
| The omission of the master to communicate the loss of the vessel, where willful and with a fraudulent design to enable the owner to make insurance, will not render void a policy thereafter obtained by the owner, who acted with entire good faith | 1321 |
| A mistake in the marks of goods insured held not material where the intention was apparent. | 1295 |
| A policy upon “outfits” and upon “catchings” substituted for the outfits in a whaling voyage protects the “blubber” when on deck | 1118 1380 |
| In a time policy on a vessel in her home port when made, seaworthiness at the time of sailing is an implied warranty | 1269 |
| In the case of perishable cargo there can be no recovery except in the case of an absolutely total Joss. | 1002 |
| It is a total loss where, by reason of the perils insured against, the cargo is permanently prevented from arriving at the port of destination | 1002 |
| Potatoes are deemed perishable articles within the memorandum of the policy of insurance | 1002 |
| Abandonment. | |
| The owner of a perishable cargo at a port of distress may abandon it and recover for a total loss where it will be totally lost before repairs to the vessel can be completed, and no vessel can be found in which to transship it | 1002 |
| A capture as prize will authorize an abandonment as soon as notice is received, provided the loss continue to the time when the abandonment is made | 131 |
| A recapture with a view to salvage produces only a temporary interruption of the voyage where the salvage and expenses do not exceed one-half the value, and gives no right to abandon | 131 |
| Where the voyage is lost or rendered worthless by the recapture, or where the salvage expenses are very high, the assured may abandon | 131 |
| The warrant of survey, and report made thereon, under which the vessel is sold, is the best evidence as to the condition of the vessel at the time, and testimony of the master is not admissible, except to prove the facts contained in the report | 1001 |
| The loss of the warrant cannot be proved by a certificate of the registrar of a vice admiralty court. | 1001 |
| The rule with regard to the half value is that the vessel, after repairs made, shall be of double the value of the cost of the repairs without any deduction of one-third new for old | 1002 |
| A clause in relation to the right to abandon the vessel held inapplicable to the cargo | 1002 |
| Suits. | |
| A suit on a policy of insurance is properly brought in the name of the real owner, whose property was intended to be insured, though the name of the agent only appears in the policy | 1295 |
| Proof of a capture by a foreign privateer held sufficient evidence of total loss after three years, without showing a condemnation. | 1295 |
| MARITIME LIENS. | |
| See, also, “Admiralty”; “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Demurrage”; “Salvage”; “Seamen”; “Shipping.” | |
| The right to a lien. | |
| No lien attaches upon a domestic vessel for work and labor done and performed on her except by statute 334, | 354 |
| A lien arises under the general maritime law for necessary supplies properly furnished to a vessel on her credit in a foreign port. | 1243 |
| A lien arises where the master is also one of the charterers, and consequently without authority to bind the owners, where he has no funds or credit belonging to himself or the vessel | 1243 |
| A maritime lien does not arise for repairs made in a foreign port by persons who lived in the same place with the owner, and dealt with him personally, keeping a running account with him. | 1154 |
| A maritime lien is not implied for necessary supplies furnished a vessel in a foreign port by the direction of a managing owner there present superintending her affairs and ordering the supplies | 477 |
| The fact that tie material man gave credit to the vessel, where nothing was said between the parties as to the credit, and the owner supposed that credit' was given to him, will not create a lien. | 477 |
| Priority and enforcement. | |
| As to the priority and order of payment of maritime liens. | 23 |
| Claims for materials furnished in a foreign port take precedence of those for materials furnished in the home port | 580 |
| Liens founded upon the necessities of vessels in foreign ports take precedence of mortgages recorded in the home port 453, | 580 |
| A purchase-money mortgage, recorded under Re v. St. § 4192, takes precedence of liens, under the local law, for materials furnished in the home port at the instance and request of the master or owners | 580 |
| Claims were marshaled as follows: (1) Seamen suing for wages; (2) material men; (3) a consignee, for money advanced for towage, pilotage, light money, and port duties, each claim carrying its own costs | 1090 |
| The lien of the shipper of goods on freight against the vessel for loss or damage by the fault of the master or the insufficiency of the vessel arises at the time that the misfortune happened, and his claim is preferred to that of general creditors of the owners | 373 |
| Sureties for the claimants, who are compelled to pay a salvage decree, are not entitled to priority over valid mortgages which antedated the salvage services. | 894 |
| The person who, at the request of the owner of a vessel seized in a foreign port for supplies furnished, signs a stipulation for its release, and subsequently pays the amount decreed against the vessel, is not subrogated to the lien discharged thereby | 940 |
| The right to sue in admiralty to enforce a claim for supplies and repairs to a vessel is personal, and cannot be maintained for the benefit of an assignee of a duebill or promissory note given to secure the claim. | 541 |
| The objection that the vessel for which supplies or repairs are furnished is not one fitted for navigation on the high seas must be taken by answer. | 541 |
| On a libel for supplies, claimant has the burden to show that the credit was given to the owner, and not to the vessel | 5 |
| Waiver: Discharge: Extinguishment. | |
| The right of preference over general creditors of the claim of a shipper for loss or injury of his goods may be lost by unreasonable delay. | 373 |
| The lien of such shipper is not defeated by a bona fide sale before he has had an opportunity for enforcing it, especially where the purchaser has knowledge of his claim. | 373 |
| A delay to enforce a lien will avoid it only where it is unreasonable, operating to the prejudice of third persons, after opportunities have existed to enforce it. | 5 |
| A lien on a vessel, given by the general maritime law or by the local law, for materials used in her construction or repair, is not extinguished by the giving of a note to the material man | 334 |
| The lien is discharged where a note or other security is given which, by the law of the place, discharges the original contract, and the jurisdiction in admiralty cannot be revived by a surrender of such note or security. | 541 |
| The taking of a duebill or promissory note in Maryland does not discharge the lien | 541 |
| The fact that the holder of an admiralty lien has recovered judgment for the amount of his claim in a court of law in a suit in personam does not constitute a bar to a proceeding in admiralty to enforce such lien | 1125 1381 |
| Liens under state laws. | |
| Act Me. Feb. 19, 1839, giving a lien for labor and materials furnished under a “written or parol agreement,” includes all parol agreements, whether expressed or implied | 354 |
| Such statute does not give a lien for services performed under a hiring at monthly wages for any kind of labor required upon various vessels | 354 |
| No lien arises under 2 Rev. St. N. Y. 405, § 2, for services and supplies furnished a domestic vessel in her home port, at the request of her master and owner, to fit her out for a foreign voyage, and to be paid for on her return | 529 |
| Liens created under state laws for repairs and supplies do not adhere after the vessel has left the jurisdiction of the state. | 1154 |
| Liens on domestic ships, given by a state statute in cases of contracts maritime in their nature, may be enforced in the federal district courts in admiralty | 683 |
| The lien given by the local law for supplies furnished a domestic vessel may be enforced in the district courts in admiralty | 869 |
| The lien given by Code Va. 1873, c. 147, § 5, for supplies furnished in a home port, is enforceable by a libel in rem in admiralty, as such lien is predicated upon a credit given the vessel itself | 195 |
| A lien given by the local law to a subcontractor for labor in building a vessel is valid and enforceable in admiralty, though the owner is not personally liable therefor 65, | 67 |
| The provision of a state statute that a lien given thereby shall not be enforced within 60 days is inapplicable to a suit in admiralty to enforce such lien. | 683 |
| When the district courts and state courts have a concurrent jurisdiction in rem, the right to maintain the jurisdiction attaches to that tribunal which first exercises it and obtains possession of the thing | 869 |
| A vessel in the hands of a sheriff under process of a state court to enforce a lien given by the local law for materials furnished is not subject to seizure by the marshal on a libel in rem in admiralty to enforce a similar lien. | 869 |
| Filing a claim in admiralty, stating the prior attachment by the state court process, and claiming protection in regard thereto, held not a submission of the jurisdiction of the court | 869 |
| A vessel seized by a sheriff on process by a state court to enforce a lien given by the local law is still subject to seizure on a libel in rem in admiralty to enforce a lien given under the general maritime law | 784 |
| MARSHAL. | |
| The marshal of the District of Columbia is not a county or corporation officer, and he cannot be required by the orphans' court of the county of Alexandria to administer the estate of a deceased person. | 810 |
| The marshal is not entitled to poundage on the attachment of money on deposit in a bank, where the same is not taken into his actual custody | 816 |
| The person to whose use the suit is entered of record is not liable to the marshal for his poundage on a ca. sa. | 815 |
| The marshal may recover his poundage from defendant, committed in execution, in an action of assumpsit. | 815 |
| MASTER AND SERVANT. | |
| The act of a servant must be done in the course of his employment to render the master liable therefor. | 627 |
| MORTGAGES. | |
| See, also, “Acknowledgment”; “Chattel Mortgages”; “Shipping.” | |
| Whether an absolute deed may be considered a mortgage, and under what circumstances such deed may become absolute as appears on its face | 740 |
| A stipulation that on default of the payment of interest the principal shall become due, is not a penalty, and equity will not relieve the party therefrom | 1327 |
| In the case of conflict, the clause creating the lien will control the description of lands. | 822 |
| General terms of description are controlled by subsequent particular terms. | 32 |
| A mortgage to secure future advances will not secure advances made after actual notice of a subsequent mortgage, in the absence of a binding contract to make such advances. | 822 |
| The point that the mortgage is invalid as having been taken in violation of the national banking act, when not made in the pleadings, though disclosed in the proof, will not be acted upon by the court. | 832 |
| A receiver will not be appointed on foreclosure of a mortgage, where it is clear that the property will bring enough to pay the debt, interest, and costs | 32 |
| On a foreclosure of a mortgage of a portion of a road operating as a part of a larger line, where no separate accounts are kept, held, that the master properly made a pro rata estimate of the earnings and expenses of the whole road. | 38 |
| On foreclosure of a mortgage in default of payment of interest, under the usual interest clause, giving the mortgagee the option to consider the whole amount due after such default, the decree will be granted for the full sum, though the bill does not allege option by the mortgagee and notice. | 105 |
| MUNICIPAL CORPORATIONS. | |
| See. also, “Railroad Companies”; “Towns.” | |
| Bonds issued by a municipal corporation, contrary to the restrictions of its charter, are binding in the hands of a bona fide holder for value, and the holders of bonds regularly issued cannot assail their validity or claim priority of payment | 269 |
| In an action by a bona fide holder on a municipal bond issued under authority of law, mere irregularity, or fraud or misconduct of the agents of the municipality, cannot be set up as a defense | 1152 |
| Mere suspicion of title, or the knowledge of circumstances which would excite suspicion on the part of a prudent man, or gross negligence at the time of the transfer, will not defeat the purchaser's title as a bona fide holder | 1152 |
| The fact that overdue and unpaid coupons were attached to the bond is not sufficient to put the purchaser on inquiry. | 1152 |
| A tax levied and collected as required by law to pay interest on certain bonds cannot be diverted to other purposes. | 269 |
| An injunction to restrain a city from receiving city script in payment of arrears of taxes levied to pay interest on certain bonds will be denied where it appears that, unless such script is taken, the taxes cannot be collected at all. | 269 |
| Negotiable Instruments. | |
| See, “Bills, Notes, and Checks.” | |
| NEUTRALITY LAWS. | |
| The court of admiralty has no power to order restitution of a British ship, brought into oar ports after seizure by French prisoners, who were being conveyed therein to England | 488 1382 |
| NEW TRIAL. | |
| Errors of the court in matters of law constitute a valid ground for a new trial | 1066 |
| A verdict will not be set aside as against the weight of evidence unless it appear that the jury was palpably mistaken, or that the weight of evidence was decidedly against their verdict | 928 |
| The knowledge and diligence of counsel are to be considered on the subject of new evidence, the same as those of the party | 365 |
| Affidavits of jurors are not admissible to show the mode of computation adopted by the jury to be contrary to the law and the evidence | 1337 |
| NUISANCE. | |
| Where there is a question whether a building will be a nuisance, its construction will not be enjoined. | 212 |
| PARDON. | |
| A pardon on condition of paying a fine and costs imposed with a sentence of imprisonment is wholly inoperative until such fine and costs are paid; and an application for discharge as a poor convict under Rev. St. § 1042, cannot be based thereon. | 1335 |
| PARTIES. | |
| Ten out of thirteen owners, having a majority of the shares in a ship, may bring a suit in the name of all the owners; but the suit will be stayed until the other owners are indemnified for costs | 738 |
| The collector is not a proper party to a suit between rival claimants to the ownership of imported goods in his custody in a bonded warehouse, where it is not alleged that ho is acting wrongfully or without authority of law | 305 |
| Purchasers pendente lite are bound by the decree, though not brought in as parties to the bill. | 32 |
| The nonjoinder of proper respondents in an action in personam in admiralty can be taken advantage of only by plea in abatement | 440 |
| PARTNERSHIP. | |
| The partnership articles will be considered as binding after the expiration of the stipulated term where the business is carried on without any change in the circumstances | 946 |
| Under articles of copartnership stipulating that in case of the death of a partner, in order to prevent altercation with the heirs, etc., the shares of the profits and capital of the deceased shall be paid by the survivors, agreeably to the yearly statements of the company's affairs prior to his death, the entire interest in the partnership property passes to the survivor | 946 |
| One partner who pays a judgment against all the partners for a partnership debt cannot at law recover from the others their respective proportions | 788 |
| PATENTS. | |
| Nature of the grant. | |
| A state has no right to interfere with the enjoyment of a patent right, or to annex conditions to the grant. | 961 |
| A state law requiring the filing of a copy of letters patent and a certain affidavit by the owner with the county clerk, as a condition of the right to sell the patent right in the county, is unconstitutional and void | 961 |
| Patentability. | |
| The patentee must in fact be the original and first inventor in the United States | 1097 |
| Where the original inventor fails to take out a patent, and abandons the invention, no other person can entitle himself to a patent, except where the knowledge of the invention had been lost. | 672 |
| Invention is not made until the person contriving or those observing discover how the thing can be made available for a particular purpose | 286 |
| Speculation must be reduced to practice, and not rest in uncertain experiments, to entitle an inventor to a patent | 910 |
| Where a patent is assailed upon the ground of want of novelty, the patentee may show, by sketches and drawings, the date of his inceptive invention; and, where he has exercised reasonable diligence, the protection of the patent will be carried back to that date. | 466 |
| The discovery of a law of nature or a geological truth, as that the seams or rifts in oil-bearing rock would, if opened by a blast, yield oil, is not patentable | 880 |
| A new device, though inferior to prior devices for the same purpose, is useful and patentable if it be not frivolous nor injurious to public morals or to the well-being of society | 1093 |
| A novel process or mode of operation which amounts to a successful application of known things to a practical use is patentable as an art | 880 |
| No machine can be an anticipation which cannot be made to produce, without substantial alteration of its construction, the same results as those of the patented machine | 658 |
| A patent which introduces into an existing machine a new element not used before, which produces a new and useful result, is not anticipated by such prior machine. | 658 |
| A mere change of material, without the exercise of mechanical skill, is not patentable | 92 |
| The application and use of plaster of Paris to the filling of fireproof safes is patentable | 672 |
| An elastic erasive pencil head, consisting simply of a piece of India rubber, with a hole in it to slip over the end of the pencil, is not patentable | 1298 |
| Protecting the treadle and pitman of a sewing machine from dust does not involve sufficient utility to sustain a patent | 1252 |
| There is no invention in placing a box over a sewing machine when not in use, to protect it from dust | 1252 |
| A composition of certain materials in certain proportions for use as a table beverage, called “Birch Beer,” held patentable | 1113 |
| A combination of a cabinet and sewing machine is not patentable where crude combinations of the shipping box and the machine have been made by manufacturers | 1252 |
| A new combination of movable staples at the corners of a traveling bag frame, with a lock in the middle, is patentable as a fastening device, though each had been in use separately theretofore | 1093 |
| A carriage step with a corrugated rubber surface is not anticipated by the use of rubber on shoe soles or stirrups, or corrugated iron for carriage steps. | 1297 |
| Who may obtain a patent. | |
| The patentee must be the first as well as an original inventor. | 435 1383 |
| The first inventor is he who has first perfected and adapted the invention to use 435, | 466 |
| In the case of two independent inventors, he who first reduces his invention to a fixed and positive form is entitled to a priority of right to a patent therefor | 435 |
| The inventor must have used reasonable diligence in perfecting and adapting an invention, to be entitled to priority over the patent of an independent though subsequent inventor. | 466 |
| He who invents first is entitled to the prior right if he is using reasonable diligence in adapting and perfecting the same, although the second inventor has in fact first perfected the same, and first reduced it to practice in a positive form | 435 |
| The person who embodies the principle, so as to make it available for practical use, is the one entitled to a patent. | 286 |
| Where the inventor of a machine and the inventor of an improvement agree to mutually use the same, the patent must issue in the name of both: and, where issued in the name of one only, there can be no recovery for infringement | 555 |
| Caveat. | |
| A paper adjudged by a commission appointed by the commissioner of patents to be fraudulent, and to have been surreptitiously introduced into the file of a caveat, held to form no part thereof | 950 |
| Prior public use or sale. | |
| A use or sale which has not exceeded two years before the application for a patent will not invalidate it | 1157 |
| The use and sale by an inventor of a machine embodying the substance of his invention more than two years before filing his application bars his right to a patent. | 1312 |
| Prior description or foreign patent. | |
| To anticipate an invention by a prior publication, there must be a description of the alleged invention contained in a work of a public character, and intended for the public, which is made accessible to the public by publication before the discovery of the invention by the patentee. | 466 |
| The fact of publication of a manufacturer's catalogue must be proved by evidence independent of the imprint. | 466 |
| A patent is rendered invalid by a prior published description only where that description was sufficient to give to the public a practical knowledge of the invention claimed. | 880 |
| An illustration by drawing, unaccompanied with verbal description, is not such a prior description as will defeat a patent | 466 |
| A device known and used in foreign countries, but not patented there, nor described in a printed publication, is patentable in the United States by a person without notice thereof. | 1093 |
| Abandonment: Laches. | |
| A patent will be held invalid where there was unreasonable delay in making application, after another inventor had made public the invention. | 286 |
| An invention may be abandoned after the patent has issued; and an abandonment may be inferred from the neglect to utilize the same, or to assert claims against others who are using it | 286 |
| A delay of five years after the application is rejected before a renewal is made, where no excuse is given, is an abandonment | 332 |
| An abandonment cannot be predicated upon, a delay caused by the commissioner in refusing a patent, where the application is renewed for the same invention. | 672 |
| Where the applications were not for the same invention, and the invention was in public use for more than two years before the second application, the patent is void | 672 |
| An abandonment or dedication once made cannot be recalled | 286 |
| Appeals from commissioner's decision. | |
| An appeal will not lie from a decision of the commissioner refusing to declare a new interference, and grant a rehearing, after the unsuccessful party has allowed the time for appeal to expire. | 1262 |
| A witness testifying to conversations and declarations describing a device of which the party had already constructed a specimen cannot be allowed to testify that a model shown him corresponds to the description given, and could have been made therefrom | 710 |
| The extent of the examination under oath of the commissioner and examiners in explanation of the principles of a machine or other thing for which a patent is prayed for, under Act March 3, 1839, § 11. | 710 |
| Validity. | |
| A patent may contain a claim for a combination, and the invention or improvement of one or more parts of which the combination consists | 1157 |
| A patent issued to two for a thing which is the sole invention of one is invalid | 286 |
| Where the claims are definitely distinguished, the fact that some of them are void for want of novelty will not prevent a suit for infringement upon the valid claims | 1348 |
| Discovery and actual use prior to the discovery by the patentee, however limited the use or knowledge of the discovery, will in. | 672 |
| Illustrative drawings of conceived ideas, not followed up by a seasonable observance of the requirements of the patent laws, can have no effect upon a subsequently granted patent to another. | 466 |
| Extent of claim. | |
| A claim referring to the specification must be construed in connection therewith | 880 |
| The specification must be considered in construing the claims of the patent | 286 |
| The patentee will be concluded by the statement in his claim, uncontrolled by the specifications where it is clear and explicit, leaving no room for construction | 670 |
| The words “constructed substantially as above described” held to refer to the method of manufacture | 1126 |
| The claim of an arrangement of a combination, when such as to produce a given mechanical result of the combination, is a claim to the result, irrespective of such means | 536 |
| Construction of claim: “The above described method increasing the productiveness of oil wells by causing an explosion of gunpowder, or its equivalent, substantially as above described” | 880 |
| Patents for improvements in gold pens held could not be extended beyond the particular shape, form, or mode of construction claimed | 303 |
| Reissue: Disclaimer. | |
| The presumption of law is always in favor of the validity of the reissue, and the burden of proving that it is for an invention different from the original is upon the party alleging it | 513 |
| The introduction of a comma into the specification of a reissue in a sentence found in the original specifications, and alleged to be an interpolation and to introduce a new idea, held to be accidental and a clerical error. | 950 |
| An unreasonable neglect or delay to enter a disclaimer at the patent office, where the disclaimer has been filed, either before or after suit brought, is a good defense to suit for infringement. | 435 1384 |
| Plaintiff in a suit for infringement is not entitled to costs where he failed to file the disclaimer before suit brought | 435 |
| Duration. | |
| An extension of a prior foreign patent will not keep alive a subsequent domestic patent, but it will expire at the same time with the original term of the foreign patent | 514 |
| Assignment. | |
| The right of property in an invention before application for a patent is subject to sale | 317 |
| A grant of an exclusive right to construct, use, and vend a certain number of patented machines within a certain territory, with exclusive use of the patent within the territory limited to said machines, conveys the entire interest in the patent for such territory. | 843 |
| An assignment of all the assignee's interest in an invention, except territorial rights reserved to another, “to the full end of the term for which said letters patent are or may be granted,” conveys the right to an extension | 1317 |
| Infringement: What constitutes. | |
| It is not necessary that the thing patented should be adopted in every particular to constitute an infringement; a substantial adoption is sufficient. | 1157 |
| A patent of a machine as an aggregate is infringed by a machine which omits immaterial parts, or uses fewer of the original old elements, or substitutes equivalents | 670 |
| A patent for a combination of old devices is not infringed by the use of a part only | 891 |
| Where two machines produce substantially a similar result by substantially similar means, no proof of difference between them lies in the fact that one is less effectual in operation, or more imperfect in its structure, than the other | 891 |
| Where a patented combination turns out to be useless, a person who adds another element, and thereby makes the whole practically useful, is entitled to use the whole combination | 944 |
| The addition of a well-known device will not give defendant the right to use the patented combination where some addition is necessary to fit it for use | 944 |
| A composition of which plaster of Paris is an ingredient, used for the filling of fireproof safes, held not an infringement of a patent for the use of plaster of Paris | 672 |
| The manufacture and sale of a part of a patented invention, designed to be used by the purchasers for the express use to which it is put by the patentee, is an infringement. | 723 |
| The sale by defendant of the constituents of complainant's patent, with the intent and further purpose of enabling the buyer to turn them into the patented compound, is an infringement. | 1342 |
| —Who liable. | |
| A corporation is liable where the infringing machines are procured by it, and are used by persons employed or paid by it. | 286 |
| —Remedy generally. | |
| Patentees everywhere have the same rights and remedies, and a state statute of limitations cannot be pleaded in bar to an action for infringement 357; contra, | 681 |
| —Preliminary injunction. | |
| Where the validity of the patent has been fully sustained in prior cases, the court will not hear evidence except on the question of infringement | 944 |
| Facts showing the invalidity of the patent set up in defendant's uncorroborated affidavit are no ground of denying the writ, where defendant had remained silent in regard thereto in a preliminary suit in which he took an active interest. | 1044 |
| Terms imposed and an affidavit required on granting an injunction to restrain defendant from making and vending the patented machine | 1107 |
| That a person who has infringed by manufacturing the patented article has desisted, and has no intention of again making it, is no ground for not enjoining him | 1355 |
| The fact that only 20 days remain of the life of the patent is no ground for withholding injunctions, where the patent had only just been finally sustained, and had been much litigated. | 1355 |
| —Procedure. | |
| An action for infringement may be maintained by one to whom the entire property in the invention was assigned before the issuing of letters patent | 317 |
| The equitable title of an assignee to a subsequent extended term granted to the patentee is sufficient to enable him to maintain a suit for infringement. | 1317 |
| In an action against two defendants, plaintiff may recover damages against one, although the other be acquitted | 555 |
| In a bill in equity, after alleging the infringement of a valid patent, it is surplusage, and not multifariousness, to aver the infringement of a void reissue thereof | 1093 |
| Defendant cannot plead the general issue with notice of special matter of defense, and also, in a special plea, set up the same matter in bar. | 357 |
| A plea merely that the thing claimed to have been invented was in use and for sale before the application for the patent is demurrable | 1157 |
| The absence of proper notice of the defense of want of novelty in the answer will render evidence thereof inadmissible, though the answer is subsequently amended by setting up such defense in due form. | 879 |
| The absence of notice in the answer of evidence of want of novelty is waived where the testimony of witnesses is received without objection. | 1097 |
| Where defendants admit the infringement, setting forth the number of articles made and sold, and rest their defense on a claim of ownership of the patent, they will not be granted leave to amend to contest the infringement, after a rehearing has been denied and an accounting had | 1319 |
| Priority of invention between two patents, upon both of which the suit is brought, is not material, unless defendant shows that a third person claims to have made the invention between the date of the two patents | 723 |
| The construction of the claims of a patent is for the court, except in the case of technical terms which need explanation by evidence | 286 |
| The question whether plaintiff was the first inventor of the thing for which he obtained a patent is one for the jury | 555 |
| The question whether the patentee has made a full disclosure of his invention in his specifications is one of fact for the jury. | 555 |
| —Evidence. | |
| The patent is prima facie evidence of novelty and utility, and that the patenteewas the first inventor. 92, | 658 |
| The effect of the patent is prima facie evidence of novelty and utility is overcome by proof that it includes matters which the patentee did not invent. | 1136 |
| The testimony of a witness that he made and peddled the patented article six months before the date of plaintiff's application held sufficient to overcome the prima facie evidence of the patent that plaintiff was the first inventor | 803 |
| On the question of the validity of a reissue, the patent-office model, filed with the riginal application, is admissible to aid in determining what was described therein, | 513 1385 |
| —Injunction and its violation. | |
| An injunction will, as a matter of course, follow a decree in favor of complainant on the merits, unless defendant show that it should in equity he withheld until after the account has been taken | 1347 |
| Where the violation was not willful, defendant was directed to pay to plaintiff the profits and damages on account of the violation and the costs of the contempt proceedings | 365 |
| —Decree, and its effect. | |
| The decision of a co-ordinate court on an interlocutory decree will be followed, in the absence of new or additional or contradictory evidence, which impels the court in a second hearing to a different result | 1342 |
| In such case a full decree will be rendered, which will also reveal the distinct ground on which the court refused to look into the question | 1342. |
| A decision by the supreme court on the validity of a patent will be held binding on the circuit court, though the parties are not the same | 718 |
| —Accounting: Damages. | |
| Upon an accounting before a master, the extent of the monopoly and the infringement must first be ascertained to establish the basis of profits or damages | 1316 |
| The damages are to be measured by the profits the patentee could have made on the sale of his invention | 658 |
| A patentee is entitled to such damages as he can show have actually been sustained by the use of his invention without his license and consent | 286 |
| The difficulty of furnishing proof of damages, either by showing profits made by defendants or the value of infringing articles sold, does not authorize any presumption whereby the recovery may be enhanced beyond the damages actually shown by the testimony | 1136 |
| It is no excuse for failure to mark the patented articles “Patented” that such marking would have been so expensive as to make the articles unprofitable | 88 |
| Where the patented articles were not stamped with the word “Patented,” held, that complainant was entitled to profits only from the date of the decree | 88 |
| Various particular inventions and patents. | |
| Barrels. No. 136,763, for improvement in head linings, held invalid for want of novelty | 451 |
| Blowers. Patent to Boots of July 27, 1869, for improvement in a rotary blower case, held valid and infringed. | 1168 |
| Beverages. Nos. 193,038 and 198,467, for improvement, consisting in a compound called “birch beer,” held valid | 1113 |
| Bottles. No. 23,263 (reissued No. 1,606), for “improved bottle-stopper fastener,” held valid, but not infringed 77, | 90 |
| Columns. No. 35,582, for an improvement in the construction of columns, shafts, braces, etc., construed, held valid, and infringed. | 466 |
| Driven wells. No. 49,129 (reissued No. 6,337) and No. 130,871, for improvement in well tubes or drills, held valid and infringed. | 1264 |
| Firearms. No. 16,797 (reissued No. 3,798), for improvement in breech-loading firearms, held valid and infringed 534, | 536 |
| Firearms. No. 22,094 (reissued No. 3,946), for improvement, construed, and held valid and infringed | 928 |
| Fire engines. No. 1,980, for improvement, construed in a charge to the jury | 286 |
| Hand stamps. No. 18,249 (reissued No. 4.675), for improvement, held valid and infringed 943, | 950 |
| Journals. No. 1,252, for improvement in boxes or bearings for journals or axles, construed in a charge to a jury. | 936 |
| Lead pencils. No. 36,854 (reissued No. 3,863), for combination of the lead and an India-rubber eraser in the same sheath, construed, limited; and held not infringed | 389 |
| Oil wells. No. 59,936 (reissued No. 6,258), for improvement in method of increasing capacity, held valid and infringed 880, | 911 |
| Paper. No. 94,843, for an improved paper-pulp engine, held valid and infringed | 1191 |
| Phosphoric acid. No. 14,722 (reissued No. 2,979), for an improvement in preparing phosphoric acid as a substitute for other solid acids, held void as to certain claims, and valid and infringed as to others 1342, | 1348 |
| Plows. Prouty's patent for an improvement construed, and held not infringed. | 11 |
| Printing presses. Priority awarded for a device for stopping the impression without stopping the machine | 1331 |
| Refrigerators. No. 13,803 (reissued No. 455), for improvement, held invalid for want of novelty 879, 912; contra, | 891 |
| Register. No. 76,646, for a conductor's register of fares and tickets, construed, and held not infringed. | 185 |
| Register. Reissue No. 6,929, for improved fare register, held valid and infringed | 185 |
| Register. Reissue No. 7,120, for an improved fare register, construed, and held not infringed | 185 |
| Syringes. No. 28,196, for improvement in enema syringes, held invalid 718, | 720 |
| Torpedo. No. 47,458, for improvement in explosive torpedoes in artesian wells, held valid | 910 |
| Traveling bag. Nos. 56,801 and 83,212, for improvements, held valid and infringed. 1083; contra, | 1097 |
| Water wheels. No. 2,708, for improvement, held valid, but not infringed | 670 |
| Wire staple. Reissue No. 2,183 (original No. 19,747), for improvement in wire staples adapted for use in making window blinds or screens, held valid and infringed. | 1126 |
| PAYMENT. | |
| The taking of a negotiable note for a preexisting debt is treated prima facie as a conditional payment only, and it will not extinguish the debt unless so intended by the party. | 826 |
| An indorsed note taken for an account, where it bears a higher rate of interest, and the account is receipted as paid in full by the note, extinguishes the debt | 826 |
| A bill of exchange remitted to a creditor in payment of a debt will be considered as payment, where the amount of the bill is lost by the negligence of the creditor | 890 |
| The fact that a note was given and received in payment of an account may be shown by circumstances | 801 |
| An agreement for payment of wages in pounds held to mean pounds sterling, and not the currency of the locality, which was greatly depreciated | 142 |
| Where the payment of the principal is accepted, a separate suit will not lie for the interest, though the right thereto was expressly reserved in the receipt given | 804 |
| Penalties. | |
| See “Contracts.” | |
| PILOTS. | |
| The claim to half fees given by a state law for a tender and refusal of services creates no lien on the vessel. | 872 |
| PLEADING AT LAW. | |
| A declaration against two of three obligors is defective which does not aver that all three have failed to pay the debt | 960 1386 |
| An action brought in the name of “Raw-lings & Son” held too uncertain as a description of plaintiffs. | 630 |
| Nil debet is not a good plea to an action brought in the federal court in one state on a judgment obtained in the federal court of another state | 452 |
| A plea of the pendency of a former suit in another court must offer to produce the record of such suit | 758 |
| The record of a former judgment between the same parties upon the same cause of action may be given in evidence under a plea of nonassumpsit | 766 |
| The declaration alleged an authority to draw, but not in writing, for 100,000 francs. The proof was a letter authorizing blank francs to be drawn for. Held, that this was no variance | 148 |
| PLEADING IN ADMIRALTY. | |
| Matter of abatement may be set up in the answer, but the answer in such case must demand the same judgment as a plea | 440 |
| Exceptions to a pleading in admiralty have the effect of a demurrer, and also that of a motion to make the pleading more definite and certain | 143 |
| Where no exceptions are taken to an answer which is not as full and explicit and distinct as required by rule 27. the reading of testimony cannot be objected to on the ground of its insufficiency | 1067 |
| Evidence outside the allegations made by either parry cannot be regarded in support of his charge or defense | 646 |
| PLEADING IN EQUITY. | |
| A bill in equity filed without being signed by the plaintiff or his counsel will be stricken from the files | 850 |
| The writings mentioned in a bill, or copies of them, need not be filed as exhibits with the bill | 79 |
| Where more than one point of defense is relied on, such points should be stated by way of answer, and not of plea | 512 |
| An answer by a defendant beyond sea will be taken and sworn to by a commission under a dedimus issued by the court. | 353 |
| An answer to a cross bill filed by a person not named in the bill nor admitted as a defendant will be stricken from the files. | 79 |
| Where respondent has no personal knowledge of matter alleged in the bill, a denial upon information and belief is sufficient to put complainant to his proof. | 1027 |
| In an action against persons to enforce a conveyance of certain trust estates and for an account, defendants must answer all interrogatories in relation to the title to the estate and their dealings therewith | 1238 |
| The answer is not evidence in defendant's favor unless it be an answer to a fact averred in the bill, and not an answer to a mere inference of law | 985 |
| The answer is not evidence to support new facts set up by way of discharge or avoidance, or defense, not responsive, to the bill 235, | 996 |
| The separate answer of one defendant is not evidence for another | 985 |
| A cross bill cannot introduce new parties or new and distinct matters, or differ in purpose from the original bill | 262 |
| The decree cannot be founded on proof of matters not alleged. | 996 |
| Where a replication is put in to a plea, the parties proceed to the examination of witnesses in the same way as in case of a replication to an answer | 513 |
| An amendment will not be allowed by introducing a new party to the bill whose interest was known to the original plaintiffs or their agent when the bill was filed. (Equity Rule 29.). | 1237 |
| Equity will allow a bill of foreclosure, brought on an executed contract on the hypothesis that it was valid as a mortgage, to be converted, by amendment, into a bill for specific performance. | 228 |
| The court may allow a replication to be filed nune pro tune, where reasonable excuse for delay is given, and defendant is not prejudiced. | 1045 |
| The pendency of negotiations for a settlement after the filing of the answer is a sufficient excuse for delay. | 1045 |
| POST OFFICE. | |
| The sureties on a postmaster's bond are discharged by two years' delay to bring suit after a default in not paying the quarterly balances found due by the auditor. | 1084 |
| PRACTICE AT LAW. | |
| After demurrer to a plea of set-off has been overruled, plaintiff should have leave to reply | 1006 |
| If a cause be non pros'd and not reinstated at the same term, it cannot be reinstated at a subsequent term, but is discontinued | 776 |
| The condition of payment of costs on vacating a judgment held to have been waived, where no demand for payment was made, and proceedings were taken as if the judgment was vacated | 284 |
| A writ of inquiry cannot be executed at the same term at which judgment is rendered | 960 |
| PRACTICE IN ADMIRALTY. | |
| Courts of admiralty, in their practice and modes of proceedings, are even more free from technical rules than courts of equity | 738 |
| The omission of the summons to the master of the vessel to show cause, etc., is an error of practice which may be waived by claimant by delay in taking advantage of it. | 1027 |
| The defect of beginning a former proceeding in admiralty by warrant of arrest against the vessel, instead of summons, is waived by the concurrence of the other party in new proceedings on the same cause of action. | 439 |
| Where, in a suit in personam, a respondent cannot be arrested, a foreign attachment may issue against his property in the hands of a third person to compel his appearance | 440 |
| The suit is one in rem, where property in the hands of a third person is arrested on a claim to a specific lien upon it | 440 |
| Property purchased bona fide by the holder of it is not subject to a foreign attachment | 440 |
| Where property had been acquired by agents with full notice of libelant's claim, and on its arrest they intervened by stipulation and answer, held, that the suit might be treated as one in personam against them | 440 |
| The court may permit a stipulation to be given to satisfy the decree, reserving to the stipulator the right to deny the legality of the custody claimed by the marshal, and, if successful in such denial, to ask to be relieved therefrom | 1219 |
| A stipulation directed to be taken in double the amount of the demand will not be construed as a stipulation simply for costs | 1219 1387 |
| By the discharge on bond of a vessel seized, she becomes free, and all anterior liens stand good against her, as before her seizure | 894 |
| Where petitioner, without order of the court, has obtained possession of property from the marshal, who had seized the same on process in rem, the court will not order the marshal to deliver up possession | 1217 |
| The legality or propriety of an order of reference cannot be impeached upon exception to the report | 636 |
| The surplus proceeds on the sale of a vessel in the registry of the court are subject to all claims against the vessel. | 529 |
| In marshaling the proceeds of a vessel for distribution, a mortgage debt will be entitled, after satisfaction of privileged and lien debts, to payment, as against the owner | 529 |
| PRACTICE IN EQUITY. | |
| An order dismissing complainant's bill for want of a replication is of course, and may be entered in the clerk's office without any application to or action by the judge | 1046 |
| A motion to set aside such dismissal, made nearly five years after the entry of the order of dismissal, without offering any excuse for the delay, will be denied. | 1046 |
| Notice of a motion to dissolve an injunction, given on the first day of the term, is notice of a motion to be made at the next term. | 213 |
| Leave to file a supplemental answer setting up a judgment in bar was granted after the same had become final by affirmance on appeal, on renewal of a former motion to set up the same judgment by way of amended answer which had been denied because of the pendency of an appeal therefrom | 1046 |
| Where more than one point of defense is stated by way of plea, the court will allow defendant either to set down the pleas as an answer, or will put him to his election as to which of the pleas he will abide by | 512 |
| In the case of an answer directed to be taken and sworn to in China, on objection to an answer previously filed, only one set of exceptions was allowed | 353 |
| Plaintiff is not entitled to the production of a book which his bill does not in any way call for or show to be material. | 856 |
| Plaintiff may require the production, for his inspection and use in the suit, of documents in defendant's possession referred to in the answer; without being set forth in full, and material to his case | 856 |
| But plaintiff is not entitled to the production of papers to which no allusion is made in the answer, though referred to in the bill. Plaintiffs remedy is to except to the answer | 856 |
| Where the answer sets forth extracts from defendant's books, with the averment that they embrace everything in the books that relates to the subject-matter of the suit, plaintiff cannot, on a suggestion that such extracts are garbled or liable to suspicion, entitle himself to a general inspection of the books of defendant relating to other matters | 856 |
| Plaintiff is entitled to the production for inspection of the books referred to, but defendant may seal up the parts not relating to the subject-matter of the suit, and the inspection must take place under the supervision of an officer of the court | 856 |
| The court has power to modify or vacate a final decree until after the expiration of the term at which it was entered | 472 |
| Previous to entering the final decree the cause remains under the control of the court; any interlocutory decree is subject to examination and modification 38, | 472 |
| A decree in a patent case, making the injunction prayed for perpetual, with a reference to a master for an account of profits, is not a final decree | 472 |
| The proper practice to obtain a rehearing before final decree is by petition to the court for leave to file a supplemental bill setting forth the newly-discovered evidence. | 472 |
| The petitioners must show due diligence to discover and obtain the new evidence at the original hearing, and that it is material to the issue. | 472 |
| A bill of review will lie for errors in law or on the ground of newly-discovered evidence. On the former ground, the bill is filed without leave; but on the latter ground, leave must be obtained | 1242 |
| Principal and Agent. | |
| See “Factors and Brokers”; “Master and Servant.” | |
| PRINCIPAL AND SURETY. | |
| See, also, “Bail.” | |
| Where the principal is insolvent, the sureties, in respect to their liability, are regarded in equity as creditors, and may retain any funds of the principal in their hands, even against an assignee for value, without notice. | 615 |
| In the case of a mortgage given to secure the payment of five notes, two for the principal of the debt, one for the interest, and two as compensation to the mortgagee for indorsing the first three, held, that the holder of the first three notes was entitled to have the proceeds of the mortgaged property first applied to the payment of such notes | 20 |
| To debt on the bond of a paymaster in the navy, a plea of laches on the part of the government in its dealings with the paymaster, and that defendant had revoked the bond, is bad | 337 |
| The limitation of suits for penalties or forfeitures provided by Rev. St. § 1047, does not apply to the penal sum named in a bond. | 337 |
| PRIZE. | |
| Jurisdiction. | |
| The court may entertain and perfect its jurisdiction over property captured on board a vessel, without having the vessel itself brought within its cognizance | 2 |
| A foreign prize court which has once acquired jurisdiction over the corpus does not lose it because the same is taken into another jurisdiction by a purchase from the captors. (Reversing 1184.) | 1179 |
| A foreign decree of condemnation as prize held not examinable in our courts, although on its face appearing to have been founded upon an ordinance passed subsequent to the commission of the act for which the vessel and cargo were condemned. (Reversing 1187.) | 1171 |
| Grounds of condemnation. | |
| Only those who are ignorant of the blockade under the proclamation of April 19, 1861, are entitled to the warning and indorsement mentioned therein. | 574 |
| A vessel seized as prize and released on bonds is subject to capture and condemnation for a subsequent violation of the blockade on the same voyage | 827 |
| Thirteen years' residence in the enemy's country of a citizen of another countrys held to subject him to the disabilities of an enemy | 1107 1388 |
| A citizen of the United States, after he has full knowledge of the war, has not a right, without the permission of the government, to withdraw his property, acquired before the war, from the enemy's country | 297 |
| If a vessel be sent from the United States, after knowledge of war, to the enemy's country, to withdraw such property, the vessel and the cargo are confiscated jure belli. | 297 |
| The property of citizens taken trading with the enemy is considered as quasi enemy's property | 297 |
| During war, all trade with the enemy, unless by permission of the sovereign, is interdicted, and subjects the property engaged therein to confiscation. | 297 |
| Neither a consul nor the commander of an American vessel of war has authority, by virtue of his official station, to grant any license or permit which could have the legal effect of exempting the vessel of an enemy from capture and confiscation. | 1107 |
| Procedure. | |
| Prize proceedings should be taken in the name of the government and not in the names of the individual captors, unless the government gives express authority to the captors to sue in their own names | 2 |
| Where the proceeds of prizes have been brought into court, the parties entitled to distributive shares therein may file their libel in their individual names. | 2 |
| The libel need not specifically set forth the grounds on which condemnation is sought. | 574 |
| On a monition to proceed to adjudication, the onus probandi rests on the claimant. | 1277 |
| The rule requiring evidence obtained directly from documents or witnesses found on board of a vessel at the time of her seizure is not imperative. | 2 |
| Papers in a prize court of another country are inadmissible to show that there was no cause for capture, unless the whole papers are produced. | 1277 |
| Persistent misrepresentation by the claimant of the character and destination of the voyage of the captured vessel is sufficient cause for condemnation of vessel and cargo | 574 |
| Vessel and cargo condemned on false and simulated papers as to destination, and for an attempt to violate the blockade. 573, | 869 |
| Vessel and cargo condemned as enemy property. | 508 |
| Vessel and cargo condemned for a violation of the blockade | 210 |
| Vessel and cargo condemned as enemy property and for a violation of the blockade | 509 |
| Cargo condemned for breach of blockade and for being contraband of war. | 689 |
| Rights and liabilities of captors. | |
| Captors are entitled to property captured in a trade from an enemy's port, though it was previously forfeited to the United States by a breach of the nonimportation act of 1809 | 297 |
| The purchasers from captors acquire an inchoate right to the property, which is made perfect by its subsequent condemnation | 1179 |
| An armed vessel in sight will be allowed a share of the prize in proportion to her men and guns only when she was in a possible condition to join in the battle | 668 |
| Vessels five miles distant held not entitled to a share in the prize, as within signal distance | 521 |
| The captors are exonerated from all losses and damages sustained by reason of the capture, where there was probable cause therefor | 1277 |
| PUBLIC LANDS. | |
| Lands included within the limits of an incorporated town are not subject to entry under the pre-emption law of September 4, 1841 | 1160 |
| The extent of land which may be included within a city is not limited by Act May 23, 1844 | 1160 |
| The provision in such act excepting lands pre-empted by the corporate authorities from the operation of the pre-emption act was intended to secure to the government the enhanced value of lands in and adjoining a town | 1160 |
| A person who never has asserted any pre-emption rights to land, but has asserted other rights in contradiction thereof, cannot be deemed to have intended to claim such rights | 1160 |
| Persons will not be protected as bona fide purchasers (1) who purchased before the patent of the government issued; (2) when the defect in the title arises out of a rule of law, of which they are bound to take notice; (3) where the title acquired is absolutely void | 1160 |
| A party who is not himself injured thereby cannot defeat the title of the purchaser at a sale by auction of public land, by showing a combination to prevent competition in bidding | 1160 |
| Inaccuracies will not vitiate surveys made of wild lands infested with hostile Indians and at great hazard. | 1135 |
| Under the laws of Virginia, the certificate of registry of a patent, which is required to be given, is not necessary to the title to lands under it. | 842 |
| RAILROAD COMPANIES. | |
| On the consolidation of two companies, a stockholder in one of the old companies becomes a stockholder in the new, and he cannot bring a bill upon the theory that he is a stockholder in the old company | 772 |
| Noncompliance with an agreement as to the use of the proceeds of municipal aid bonds will not affect the rights of a holder, where the bonds were regularly executed | 1077 |
| The fact that the bonds were given in exchange for a single bond first issued in payment of the whole subscription is not a valid objection thereto. | 1077 |
| An illegal subscription to stock may be ratified under a subsequent statute authorizing the ratification | 79 |
| A bill alleging such subscription should aver the ratification, but an omission is cured by the answer putting the question of ratification in issue | 79 |
| Under a general power to mortgage, the railroad company may mortgage any part | 32 |
| Authority to a railroad company to mortgage its “road, income, and other property,” does not authorize a mortgage of its franchises. | 32 |
| A mortgage of “all the present and future to be acquired property of the company, including the right of way and land occupied, and all rails and other materials used therein or procured therefor,” includes the rolling stock | 32 |
| A mortgage of a branch line, under a special act providing that it shall be a first lien thereon, takes precedence of a prior mortgage of the railroad, as then “made or to be made.”. | 264 |
| Under a mortgage providing that the future earnings and profits shall be held in equity by the mortgagee, the mortgagor, receiving such earnings, etc., will be deemed to hold the same in trust. | 38 1389 |
| In the case of a mortgage on a railroad running through several states, a federal court of one state may decree foreclosure and direct a sale of the entire road. | 264 |
| Where trustees under a mortgage, of whom it is alleged in the bill for a foreclosure that they had refused to realize on the security, apply to come in, and have been admitted as complainants in the bill, they must control the proceedings. | 692 |
| Where a subsequent mortgagee is made a party to a foreclosure suit, the bill will be dismissed as to him, where it appears that his being made a party hinders and delays the suit | 692 |
| Where the security is inadequate, a receiver will be appointed | 1327 |
| A receiver will be appointed where the tolls and income pledged as security are being applied to other uses | 1327 |
| Eight per cent, held too low rent for the use of rolling stock, where the owner bears all the loss and deterioration. | 38 |
| REAL PROPERTY. | |
| See, also, “Adverse Possession”; “Boundaries”, “Deed”; “Ejectment”; “Estates”; “Grant”; “Public Lands.” | |
| One who purchased from a person acting under an informal power, who sold the lands in his own name, having no claim to them, cannot claim compensation for his improvements under the occupying claimant law | 620 |
| RECEIVERS. | |
| See, also, “Mortgages”; “Railroad Companies.” | |
| The appointment of a receiver of an insolvent company cannot be dictated by the secured creditors | 692 |
| REFERENCE. | |
| An order of reference may be entered nunc pro tunc, where a trial is duly had before a referee under a stipulation, and the parties have omitted to enter the order. | 1036 |
| A reference by consent of an action at law in the federal circuit court is lawful, and after a trial before the referee the court may grant a new trial. | 1036 |
| REMOVAL OF CAUSES. | |
| Right of removal. | |
| Where it appears that the amount demanded, with interest thereon, exceeds the sum of $500, exclusive of costs, the case is a proper one for removal | 900 |
| The right of removal depends upon the facts as they exist when the suit is commenced. | 900 |
| The citizenship requisite for a removal under Act 1875 must have existed at the time of the commencement of the suit in the state court. | 320 |
| An agreement of a foreign insurance company, filed with a state officer, waiving the right to remove causes against it to the federal courts, is absolutely void. | 1293 |
| Proceedings to obtain. | |
| An affidavit stating that defendant has a defense arising under the constitution and laws of the United States, in the words of the act, is sufficient | 397 |
| The addition of an averment specifying a defense which will not give jurisdiction will be rejected as surplusage | 397 |
| Effect of removal: Subsequent proceedings. | |
| The jurisdiction of the federal court, once attached, cannot he divested by a reduction by the declaration filed in such court of the amount of the claim below the jurisdictional amount | 900 |
| REPLEVIN. | |
| Several counts cannot be joined in the cognizance | 1254 |
| In an action upon a replevin bond, defendant may show, in mitigation of damages, title to the property in plaintiff in replevin, and such evidence may be rebutted by showing that the deed under which title was claimed was fraudulent and void | 813 |
| A judgment for defendant in replevin, without a declaration, is irregular, and will, on motion, be set aside, even at a subsequent term | 815 |
| A judgment for the return of the goods replevied, and for the rent in arrear for which they were distrained, corrected on motion by striking out the portion calling for a return of the goods | 489 |
| SALE. | |
| See, also, “Frauds, Statute of”; “Specific Performance”; “Vendor and Purchaser.” | |
| Conditional sales of personal property are valid in Missouri, and need not be recorded | 1134 |
| To constitute a bona fide purchaser for value, he must have been without notice, and have paid a consideration at the time of the transfer, either in money or in other property, or by a surrender of existing debts or securities | 835 |
| A person who purchases property with notice of the wrongful possession of his vendor holds it subject to all remedies that could be enforced against it in the hands of such vendor | 305 |
| The place of delivery of wheat purchased by a commission merchant for his principal will be presumed to be the place where the commission merchant does business. | 665 |
| A representation made in the course of a negotiation does not amount to a warranty, where not contained in the contract, as afterwards reduced to writing | 240 |
| Letters written before the making of the contract, and not referred to therein, are inadmissible to prove a warranty, where the contract is complete in itself | 240 |
| SALVAGE. | |
| Jurisdiction. | |
| A salvage suit will not he stayed pending an action of replevin for the salved property in a court of law, in which the validity of the salvor's lien may be determined. | 171 |
| Right to salvage compensation. | |
| Salvage services are not limited to a vessel or cargo, but extend to any valuable property in peril, saved on navigable waters | 171 |
| Rescuing a raft of timber found adrift in a harbor, and floating out to sea unaccompanied by any person, is a salvage service | 173 |
| The clothing of the master and crew, left aboard on abandonment of the vessel, will be restored free of charge. | 828 |
| The officers and crew of a foreign vessel of war are entitled to salvage, the same as in the case of other vessels | 1060 |
| Seamen, after a wreck, may recover from the materials and cargo, in relation to their respective values, wages for the time spent in saving them. | 902 |
| Seamen who contract for a share of the freight, or of the proceeds of the voyage, cannot, in case of wreck, claim compensation for salvage services, or more than day wages for the time actually employed in saving the wreck | 440 1390 |
| The pilot tug at the mouth of the Columbia river (Act Or. Oct. 28, 1868) is entitled to salvage compensation for towing a vessel on her pilot ground only where she incurs extraordinary risk to tow the vessel, or to rescue it from impending peril. | 1100 |
| A tug which takes the master and crew off of a ship aground, and carries them to port, is not entitled to salvage where the vessel is subsequently saved by other tugs | 70 |
| Persons who interfere unnecessarily with wrecked property, which is being saved under a contract between the owners thereof and a third party, cannot claim as salvors, although they bring the property into port | 120 |
| Forfeiture or reduction of salvage. | |
| A licensed wrecker, who proceeds in opposition to the master's protest, is liable, in an extraordinary degree, to forfeiture of all compensation for anything short of final success | 921 |
| The master of a wrecking vessel, by countenancing a wrongful injury to a wrecked vessel by one of his crew, and by falsely denying knowledge thereof, forfeits all right to salvage. | 921 |
| Embezzlement by a salvor works a forfeiture of his claim of salvage, but does not prejudice his cosalvors, or the innocent owners of the salvor ship | 828 |
| All salvors present when one of their number is guilty of willful wrong to the property are liable to forfeiture of their compensation, if the wrongdoer cannot be discovered | 921 |
| A salvor, by his failure to bring in and report salved property, though it be of little value, and abandoned as worthless, forfeits all right to salvage, as against other property saved by him | 921 |
| Salvors, by wrongfully burning a wrecked vessel, forfeit salvage on the cargo saved by them | 921 |
| When the compensation of certain salvors has been forfeited for misconduct, the court has discretion to determine what interest shall be benefited thereby | 921 |
| The forfeited shares of salvors do not accrue to their cosalvors, but go to the owners of the salved property | 828 |
| Amount. | |
| Licensed wreckers are entitled to greater compensation, and are charged with a higher degree of care and skill, than other salvors | 921 |
| Saving a cargo in midwinter by diving in the hold of the vessel, on an exposed reef, far from land, is a salvage service of great merit. | 921 |
| Amount of salvage compensation, and its distribution among the salvors, in case of timber found adrift, and rescued | 173 |
| The rule to allow a moiety in a case of derelict is a flexible rule, yielding to circumstances 828, | 1281 |
| In the case of a derelict vessel navigated into port after three days of great exertion and imminent danger, a decree of the district court allowing the salvors one-seventh of the net value, of $21,000, was reversed, and a decree awarded for a moiety | 1281 |
| One-half allowed on cargo amounting to 87.500 saved from vessel wrecked on Pelican shoals | 876 |
| $4,000 awarded a vessel worth, with cargo, $275,000, for towing into New York Harbor disabled steamer, out of the track of commerce, worth, with cargo, $70,000, where one day's time was lost. | 384 |
| $30,000 allowed two tugs for towing from the False Hook, into New York Harbor, a vessel worth, with cargo and freight. $230,000, where the services lasted about 20 hours. | 70 |
| $20,540 awarded on a net value of $130,000 in the case of a vessel aground five miles west of Sombero light. | 1076 |
| Remedies for recovery. | |
| The master and owners of the salvor vessel have general charge of a claim for salvage, and, where they present a bill for salvage service, it will be construed as covering the service of the crew, and they cannot maintain a libel for salvage against the vessel and cargo | 1103 |
| Apportionment. | |
| Each separate article of the cargo saved should bear its own expense of saving, landing, and storing. | 902 |
| The master and owners of a licensed pilot tug, who receive compensation for salvage services, are accountable to the crew for their shares | 1100 |
| They are estopped to deny that the service was a salvage one where they receipt for the amount paid as extra compensation for extraordinarv services and risk | 1100 |
| On an award of $30.000 the masters of two tugs were each allowed $3,000. | 70 |
| Right to property or proceeds. | |
| The owners of the cargo were allowed interest on the proceeds after deducting salvage from the date of a wrongful sale by the master to the claimants. | 736 |
| SEAL. | |
| A seal impressed on paper is equivalent to sealing with wax | 905 |
| SEAMEN. | |
| See, also, “Admiralty”; “Maritime Liens”; “Salvage.” | |
| Protection and relief. | |
| The laws of the United States follow seamen engaged on its vessels until the voyage is completed, whether in a foreign country or here | 932 |
| The contract of shipment. | |
| Agreements for a share of the profits as wages do not make the seamen partners | 440 |
| An agreement by seamen not to claim wages unless the ship returns home and delivers her cargo is void. | 522 |
| The contract expressed in a shipping paper signed at the commencement of a fishing voyage cannot be varied by a parol agreement or understanding which is in violation of an act of congress | 668 |
| Where the contract was fully explained to the seamen before they signed it, they cannot vary the voyage by parol evidence | 144 |
| Seamen can avoid a clause in the articles which was not clearly explained to them, and which undertakes to forfeit all their wages and property for an absence of 48 hours from the vessel without the express permission of the master | 144 |
| Shipping articles for a voyage from Liverpool to ports in the Indian, Pacific, and Atlantic Oceans and back to a final port of discharge in the United Kingdom, where the vessel has sailed from St. Helena to New York, are violated by accepting a cargo there for Valparaiso | 624 |
| The transfer of a crew of a foreign vessel dismantled here to another vessel, under the authority of the consul, held to give no right to the seamen to libel the vessel for wages | 958 |
| The wages of seamen shipped at Valparaiso, on board a Chilian vessel, for a voyage to Boston and return, should be reckoned in money of the United States, where the contract was for so many dollars, payable here | 144 1391 |
| In the case of wages payable in dollars and cents, held that the seamen were entitled to a sum in United States currency that would make the payment equal to specie | 1064 |
| Seamen on a vessel lying at anchor off shore, in a place of danger, in case of a change of weather, may be required to help unload on Sunday. | 689 |
| Seamen who refuse to work on Sunday because not allowed double pay, under a custom of the port near which they were at anchor, may be discharged | 689 |
| A seaman dismissed by the master before the termination of the voyage, without just cause, is entitled to damages, which are recoverable in admiralty, in a suit for wages | 1272 |
| Full wages, in such case, are usually, though not invariably, given to the termination of the voyage | 1272 |
| The voyage will be held to be broken up by the confiscation of the vessel, though she is afterwards restored on condition of making a special voyage | 217 |
| A mate who had supplies on board, which were used for the necessary support of himself and crew, was allowed to recover the amount used by himself as enhanced wages, and the balance out of the surplus in court | 1090 |
| A seaman is entitled to be cured, at the expense of the ship, of sickness, hurts, wounds, etc., incurred in the service of the ship. | 813 |
| The phrase, “service of the ship,” is not confined to acts done for the benefit of the ship, or in the actual performance of the seaman's duty | 813 |
| Seamen on a whaling voyage, who are to be paid by a share of the proceeds, are not deemed partners, and the expense of the cure of a sick seaman is not to be deducted from the proceeds | 427 |
| A seaman whose feet are frozen while in the ship's boat, in the service of the ship, before he is discharged therefrom on the return voyage, at the home port, is entitled to be cured at the ship's expense | 426 |
| A seaman who disregards the advice of his physician, and uses a wounded foot, cannot recover of the shin for its subsequent care and cure, and damages for loss of time and general debility caused there by | 716 |
| A cabin boy injured in the service of the vessel, so that amputation of both legs was necessary, was allowed $3 a week until the healing of his wounds, with costs and counsel fees | 1010 |
| The seaman is entitled to be cured, at the expense of the ship, of any injury received by him in executing an improper order, or inflicted upon him by the wrongful violence of an officer in the exercise of his authority, as officer, to punish him | 813 |
| Conduct of master or mate in respect to seamen. | |
| The master may inflict moderate chastisement on seamen | 666 |
| Where, after the voyage is ended, the master again takes an offending seaman on board, he cannot justify an assault and imprisonment without any new offense. | 880 |
| The master may use a deadly weapon, when necessary in order to suppress a mutiny | 889 |
| The vessel owner is not liable where the seaman is wrongfully arrested and imprisoned on a charge of crime in a foreign port, where the master was not a party thereto | 725 |
| In the absence of negligence, the vessel owner is not liable for the loss of the clothing and effects of a seaman, left aboard, where he is arrested and imprisoned in a foreign port without the instigation of the master | 725 |
| Wages Right to. | |
| The son of a partner in an adventure of discovery, who went out on the voyage as a passenger, but did full duty as a seaman on the return voyage, held not entitled to wages, though his name appeared on the shipping articles | 876 |
| Where compensation for a fishing voyage is made by a share of the proceeds, the seamen are entitled to shares only on so much cargo as is brought safely to home port. | 440 |
| The seamen are not entitled to recover wages, as such, on the cargo brought to the port of destination by salvors | 440 |
| But the seaman's interest in such cargo, as quasi owner, may be equitably secured to him, subject to the proper charges for salvage and transportation | 440 |
| Seamen are entitled to wages, in the case of shipwreck, where the cargo is saved and freight is earned. | 522 |
| Freight will be considered to have been earned on a portion of a cargo belonging to the owner of the vessel, landed without interference, and its subsequent confiscation will not affect the right to wages | 217 |
| The fact that the cargo belongs to the owner of the vessel does not destroy the connection between freight and wages. | 217 |
| Seamen discharged for slight misconduct, and a declaration that they would not continue the voyage, can recover no damages beyond their wages for the time of their actual service | 1309 |
| Wages are recoverable where seamen are compelled to leave the ship by cruelty and oppression 522, | 666 |
| Foreign seamen, who abandon their vessel in a United States port upon a strict construction of their contract, can recover only the value of their demands in the currency of the United States, without regard to its depreciation | 624 |
| Seamen are not entitled to the two-months extra wages as having been discharged abroad, where they are actually returned to the port of shipment, and their wages and expenses paid in full to the date of their return. | 1116 |
| ——Remedies for recovery. | |
| A complaint by a seaman under Rev. St. §§ 4546, 4547, must show that 10 days have elapsed after the wages were payable, or that a dispute has arisen between the master arid seamen touching the same | 1076 |
| The vessel against which process is sought on such complaint must be within the district at the time of hearing | 1076 |
| The master, in such case, has a right to appear by attorney before the magistrate in defense of the claim | 1056 |
| Receipts or releases given by seamen, even with all the solemnitv of sealeu instruments, will have no effect, beyond the actual consideration fairly paid | 193 |
| Releases in full, given on the acceptance of reduced pay, where the seamen claimed that they were ignorant of the clause inserted in the contract reducing their wages, held not binding. | 818 |
| ——Deductions: Extinguishment, etc. | |
| Seamen must not interfere when the officers attempt to confine or punish one of the crew for disorderly conduct | 522 |
| Mutinous and rebellious conduct, if persisted in, forfeits all right to wages. | 522 |
| A desertion during the voyage, by the general maritime law, works a forfeiture of all wages antecedently earned | 1272 |
| But, to constitute such desertion, there must be an intention to abandon the vessel and not return. A mere leaving of the vessel without permission is not a desertion | 1272 1392 |
| Absence from the ship without leave, for two hours, is not desertion or misconduct meriting a forfeiting of wages. | 1309 |
| Under the acts of congress, an absence of 48 hours is made conclusive evidence of desertion; but, to prove such absence, a proper entry in the log book is indispensable, though not conclusive evidence. | 1272 |
| Such entry in the log book must be made on the day the absence takes place, and must state the name of the seaman, and that he was absent without leave | 1272 |
| A general entry that the crew, or all the crew, were absent, is not sufficient | 1272 |
| Seamen guilty of misconduct, who subsequently repent and tender amends, will save a forfeiture of wages, in whole or in part | 522 |
| SET-OFF AND COUNTER-CLAIM. | |
| There can be no set-off against avowry for rent | 849 |
| SHIPPINGS | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Bespondentia”; “Carriers”; “Charter Parties, “Collision”; “Demurrage”; “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage”; “Wharves.” | |
| Public regulation. | |
| A vessel licensed for the coasting trade, engaged in smuggling foreign goods, is forfeited under Act Feb. 18, 1793, c. 8, § 32. | 554 |
| The United States has no lien upon or interest in a vessel for violation of Act 1838, § 2, and Act 1852, § 1, until a seizure, and proceedings to recover the penalty | 271 |
| Title to vessel. | |
| Under a contract to build and deliver a vessel after a successful trial trip at sea, though the work is approved, and payments made as it progresses, the title does not pass until the final completion and delivery | 568 |
| A vessel, building under a contract with the United States to build and deliver her after a successful trial trip at sea, is subject to process to enforce a lien for materials furnished while in the hands of the contractor, though the United States kept a superintendent at the vessel, with power to reject or approve materials used in her construction | 568 |
| Under the condition that the United States might complete the work, at the expense of the contractor, upon his failure to perform, held, that the government would take possession merely as the agent of the contractor, to finish the vessel for and on his account. | 568 |
| The assignment by the builders of a vessel of the moneys to become due on the building contract invests the assignee with no such proprietary interest as will enable him to appear as claimant and defend | 560 |
| The purchase by the government of a vessel for the revenue service does not divest the same of valid liens existing at the time the title was acquired, and they may be enforced by the ordinary methods | 560 |
| A sale under the authority of the consul is conclusively presumed fraudulent, where the purchase money was secured by his note, and the title transferred to trustees for the benefit of his wife | 804 |
| An arrangement between the mortgagor and mortgagee that the former is to remain in possession of the vessel until the latter has a reasonable opportunity to enforce the mortgage will net affect the rights of bona fide purchasers for valuable consideration | 1144 |
| The mortgagee will not be allowed to set up any priority over a purchaser without notice at a sale of the vessel at public auction for a valuable consideration, who bought after inspecting her papers | 1144 |
| The owners of a vessel are tenants in common, each having a distinct, though an undivided, interest. | 557 |
| The majority owners have a right to govern and control the employment of the vessel, and give directions as to her repairs and supplies | 557 |
| The implied authority of a part owner, acting as master, to do everything necessary for the employment of the vessel and her equipment, ceases when it is revoked, or anything is done to rebut the presumption. | 557 |
| A part owner, acting as master, has no right, as between the other part owners and himself, to subject their interests to expense, when forbidden to do so. | 557 |
| The master. | |
| By the civil law, and by the common law, the owners are responsible for all the obligations of the master, to their full amount, whether arising ex contractu or ex delicto. But by the general maritime law of Europe the owners are not responsible for his obligations ex delicto, beyond the value of the vessel and freight, and by abandoning them they are discharged | 373 |
| The master may bind the vessel owner for moneys borrowed for necessary purposes in a foreign port, or, where the credit of the owner is not available, he may hypothecate the vessel. | 1231 |
| Where necessary funds cannot be obtained in any other way, the master may sell a part of the cargo. | 1231 |
| The right of the master to sell the vessel, in cases of necessity, is determined by considering whether, under like circumstances, a sale would have been made by a considerate owner for his own interest and that of all concerned | 1002 |
| Owners are liable for the willful and malicious acts of a master, done in the course and scope of his employment | 201 |
| Otherwise of crimes committed by a master, not within the course and scope of his employment | 201 |
| The master will not be held responsible for a deviation, under a charter party requiring it, made by the correspondent of the shipowner | 1013 |
| Query whether procuring insurance on unauthorized voyages, and the receiving and selling the cargo, is a ratification of the master's act, waiving his liability for damages | 1013 |
| A master who changes the voyage contrary to instructions forfeits all wages | 1013 |
| The master must render a full and satisfactory account of receipts and disbursements during the voyage, before being entitled to the payment of his wages | 1013 |
| The wages of the master are not a lien on the vessel, and he cannot sue in rem to recover them. | 557 |
| A master who, with knowledge of a sale to an innocent purchaser, fails to make his claim known, cannot recover for wages theretofore accrued | 731 |
| On a *** by the master for wages after a sale of the vessel, held, that it would be presumed that the wages had been paid out of the freight moneys | 731 |
| Liabilities of vessels or owners. | |
| The shipper has a lien on the vessel for loss or damage to his goods, due to the fault or neglect of the master, or the insufficiency of the vessel, which he may enforce by libel in rem in admiralty | 373 1393 |
| The master, who has stowed goods on deck without the consent of the owner, cannot protect himself for liability for their loss within the exceptions of dangers of the sea | 373 |
| Limiting liability. | |
| On a petition by vessel owners for the benefit of the limitation of liability, the admiralty court has power to enjoin the further prosecution of suits by shippers against owners, pending in state courts, for their losses by the burning of the vessel at her dock. | 16 |
| On petition by owners to limit their liability, a paper called “Exceptions and Answer,” seeking to contest the right to exemption, filed by a party who had not presented claims to the commissioner, held, should be allowed to stand as an exception to the jurisdiction of the court to enjoin his suit in the state court | 20 |
| SLAVERY. | |
| A contract between a master and his slave cannot be enforced, either at law or in equity. | 682 |
| A bona fide possession of a slave, under an absolute bill of sale, without notice of a prior sale to another, held to give a good title after five years | 369 |
| Construction of will on the question of emancipation of slaves. | 105 |
| Proof of the taking of the oath by the owner on importing a slave into Virginia. | 1188 |
| After the lapse of 24 years, it will not be presumed that the oath was taken by the person who brought the petitioner into the state when six years old | 455 |
| An injunction will be granted, without security, against a removal pending a petition for freedom | 383 |
| The removal of a slave out of the jurisdiction of the court after knowledge of the pendency of his petition for freedom is a contempt | 682 |
| Sufficiency of warrant of commitment of a person as a runaway slave | 703 |
| The liability to an action for harboring or secreting fugitive slaves, and the admissibility and sufficiency of evidence, and damages recoverable | 325 |
| SPECIFIC PERFORMANCE. | |
| The court may decree specific execution of a contract to give collateral security | 985 |
| Specific performance will not be decreed of an agreement of a debtor to procure the obligation of a third person and assign it to the creditor in consideration of forbearance | 1260 |
| Specific performance will not be decreed where the contract is uncertain, unfair, or unreasonable, or where adequate compensation can be had at law | 1260 |
| Bonds of the United States are public stocks, and a covenant for their delivery will not be specifically enforced. The same rule is applicable in respect of railway shares | 1245 |
| An executory contract will not be specifically enforced unless the remedy is mutual | 1245 |
| A contract to build a railroad will not be enforced in equity | 1245 |
| The cases in which specific performance of building contracts have been decreed stated by Miller, J | 1245 |
| Unless the court can decree specific performance of the whole of a contract, it will not interfere to enforce any part of it | 1245 |
| The performance of a comparatively inconsiderable part of a contract (e. g. the expenditure of $50.000 in building a railroad which will cost $12,000,000) does not take it out of the class of executory contracts | 1245 |
| A decree will not be refused for an incorrect opinion by plaintiff upon a subject respecting which defendant is as competent a judge as the plaintiff, if honestly made | 996 |
| STATUTES. | |
| See, also, “Constitutional Law.” | |
| It cannot be set up against the validity of an act of congress that it conflicts with an existing treaty with a foreign nation | 1171 |
| The repealing act will be construed as totally abrogating the law repealed, except as to such rights as became perfect under it. | 24 |
| A public law takes effect under the constitution from the very time of its approval, and operates prospectively and not retrospectively | 699 |
| A printed statute may be corrected by the enrolled bill filed in the department of state. | 433 |
| Common or unwritten laws of a foreign country may be proved by parol, but written statutes and edicts must be produced | 1001 |
| TAXATION. | |
| Construction of Act Miss. Nov. 29, 1865, for the assessment and enforcement of levee taxes | 1265 |
| The personal estate of testator is not liable for taxes accruing upon his real estate in Georgetown, D. C, after his death. | 1239 |
| Nature of the remedy by distress for taxes in the District of Columbia | 1239 |
| Validity of sales for taxes in the city of Washington | 1083 |
| The making of lists of lands forfeited for the nonpayment of taxes, and the sale thereof in Ohio, considered | 335 |
| A collector's deed for lands sold for taxes in Arkansas is prima facie evidence of the regularity and legality of the sale, where not contradicted by something on its face. | 905 |
| To support a title under a tax sale a strict compliance with the statute is requisite, and where the reputed owner is proceeded against as though he were occupier, the sale is illegal. | 1336 |
| TENANCY IN COMMON. | |
| Where there are several grantees in a conveyance who take in trust for certain purposes, they are, under Act Mass. 1785, c. 62, to be deemed tenants in common, and not joint tenants | 1056 |
| TIME. | |
| The doctrine that in law there is no fraction of a day is a mere legal fiction, and is true only sub modo, and in a limited sense, where it will promote the right and justice of the case | 699 |
| On the question of priority between a petition in bankruptcy and an execution, both marked as filed at the same hour, held that the actual time of filing might be shown by parol | 878 |
| Torts. | |
| See “Admiralty.” 1394 | |
| TOWAGE. | |
| See, also, “Collision.” | |
| A person who hires a steamboat to tow another vessel is not liable for an injury thereto sustained in the course of the navigation and not caused by the negligence of those in charge. | 461 |
| The owner of a canal boat cannot recover for damages caused by the negligence of a tug in the performance of a contract of towage which the former knew that the master of the tug made against the positive instructions of the owner | 627 |
| TOWNS. | |
| See, also, “Railroad Companies.” | |
| A charter requiring a certified copy of a summons to be served on the recorder in all suits brought against the town, held inapplicable to an action of ejectment | 950 |
| TRADE-MARKS AND TRADENAMES. | |
| A trade-mark for soap, “Mottled German Soap,” with a circle and moon and stars in the middle, held infringed by “S. W. McBride's German Mottled Soap.” with a crescent and single star, though “Mottled German Soap” or “Mottled Soap” had been in common use for years. | 3 |
| The word “Parabola” used as the name of needles, not being descriptive of any particular quality, held a valid trade-mark | 930 |
| “William Clark & Sons' Parabola Needles” is an infringement of “Roberts' Parabola Needles.” | 930 |
| TREATIES. | |
| Mode specified in which congress may destroy the operative effect of a treaty. | 1171 |
| TRESPASS. | |
| Where plaintiff, in trespass to land, relies upon possession without title, defendant, under the general issue, may show title in another under whose authority he-claimed to enter | 619 |
| TRIAL. | |
| See, also, “Appeal”; “Continuance”; “Evidence”; “Judgment”; “Jury”; “New Trial”; “Practice”; “Reference”; “Witness.” | |
| Where the judges of the circuit court are incompetent from interest or having been of counsel to sit in a cause, it is to be certified to the nearest circuit court in the circuit competent in point of law to try it | 705 |
| Plaintiff is not bound to give oyer of an instrument not in his possession and equally accessible to defendant | 1073 |
| A paper produced on notice by the adverse party who is not a party thereto and does not claim a beneficial interest under it must be proved by him who offers it in like manner as if he had himself produced it | 631 |
| Objections to a deed on the ground that there was no proof of execution by one of the parties held to apply to its effect and not to its admissibility | 631 |
| The fact that improper evidence was received at the first trial is no ground of admitting it at the second trial | 793 |
| After the jury has retired, and returned into court to give their verdict, a witness who has come into court since the jury retired cannot be examined | 803 |
| TRUSTS. | |
| See, also, “Executors and Administrators”; “Guardian and Ward”; “Wills.” | |
| An administrator who purchases in his own name on a sale under foreclosure of a mortgage belonging to his intestate holds the property for the benefit of the heirs, and cannot sell it without authority of the court, | 166 |
| UNITED STATES. | |
| A suit in admiralty to enforce a lien given by the state law is not a judicial proceeding under such law, and the United States is not entitled in such suit to have the res discharged from arrest under Rev. St § 3753. | 559 |
| USURY. | |
| A sale of an indorsed negotiable note for merchandise which is disposed of for a sum less than the value of the note is not usurious. | 756 |
| VENDOR AND PURCHASER. | |
| See, also,”Bankruptcy”; “Boundaries”; “Deed”; “Frauds, Statute of”; “Fraudulent Conveyances”: “Grant”; “Sale”; “Specific Performance.” | |
| A bond for title given on an executory contract for the purchase of land conveys an equitable estate to the vendee which is assignable | 615 |
| An interest in lands acquired at an administrator's sale before the title is passed is assignable, and such assignment need not be registered under the laws of North Carolina to be valid against creditors | 615 |
| The neglect of the vendee to pay the purchase money and demand a conveyance from the vendor in his lifetime will prevent an injunction to restrain the collection of a judgment at law for the purchase money, on the ground of the difficulty of obtaining a title from the infant heirs. | 9 |
| Construction of the statute of 27 Eliz. as to fraudulent conveyances in respect to prior and subsequent creditors and subsequent purchasers. | 760 |
| A purchaser for a valuable consideration, though with notice of a prior voluntary conveyance by his grantor, is protected against it by the statute of 27 Eliz | 760 |
| A purchaser under a judgment and execution against such grantor is not protected as a purchaser under such statute, but is considered a creditor standing in the place of the judgment creditor | 760 |
| A voluntary conveyance is void as to subsequent purchasers for valuable consideration, even with notice 985, | 996 |
| A conveyance to the grantor's wife or children, resting merely on the moral duty to provide for them, is voluntary, and void against purchasers | 985 |
| Where the deed is actually left with the recorder for record, the grantee's rights are protected, though the recorder actually records only a portion of it | 774 |
| The assumption of a mortgage in a deed estops the grantee to claim as an innocent purchaser, where the mortgage contained a fatally defective description | 474 |
| A purchaser is bound to take notice of the recitals in deeds in his chain of title | 474 1395 |
| Where a deed in a chain of title made by an administrator recites that he conveyed the land in that capacity, the person takes the title with full knowledge of the trust | 166 |
| WAR. | |
| See, also, “Prize.” | |
| As against the states in rebellion, the United States had both sovereign and belligerent rights, and might both establish a blockade and interdict all commerce with their ports. | 574 |
| As between citizens of different states in rebellion, a debtor is not entitled to an abatement of interest during the war on a debt due before the war | 1111 |
| WAREHOUSEMEN. | |
| Where grain is stored in an elevator warehouse under whose invariable course of business the highest market price or the same amount of grain of like quality is given on surrender of the receipt, but not the identical grain deposited, nor grain from any specific mass, the transaction is a sale and not a bailment | 179 |
| The owner of a warehouse receipt is not entitled to the specific grain deposited, but to the quantity specified in the receipt and contained in the warehouse | 176 |
| The indorsement and delivery of a warehouse receipt will transfer the title to the property covered thereby | 176 |
| In delivering wheat from a warehouse through a pipe into a vessel, the liability of the warehouseman ceases with the discharge of the wheat into the pipe, and he is not responsible for negligence in its loading, causing the breaking of the pipe and the loss of grain. | 628 |
| WILLS. | |
| See, also, “Conversion, Equitable”: “Executors and Administrators”; “Trusts.” | |
| Under an agreement in writing to make mutual wills, neither party can make a will without notice to the other | 1027 |
| Under a law giving all the annual income of testator's estate to his wife during her widowhood, to be equally divided between her and his son, held, that the fee did not pass, and the title went to his heirs at law | 29 |
| The residuary estate was directed to be divided between certain persons according to their several specific legacies. Held, that the residuary legacies vested on the death of testator | 360 |
| Under a direction to executors, in case the rents are not sufficient to pay the allowance to minor children to adopt some mode of raising the deficiency out of the other parts of the estate, not devised to the widow, held, that the executors had power to sell the reversion of the lands | 867 |
| WITNESS. | |
| See, also, “Bankruptcy”; “Costs”; “Deposition”; “Trial.” | |
| The court will not compel the attendance of an interpreter or expert who has neglected to obey a subpoena, unless in case of necessity | 1092 |
| A woman offered as a witness, and objected to on the ground that she is the wife of the party calling her, cannot be examined to disprove the marriage, when there is sufficient evidence aliunde before the court to raise a presumption of marriage | 1188 |
| A witness who has a direct and positive interest in the event of the suit is incompetent | 403 |
| A freeborn negro is a competent witness in a case of freedom | 130 |
| A proctor in the admiralty court in New York is a competent witness, though he is interested in the recovery; but where the claim is sustained upon his testimony alone, he cannot recover costs | 708 |
| Brokers who negotiate a contract of affreightment, their commissions not being dependent on its performance, are competent witnesses in a suit for breach | 146 |
| The heirs of a deceased mortgagor are not competent witnesses, in a suit in equity by an assignee to redeem, to prove the assignment fraudulent | 235 |
| In Massachusetts, where an executor or administrator is a party the other party cannot testify in his own favor, unless the contract was originally made with a party who was living and competent to testify | 1027 |
| Creditors of plaintiff's intestate are competent witnesses to support a claim by plaintiff as administrator against the defendant | 954 |
| The phrase “civil action,” as used in Act July 2, 1864, making a party or interested persons competent, includes suits in equity as well as actions at law | 833 |
| The extent of the privilege of the client to exclude the examination of his attorney as witness, and what papers of his client the attorney may be compelled to produce on notice, considered | 631 |
| The general good character of a witness cannot be proved, where his general character has not been impeached, though he has been contradicted by other witnesses. | 325 |
| The full cost of travel and attendance of witnesses living more than 100 miles from the place of trial, where they attended and gave their testimony, should be allowed in the costs | 13 |
| WRITS AND NOTICE OP SUITS. | |
| Where husband and wife are codefendants, service upon the husband alone is sufficient. | 985 |
| In the case of a bill for an injunction to stay proceedings in a suit at law, brought by defendant, a resident of China, subpoena was ordered to be served upon his attorney in the action at law | 350 |
| A court has discretion to permit an officer to amend a return with or without notice, and at any time after the date thereof, so as to bind the parties to the action or those claiming under them as privies, but not third persons who acquire rights in good faith prior to such amendment. | 752 |
| An amended return, as between the parties to the action or their privies, whether made with or without notice, cannot be questioned by them collaterally | 752 |
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