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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
21FED.CAS.
21FED.CAS.—85
21FED.CAS.—86
| Page | |
| Accord and Satisfaction. | |
| See “Compromise”; “Payment.” | |
| ADMIRALTY. | |
| See, also, “Affreightment”; “Bills of Lading”; “Bottomry and Respondentia”; “Charter Parties”; “Collision”; “Demurrage”; “Marine Insurance”; “Maritime Liens”; “Pilots”; “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping”; “Towage”; “Wharves.” | |
| Jurisdiction—In general. | |
| Act Feb. 26, 1845, did not enlarge the jurisdiction of the federal courts as to questions of admiralty | 851 |
| The jurisdiction of the district court embraces all cases of a maritime nature, whether they be particularly of admiralty cognizance or not | 1081 |
| Such jurisdiction and the law regulating its exercise are to be sought for in the general maritime laws of nations, and are not confined to that of England or any other particular maritime nation | 1081 |
| Admiralty has jurisdiction to enforce a claim for materials and supplies by libel in personam, without regard to the existence of a lien on the vessel therefor | 752 |
| ——Waters and places. | |
| Admiralty has jurisdiction of a libel by mariners for wages against a vessel plying on navigable waters entirely within one state | 456 |
| Admiralty has jurisdiction of a claim for seaman's wages on a voyage between Cincinatti and Pittsburgh on a vessel of more than 10 tons' burden | 1218 |
| The term “navigable waters” (Act Feb. 26, 1745) does not mean “natural streams,” and includes an artificial communication. such as the Welland Canal | 851 |
| ——Persons and property. | |
| A libel by British seamen against a British vessel for wages will be dismissed on the protest of the consul where it appears that the parties are about to pass into the British jurisdiction | 539 |
| Services rendered in raising a floating dry dock are not maritime, and admiralty has no jurisdiction of a suit therefor | 281 |
| Admiralty has no jurisdiction of a libel in rem by the owners of a bridge for damages sustained in a collision with a vessel | 548 |
| In the case of a collision in our ports between ships belonging to subjects of different foreign nations, our courts will not decline to take jurisdiction from motives of international comity | 86 |
| The district court in admiralty has jurisdiction in a case of salvage rendered by an American tug to a British vessel in Canadian waters | 159 |
| ——Rights and controversies. | |
| Admiralty has no jurisdiction to enforce the claim of a mortgagee of a vessel | 155 |
| A contract by the vessel to collect of the consignee advances and charges on the goods, and repay them to the shipper, is a maritime contract; and a suit in rem may be maintained thereon in admiralty | 176 |
| Admiralty has no jurisdiction of a suit by shipping masters to recover for services in procuring a crew to navigate a vessel from one port to another in the same state | 845 |
| A libel in rem will lie for tolls imposed by a state statute in favor of corporations organized for the improvement of rivers and harbors | 176 |
| Admiralty has jurisdiction of a libel to recover damages in the nature of demurrage, although there is no stipulation for demurrage in the bill of lading | 1264 |
| The acceptance of notes as a liquidation of a claim for breach of a charter party, but not in satisfaction thereof, will not bar the admiralty jurisdiction where the notes are surrendered in court for cancellation | 1208 |
| Procedure. | |
| The principle that where one creditor has two funds to resort to, while another has security on only one of such funds, the former will be compelled to resort to the other fund, will not be applied in admiralty at the instance of a mere mortgagee | 155 |
| Condemnation in a French court of admiralty of property carried into the port of an ally cannot be inquired into by the courts of this country | 1210 |
| ADVERSE POSSESSION. | |
| See also, “Ejectment”; “Limitation of Actions”; “Real Property.” | |
| To acquire title by adverse possession, the possession must have been open, adverse, and continuous for 20 years under a claim of title | 131 |
| An adverse possession held by a tenant in common, to the exclusion of his cotenants, bars under the statute of limitations or by lapse of time | 827 |
| Affidavit. | |
| See “Injunction.” | |
| AFFREIGHTMENT. | |
| See, also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Demurrage”; “Shipping.” | |
| A vessel which carries paper stock and petroleum in the same cargo is bound to use especial care in stowing them with reference to each other | 126 |
| The absence of a crew at night with the consent of the master, who remained on board alone while the ship was anchored in a harbor, renders the vessel unseaworthy; and she is liable for damages to cargo where she is driven ashore by a gale arising after the crew left | 430 1342 |
| Where a vessel is captured and condemned at an intermediate port, no freight is due for the cargo restored and sold at such port | 286 |
| In the case of cargo delivered to a consignee, a portion to be reshipped, and the residue without qualification, held, that the lien for freight was displaced, though the charter party provided for a credit after “discharge” without impairment of lien | 934 |
| ALIENS. | |
| See, also, “Consuls”; “Courts.” | |
| To entitle an alien to be naturalized, the five years' residence in the United States must be a continued residence | 540 |
| APPEAL AND ERROR. | |
| See, also, “Bankruptcy”; “Collision.” | |
| No appeal lies from a decree of a federal district court unless the matter in dispute exceeds the sum or value of $50 | 1328 |
| The superior court of the territory of Arkansas can only entertain a writ of error issued to, or an appeal from, a court of record | 927 |
| The appellant in Maryland is not bound to prosecute his appeal, and transmit the record, until the term next after the approval of the appeal bond | 838 |
| The sureties in the appeal bond are liable to the extent of its penalty, and have no right to compel the application of proceeds made under the original decree | 1089 |
| Where a judgment is reversed, but it is ordered that the reversal be set aside, and an affirmance entered on the filing of a remittitur of a certain amount, which is accordingly done, held, that the sureties on the supersedeas bond were released | 1115 |
| An appeal in admiralty supersedes altogether the decree of the court below, and the case is to be tried in the appellate court as if no decree had been passed in the court below | 482 |
| Errors committed on the trial of an action at law against the party who obtains a verdict are merged in the verdict | 702 |
| Where there is a good and bad count in a declaration, and it appears that the evidence was applied solely to the bad count, the judgment will be reversed | 894 |
| Where libelant in admiralty recovered a small amount, and appealed, held, that the circuit court could dismiss the libel at libelant's costs, although claimant had not appealed | 482 |
| The court may allow the general issue to be pleaded after judgment upon demurrer has been awarded by the supreme court, and a mandate issued to enter the judgment and award a writ of inquiry | 1224 |
| ARBITRATION AND AWARD. | |
| A revocation of the submission and notice thereof before the award is made and signed will invalidate the same | 388 |
| Army and Navy. | |
| See, also, “Habeas Corpus”; “Prize” “War.” | |
| Arrest. | |
| See, “Bail”; “Extradition”; “Malicious Prosecution. | |
| Assignment for Benefit of Creditors. | |
| See “Bankruptcy.” | |
| ASSUMPSIT. | |
| Persons who advance money on bills of exchange on the faith of a letter of credit of a third person, promising to accept the same when drawn, may maintain an action on such promise | 68 |
| Plaintiffs in such action may recover the whole damages, costs, and expenses paid by them, including re-exchange, with interest of the place where the money was payable by them | 68 |
| ATTACHMENT. | |
| See, also, “Bankruptcy”; “Execution”: “Garnishment”; “Writs and Notice of Suits.” | |
| Jurisdiction of justice of the peace in Virginia to issue an attachment | 937 |
| ATTORNEY AND CLIENT. | |
| A person who is not an attorney at law cannot represent another before a register in bankruptcy unless he show a formal power of attorney. An attorney at law need not show his authority unless put to Proof | 805 |
| An attorney cannot acquire a lien for his compensation upon a judgment obtained by him, unless he has a special agreement as to the amount thereof. Civ. Code Or. £ 1012 | 780 |
| A mere debt due by the adverse party to the client of the attorney is not money in the hands of such party within Civ. Code Or. £ 1012, subd. 3. upon which the attorney can acquire a lien | 780 |
| BAIL. | |
| If no appearance bail be required, the court will not require special bail on setting aside the office judgment | 1212 |
| In actions on the case for uncertain damages, the court will mitigate the bail according to circumstances | 332 |
| Bail may follow their principal into an other jurisdiction, and take him out of the custody of another person who has subsequently become bail in the latter jurisdiction | 1179 |
| BAILMENT. | |
| See, also, “Carriers”; “Warehousemen.” | |
| A bank requested another bank to loan money for it, and to make a proper charge therefor. The latter made the loan, but did not intend to charge therefor. Such intention was not communicated, but no charge was made in the running account between the banks. Held, that the bank was not a gratuitous bailee as to securities deposited to secure the loan | 961 |
| A person who hires a slave for a fixed term must pay the stipulated price, though he lose the service of the slave by his arrest and imprisonment for theft during the term | 813 |
| The recovery of a judgment for the hire of a slave to a period subsequent to the commencement of an action of trover to recover for her loss will bar the action of trover. | 1059 |
| A person who hires a slave, and carries her out of the state without the consent of the owner, whereby she is lost, is liable for her value | 1059 |
| An action against an attorney at law for negligence in failing to collect a promissory note must be brought in the name of the legal owner, though a receipt therefor was given to another | 1104 1343 |
| BANKRUPTCY. | |
| See, also, “Insolvency.” | |
| Operation and effect of bankruptcy laws, and of proceedings thereunder. | |
| The appointment of receivers of a corporation in proceedings in a state court, and possession taken by them of the property of the corporation, will not prevent subsequent proceedings in bankruptcy against the corporation | 139 |
| The bankruptcy court may prohibit creditors of the bankrupt from taking out execution in a state court, and levying it on attached property, until the assignee shall have time to discharge the attachment liens | 297 |
| After 10 years from the entry of a judgment in favor of a receiver appointed in a creditors' suit, adjudging an assignment to be fraudulent and void, the bankruptcy court will not interfere at the suit of an assignee in bankruptcy, though an appeal is still pending | 984 |
| The bankruptcy court may issue an in junction to restrain creditors from further proceedings in the state court, and from interfering with property previously assigned by the bankrupt for the benefit of his creditors | 985 |
| A suit brought to collect, enforce, or satisfy any debt which would not be discharged by a discharge in bankruptcy is not within the meaning of section 21, Act 1867 | 1110 |
| The bankrupt, pending proceedings against him, may be held under arrest in a civil action founded on a debt or claim from which his discharge in bankruptcy would not release him | 1110 |
| Where the amount due a creditor is in dispute in the state court, the bankruptcy court may allow the suit to proceed for the purpose of ascertaining the amount due, but execution will be stayed if the debt is such as will be affected by the discharge | 5 |
| A suit on a provable debt, though the debt is not such a one as to be affected by a discharge, will be stayed by the bankruptcy court | 765 |
| A suit on a claim arising out of a contract of sale procured by false representations of the bankrupt, where prosecuted in an action sounding in damages, may be enjoined | 765 |
| The bankruptcy court will enjoin proceedings between a bankrupt and another in a state court which are collusive | 303 |
| The bankruptcy court has no authority to withdraw from the state court suits pending therein between the bankrupt and other parties, and compel their trial in the district court | 297 |
| The payment of a dividend on a judgment proved in bankruptcy will be suspended pending a writ of error therefrom in the state court | 1219 |
| An application for leave to sue the bankrupt in a state court after the lapse of a year from the adjudication, where no discharge has been had by the bankrupt, must be on notice to him | 812 |
| Where a foreclosure suit is commenced in the state court after petition in bankruptcy is filed, and proceeds to a decree before the assignee is appointed, the right of redemption is cut off | 978 |
| Jurisdiction of courts. | |
| The district court of another district than that in which the bankruptcy proceedings are pending has jurisdiction, under the act of 1867, of a suit by the assignee against a resident therein to recover moneys paid defendant in violation of the bankrupt act. (Reversing 1213.) | 1270 |
| The district court has jurisdiction of a controversy as to the ownership of a fund in the hands or under the control of the assignee, without regard to the residence of the parties in interest | 120 |
| Register—Powers, duties, and liabilities. | |
| The books and papers in the register's office must be open to inspection at the local seat of justice | 1286 |
| Commencement of proceedings—Involuntary bankruptcy. | |
| The levy of an execution on sufficient property to satisfy the debt does not estop the creditor from filing a petition in bankruptcy, but the levy will be held to have been waived thereby | 1219 |
| Attachment creditors who acquired their liens within four months are not to be reckoned in computing the proportion of creditors who must unite in the petition. (Reversing 867.) | 866 |
| In cases pending at the time of the amendment of June 22, 1874, petitioners must insert the allegations as to number and amount of petitioners by amendment to the petition | 617, 622 |
| Where the hearing on a petition is adjourned from time to time until after the passage of the act of June 22, 1874, the petition must be amended so as to make it conform thereto | 890 |
| The allegation as to the requisite number of creditors may be on information and belief | 617, 622 |
| The allegation and proof as to the requisite number of creditors joining in the petition cannot be waived by the debtor | 617 |
| The case may be referred to a register or commissioner to examine the proofs, and report whether a sufficient number of creditors have joined in the petition | 495 |
| Affidavits are admissible to show that a single creditor, filing a petition, had good reason to believe that he did not constitute the requisite proportion of creditors | 617 |
| The petition will be dismissed on motion without requiring the debtor to file a schedule, where it appears that the requisite number of creditors have not joined | 622 |
| On such motion the court will hear affidavits in evidence offered by either party, and may order an examination of the per sons verifying the petition | 622 |
| The affidavit to the petition may be amended | 495 |
| A creditor who has joined in the petition cannot object to an amendment thereof which is necessary to the prosecution of the same to final effect | 495 |
| Amendments to the petition in bankruptcy relate back to the filing of the original | 1276 |
| Petitioners must support their allegations by proof where the facts charged are formally denied by answer. (Act 1841.) | 881 |
| Where the acts of bankruptcy are denied, though insolvency is admitted, a decree will not be entered until an act of bankruptcy alleged is proven | 139 |
| ——Intervention: Withdrawal: Dismissal. | |
| Where the petitioning creditors fail to appear or proceed on the return day or adjourned day of a rule to show cause, any creditors to the required amount may intervene and proceed to an adjudication | 1225 |
| Such intervening creditors need not constitute one-fourth in number of the creditors, or represent one-third in value of the debts due by the debtors | 1225 1344 |
| Attaching creditors may intervene and oppose the adjudication | 867 |
| A creditor who has in good faith joined in a petition cannot withdraw: otherwise, where he has been induced to join by misrepresentations | 495 |
| Where the only debt on which an adjudication may be entered is that of the petitioner, the bankrupt may have the petition dismissed on its payment, with costs | 1222 |
| A motion to dismiss and settle with the debtor cannot be made after adjudication | 1265 |
| ——Acts of bankruptcy. | |
| The suspension of payment of commercial paper for 14 days by a banker, merchant, or trader is prima facie evidence of fraud, and, where unexplained, will support a decree of bankruptcy | 1206 |
| The giving of a mortgage by a debtor on a large portion of his property, purporting to be security for a debt which in fact never existed, is an act of bankruptcy | 105 |
| The giving of mortgages in good faith to raise a contested attachment and pay overdue paper, to enable the debtor to continue business, held not an act of bankruptcy | 357 |
| In a rural community the mere nonpayment of a note at maturity is not sufficient evidence of insolvency | 1147 |
| An innkeeper who keeps a bar is a trader, and, when unable to pay his debts as they mature, is insolvent, although his property exceeds in value the amount of his debts | 105 |
| The inaction of a debtor in taking no steps to set aside a fictitious judgment entered before the passage of the bankrupt act, and to prevent execution being issued on it, is a procuring or suffering by him of his property to be taken on legal process | 689 |
| The legal liability for an act of bankruptcy cannot be discharged by a subsequent rescission of the transaction | 105 |
| Schedule. | |
| A judgment in favor of the bankrupt should be set forth in the schedule | 241 |
| Growing crops unmatured should be entered on the schedule of personal property | 756 |
| Meeting of creditors: Notice. | |
| Where, on the return day, there is no proof of service of notices, the register should adjourn the meeting, and direct new notices to be served: but where, instead thereof, he certifies the facts to the court, a new warrant must issue | 686 |
| Assignee—Election, appointment, and removal. | |
| Where copartners are adjudged bankrupts, the partnership creditors only can participate in the election of assignees | 657 |
| A proof of debt in the mode required by the statute establishes a prima facie case, though it is subject to objection and counter proof | 524 |
| A preferred creditor may surrender his preference at the first meeting, and vote for assignee, when the preference is of such a nature as to be effectually destroyed by such surrender | 524 |
| A creditor cannot change his vote after the meeting has adjourned, and thereby cause a failure to elect. If a mistake occurs he may make his objection to the judge | 657 |
| The assignees must be elected by a majority in number and value of the creditors who have proved their debts, and not by the greater part of those present and voting | 657 |
| The assignee, whether elected by the creditors or appointed by the register, has no power to act until the judge's approval is certified | 657 |
| Where the judge refuses to approve the appointment of the assignee elected by the creditors, he may order a new election, under Act 1867, £ 13, cl. 4 | 657 |
| An assignee is not in fault for failure to file a bond until the expiration of a time specified in an order to be made, requiring the giving of the bond | 332 |
| An assignee cannot be removed except upon an application made for that purpose, under section 18, Act 1867, general order No. 23, and form No. 41 | 649 |
| The assignee will not be removed for unsuccessfully attacking mortgages given by the bankrupt, where it appears that such action was justifiable | 130 |
| A second assignee cannot be appointed until the first is removed | 332 |
| ——Rights, duties, and liabilities. | |
| The district judge has jurisdiction to investigate the condition of the assignee's accounts on petition of a creditor to ascertain what, if any. dividends are due and payable. (Act 1800.) | 333 |
| Manner of conducting such investigation and powers of the circuit court in relation thereto determined | 333 |
| An assignee will be held to the strictest account where he fails to attend a reference ordered to obtain the necessary information upon which to $$$ directions | 649 |
| A mistake in the de$$$ of the premises in a mortgage m$$$ be corrected as against the assignee to the same extent as would have been allowed against the mortgagor | 754 |
| Property of bankrupt—What constitutes. | |
| Testator's son was adjudged a bankrupt before arriving at the age that an estate, given to trustees for his benefit, was to be turned over to him with its accumulations. Held, that the assignee in bankruptcy was entitled to the property held by the trustees as against the bankrupt | 358 |
| Hides purchased by a tanner with the proceeds of drafts drawn on A., to manufacture into leather for A., as well as the manufactured article, are the property of A., and the title does not pass to the assignee in bankruptcy of the tanner | 144 |
| The lapsing of a life policy for nonpayment of premiums due after the commencement of bankrupt proceedings does not defeat the title of the assignee | 556 |
| Where, under contract for a speculation in real estate, the bankrupt was to have a certain per cent. interest and a division of the profits, held, that his interest in the assets growing out of the operation would pass to the assignee | 1276 |
| Assets withdrawn by a retiring partner are subject to the payment of the firm debts, where the remaining assets are insufficient, and may be reached for the benefit of the creditors, though invested in a homestead | 542 |
| Subsequent dealings of the creditors with the remaining partner, and sales and credits by them, do not estop them from enforcing their claim against the assets withdrawn | 542 |
| ——Custody and control. | |
| Where voluntary bankrupts delay to surrender their assets, an order will issue for their immediate surrender | 1140 |
| The bankrupt may be ordered to surrender or satisfactorily account for property which he has failed to turn over or account for, under penalty of being committed for contempt | 235 |
| The bankrupt may be committed where the court is satisfied that he has not fully disclosed the facts concerning his property | 239 |
| Partnership assets cannot be reached oil an adjudication against one member alone | 1256 1345 |
| A solvent partner has no right to the possession of partnership assets in the hands of an assignee under adjudication against the remaining members of the firm | 1153 |
| On a bill filed by the assignee in bankruptcy to set aside a general assignment by the bankrupt, where the voluntary assignees were restrained from interfering with the property, held, that a receiver should be appointed by the bankruptcy court | 986 |
| Moneys received under a voluntary assignment adjudged to be valid, by a receiver appointed by the bankruptcy court, should be distributed by him, and not by the assignees | 999 |
| ——Exemptions. | |
| A policy of life insurance exempt from execution under the state law is to the same extent exempted under the bankrupt act | 556 |
| A paid-up life policy is not exempt to the assured, under Rev. St. Me. 1871, c. 49, £ 65 | 556 |
| In Maine the assignee has a lien on a life policy of the bankrupt for so much of two years' premiums as exceeds a certain sum, even though the assured borrowed the money to pay such premiums by pledging the policy therefore | 556 |
| The exemption in Pennsylvania of property worth $300 is additional to the exemption of necessary household and other articles, not exceeding in value $500, allowed by the bankrupt act | 93 |
| The homestead exemption provided by the new constitution of North Carolina is not applicable to prior debts | 1314 |
| A merchant in Kansas is not entitled to the special exemption allowed a “mechanic, miner, or other person,” of tools and instruments for the purpose of carrying on his trade or business | 766 |
| The partners are entitled to exemptions out of the joint assets where the individual assets are insufficient | 15 |
| The time to make a report of exempted property may be extended by the court | 1310 |
| An assignee cannot recover property excepted under section 14, Act 1867 | 699 |
| ——Wife's claim. | |
| An allowance will be made to the wife out of property descended to her before the decree of bankruptcy, but not reduced to possession | 1195 |
| ——Liens. | |
| Where, in the case of a statutory lien, the statutory requisites are not complied with until after the filing of a petition in bankruptcy, it is not valid as against the assignee | 120 |
| In the absence of an actual levy under an execution delivered to the sheriff, there is no lien on personal property protected by the bankrupt act (1841) | 91 |
| No lien attaches by the levy of an execution after defendant is adjudicated a bankrupt | 51 |
| A levy which has been relinquished be fore the filing of the petition creates no Hen upon the property, as against the assignee | 147 |
| The lien acquired by a valid judgment and levy before the petition in bankruptcy is filed is not invalidated by the bankrupt act | 719 |
| Where, in a suit commenced by attachment, a judgment and an order of sale have been obtained before petition filed in bankruptcy, the judgment lien is not invalidated, though no execution has issued | 1244 |
| Where the warrants for executions were signed the year before the petition in bankruptcy was filed, the executions are valid, though they were issued only a few days before | 1311 |
| A covenant in a mortgage to keep the mortgaged premises insured for the benefit of the mortgagee creates a specific equitable lien upon the insurance money, which is valid as against the assignee | 351 |
| A lien by execution on the individual property of a member of a bankrupt firm, under a judgment against the firm, will not yield to the equities of the separate creditors of such partner | 354 |
| A mechanic's lien given by law, though not perfected by the filing of the account when the petition in bankruptcy was filed, may thereafter be enforced as provided by law | 124 |
| A mortgagee will not generally be permitted to foreclose in a state court, but should invoke the summary power of the bankrupt court to sell the property, or, where the validity of the mortgage is denied, should J proceeds by bill in the district or circuit court | 128 |
| In the case of a creditor having several securities, held, that the court might so marshal the assets as to require such creditor to foreclose a mortgage before resorting to the general fund | 540 |
| In the case of obligations loaned by third persons to the bankrupt as security for debts, the creditor will not be required to first exhaust his remedy on them | 540 |
| Maritime liens will be accorded the preference which they would have in the admiralty. | 798 |
| ——Sale. | |
| The bankruptcy court has power to dispose of the incumbered property of the bankrupt in any manner deemed best for the interests of all concerned | 272 |
| Where the assignee has not obtained the highest price offered, as required by the order directing the sale, the sale will be set aside, and a resale ordered | 104 |
| Where it appears that property subject to valid liens will bring more at a private sale by the assignee, he may sell it, with leave to the lien creditors to apply for an order for the direction of the application of the proceeds | 719 |
| Proof of debts—What is provable. | |
| A debt created by fraud is provable | 5 |
| A claim against a partner for false representations as to the credit of his firm, inducing a person to purchase their paper, is a claim for damages for a tort, and is not provable before judgment obtained thereon | 739 |
| Notes given for the excess or bonus over legal interest are not provable | 1147 |
| At common law a writ of error and supersedeas of execution leave the judgment intact, and it is provable | 1219 |
| The right of an indorsee of a note to prove the same in bankruptcy is controlled by the law of the state where the contract of transfer is made | 1232 |
| An indorsee before maturity of a negotiable note, without notice of existing equities in New York, can only prove against the estate of the maker the amount paid there for | 1232 |
| A debt barred by the New York statute of limitations (which affects the remedy only) may be proven | 1250 |
| Where all the members of one firm are partners in another, they cannot prove its debt against the latter | 545 |
| A draft drawn by a firm upon one who is a partner with its members in another firm cannot be proved against the joint estate on the bankruptcy of the latter firm | 545 |
| A protest and notice of dishonor are not necessary to entitle the holder of a note made by a partner, and indorsed by the bankrupt firm, maturing after their bankruptcy, to prove it against the joint as sets. | 30 1346 |
| A preferred creditor may prove his debt after a surrender of the preference, unless a recovery has been had against him, under sections 35, 39, Act 1867 | 800 |
| Only a moiety of the debt can be proved where the creditor received a preference with knowledge of his debtor's insolvency, and that a fraud on the act was intended, except in cases of constructive fraud, where he voluntarily restores the preference. | 720 |
| —Secured debts. | |
| A mortgagee cannot apply for leave to foreclose his mortgage in another court without proving his debt in bankruptcy as a secured claim. | 119 |
| The petition in such case must be full and explicit, and signed and verified in the manner usual in other cases. | 119 |
| A creditor who has never accepted a deed of trust made to a third person for his benefit, and who disclaims all interest in it, may prove his claim as unsecured. | 524 |
| The proof of a debt which is in judgment waives the judgment; otherwise, where the judgment is proved. | 1004 |
| Where both the judgment and the consideration therefor are proved, held, that the security of the lien was not waived. | 1004 |
| —Set-off. | |
| The claim against an insurance company for a loss under a policy cannot be set off against an unpaid subscription to its capital stock, where it is insolvent. | 641 |
| A stockholder in a bankrupt insurance company cannot set off, against a claim on his subscription, an adjusted liability on a policy purchased by him at one-third its value, with notice of the company's insolvency. | 565 |
| A set-off cannot be allowed in the case of a fiduciary relation between the bankrupt and a creditor. | 641 |
| —Procedure. | |
| Proof may be made before a United States commissioner, although the bankrupt and creditor both reside in the same district. | 1250 |
| The debt is not considered as proven where the creditor retains possession of his deposition. | 1250 |
| Where the resident partners of a firm, having a partner residing abroad, prove a debt in bankruptcy, the firm becomes a party to the bankruptcy proceedings, and the resident partners will be restrained from prosecuting proceedings abroad to collect the claim. | 686 |
| Examination of bankrupt, etc. | |
| The examination of the debtor before adjudication may be ordered, though he denies both the indebtedness and the act of bankruptcy. | 234 |
| An execution creditor who has proved his claim held entitled to an examination of the debtors in composition proceedings. | 764 |
| An order for an examination of the bankrupt's wife will be refused where applied for by the assignee after neglecting to make his report on the return day of the order to show cause why a discharge should not be granted. | 1035 |
| The assignee may inquire into all the facts and circumstances of the transaction of the purchase of a house by the bankrupt, where the title is taken in the wife's name. | 730 |
| Costs: Fees: Disbursements. | |
| The register should examine and regulate the charges and expenses of assignees and counsel, whether any creditor objects to the account or not | 560 |
| Where the adjudication has been resisted, the petitioning creditor may recover the costs allowed by the act of 1853 to a party recovering in a suit in equity | 1222 |
| In such ease a special allowance for counsel fees cannot be made. | 1222 |
| An allowance of $1,000 to counsel for petitioning creditors, where the assets of the bankrupt amounted to $15,000, and the counsel had not in any way recovered property fraudulently conveyed, held excessive. | 583 |
| As to the charges of the register, and how questions in regard thereto are to be raised | 1286 |
| Where the fund is not more than sufficient for the privileged creditors, the assignee cannot spend any money in litigation for the benefit of the general creditors. | 560 |
| The reasonable expenses of creditors in attachment proceedings held should be paid out of the fund, where such proceedings contributed to preserve the property | 763 |
| On examination before a register, each party must pay for the direct examination of his own witnesses, and for such cross-examination as he may make of the wit nesses of the adverse party | 780 |
| Discharge—Proceedings to obtain. | |
| A discharge will be refused where the bankrupt failed to apply therefor within one year of the adjudication, where a small amount of assets have come into the assignee's hands, but no debts have been proved | 660 |
| An unopposed petition for discharge is to be submitted upon the state of the case existing on the return day | 913 |
| Act June 22. 1874, did not repeal any part of Rev. St. £ 5112, or any prior enactment embodied therein, except the pro vision requiring “fifty pereentum of such assets” | 1236 |
| Where the assets were not equal to 50 per cent. of the proved claims contracted since January 1, 1869, held, that the discharge should be granted as to all provable debts contracted prior to that time | 954 |
| In a case of a judgment obtained upon another judgment, which latter was obtained upon a note indorsed by the bankrupt, held, that the date of the indorsement was the date when the debt was contracted, under Act June 22, 1874. £ 9. | 1236 |
| Where a renewal note is given each year for seven years, the debt will be considered as contracted when the last note is given | 756 |
| Proceedings under a petition for a discharge are terminated by an adjournment without day, unless a new order is issued | 957 |
| —Proceedings in opposition. | |
| A creditor who has not proved his debt may still oppose the discharge | 1250 |
| An appearance for a creditor, entered on an adjourned day of the hearing on the order to show cause, after several previous adjournments, is not too late | 900 |
| The time to file objections to a discharge should be kept open by adjournments until full opportunity is given for the examination of the bankrupt and witnesses. | 957 |
| Opposition to the discharge must be in writing, and must disclose the name of the opposing creditor | 1329 |
| Creditors who have agreed that the bankrupt's property shall be transferred by the assignee to a certain person, to be distributed according to the terms of a previous general assignment for creditors, are estopped from setting up such assignment in bar of the discharge | 760 1347 |
| —Acts barring. | |
| The acts enumerated in Rev. St. £ 5110. are not in the nature of offenses or forfeitures of the right to a discharge, but are rather in the nature of violations of conditions precedent | 1007 |
| The failure of a member of a bankrupt firm to file a schedule of his personal property is no ground of refusing a discharge to the other members | 778 |
| The omission from the schedule of the amount of money in the hands of a receiver appointed in a state court suit for an accounting between the bankrupt and his partner held no ground for refusing a discharge | 1329 |
| The procurement of the appointment of a receiver in a state court suit held not to amount to a fraudulent transfer of property | 1329 |
| Where the circumstances tend to show that the party did not intend to prefer the creditor, the question of actual intent must be left to the jury, though he was insolvent, and the necessary effect of the payment was to prefer | 1007 |
| Where the necessary effect of a transfer is to prefer a creditor, and there is no attempt to explain away the inference of an intent to prefer, though the same is denied, the presumption of such intent will be held conclusive as a matter of law | 1007 |
| A bankrupt trader after March. 1867, must have kept such books of account as will enable an ordinary bookkeeper to determine his true financial condition | 756 |
| A former partner of the bankrupt cannot object to the latter's discharge on the ground that he failed to keep a cash account except as to matters occurring after the dissolution of the partnership | 558 |
| A tinsmith, who also keeps a small stock of hardware, is a trader, and required to keep books of account. | 558 |
| A saloon keeper, who sells cigars and liquors at retail, is a merchant or trader, required to keep proper books of account. | 1285 |
| —Scope and effect. | |
| A commission merchant is liable in a fiduciary capacity for the proceeds of goods sent to him for sale on commission. | 1110 |
| Prohibited or fraudulent transfers. | |
| The limitation within which a preference may be set aside is four months in involuntary and two months in voluntary cases. | 720 |
| The assignee cannot recover money paid by the bankrupt to a bona fide creditor more than four months before the filing of the petition in bankruptcy | 1212 |
| A mortgage or sale of property which is excepted under section 14, Act 1867, is not in violation of the act. | 699 |
| Any act whereby the debtor gives his creditor a preference must be presumed to have been made with an intent to prefer | 590 |
| A payment made in the ordinary course of business is valid where the creditor had not reasonable cause to believe that the debtors were insolvent, and intended to prefer him | 1000 |
| A creditor who has knowledge of transactions by the debtor out of the ordinary course of trade is put upon inquiry as to his solvency | 638 |
| The knowledge by a creditor, to whom an accommodation note was indorsed by the debtor, that the latter could not pay his debts as they matured, is reasonable cause to believe him insolvent | 1334 |
| Reasonable cause to believe the debtor insolvent, with knowledge that the trans action is in fraud of the bankrupt law, is the same as if the creditor himself had taken part therein | 147 |
| A trader is insolvent (Act 1867, £ 35) when he is unable to pay his debts as they mature in the ordinary course of his business | 590 |
| A sale by a manufacturer of chairs of a large quantity of black walnut logs, which he used in his business, is not one in the usual and ordinary course of business. | 733 |
| An agreement, between the parties to a suit against the bankrupt, to transfer certain claims to such action, so as to shelter them under the lien of an attachment issued therein, is in fraud of the bankrupt act | 297 |
| The exaction of a high rate of interest is not alone sufficient to render a judgment fraudulent and void as to creditors. | 1147 |
| The purchase of goods, in order that they might be taken on execution on judgments on notes given by the bankrupt, subjects the bankrupt to the penalty of suffering his property to be seized on execution | 147 |
| A sale of $12,000 worth of groceries at a low price for cash, at a wholesale store, to a person not in the grocery business, the day after the seller suspended payment, held not fraudulent | 981 |
| A sale of stores for a fair price before insolvency, for the purpose of curtailing the bankrupt's business, held not fraudulent | 1005 |
| A general assignment by insolvent debtors for the benefit of creditors under the New York law is valid as against a sub sequent assignee in bankruptcy | 998 |
| The creditor who, without fraud, receives as security a policy of insurance, and pays premiums thereon, is entitled to a pro rata value of the policy | 1334 |
| A creditor who has taken an unlawful preference by execution and seizure of the bankrupt's property is liable for its value, and is only to be allowed, on the accounting, credit for the actual expenses of sale, not including the officer's fees. | 985 |
| A mortgage given when a debtor was in solvent, to a creditor who had reasonable cause to believe him to be so, is void if made within four months of the filing of the petition | 589, 590 |
| A mortgage given to secure a surety or indorser as to pre-existing debts, made within four months of the petition, for the express purpose of giving a preference where the mortgagee had reasonable cause to believe that the mortgagors were insolvent, is void | 627, 632 |
| A mortgage given within four months in exchange for a deed of the property given more than four months before the petition was filed is valid, as a change of securities. | 589, 590 |
| The delivery of possession, subsequent to the failure of the bailee, of property, whose title was in the person who made advances thereon, is not invalidated by the bankrupt act. | 1168 |
| The exchange of goods covered by a warehouse receipt in the warehouse of the vendor for others of equal or less value is not contrary to the bankrupt act | 1168 |
| The transfer of merchandise by ware housemen after their insolvency in place of goods previously abstracted by them is a fraudulent preference | 1168 |
| Where a creditor obtains in good faith as security a receipt for coal in the debtor's yard not separated from the common mass, he may take possession after discovering the insolvency of the debtor. | 1282 |
| The purchaser of goods previously paid for takes a good title, though they were delivered by the manufacturer after the purchaser knew of his insolvency | 623 1348 |
| Where a conveyance is made in fraud of the bankrupt act, the fact that a part of the consideration was cash will not pre vent the assignee from recovering the en tire property | 638 |
| A mortgage to secure future advances is good for the amount of advances actually made thereon | 754 |
| Suits and proceedings in relation to the estate. | |
| The two-years limitation provided by section 2 of the act of 1867 is inapplicable to a suit in equity by the assignee for moneys alleged to be due the bankrupt under an agreement with defendant | 976 |
| The limitation of two years applies only to controversies in which the circuit court would have jurisdiction | 976 |
| An action by the assignee in bankruptcy of a corporation against its stockholders to recover unpaid subscriptions to stock is barred in two years after the date of the assignment to him | 856 |
| The assignee is entitled to be made a party to suits pending in the state court by or against the bankrupt, and the bankrupt will be enjoined from interfering with them | 297 |
| A fund in the hands of the bankrupt court will be detained pending suits to determine adverse claims to its ownership. | 120 |
| In the ease of a joint purchase in fraud of the bankrupt act, each purchaser is liable for the full value of the property, though they were interested in different proportions | 751 |
| Review. | |
| An appeal may be taken to the circuit court from a decree of the district court in a suit to recover alleged property of the bankrupt, where the amount in dispute exceeds $500 | 627 |
| Where the appeal provided for in section S. Act 1867, is not taken within 10 days after the decree is entered, the court acquires no jurisdiction | 977 |
| The provision of Act June 1, 1872, £ 2, limiting the time to appeal from the district court to one year, does not apply to appeals under the bankrupt act | 977 |
| The circuit court has power to review the findings, where the evidence is before it upon which the bankrupt was adjudged guilty of contempt in failing to disclose his property | 239 |
| In such case the circuit court may direct the district court to allow the bankrupt to be re-exainined before the register, and, on the return of an attachment, the court will examine the bankrupt | 239 |
| In the case of an appeal under section 8. Act 1867, from an order of the district court requiring the surrender of property belonging to the bankrupt, the order was affirmed on the merits. | 296 |
| Arrangement with, creditors: Composition. | |
| A creditor who has not proved his claim cannot vote on a resolution of composition. | 805 |
| The creditors on whose motion an order to show cause has been issued need not prove their debts anew | 805 |
| A creditor who has an attachment issued within four months before the filing of the petition cannot vote at a composition meeting | 805 |
| As to the form of an order referring a proposition of composition to a register. | 805 |
| No second meeting of creditors, as such is necessary to confirm the resolution of composition | 805 |
| At the hearing for the ratification of the resolution, objections may be presented by the unsecured creditors | 805 |
| It is only necessary that the confirmatory signatures should be attached at or before the hearing for a ratification | 805 |
| A resolution of composition is avoided by the fact that a creditor was paid to give up a threatened opposition though a sufficient number of creditors had accepted it, and there was no evidence that their action was influenced thereby, or that the debtor procured the payment to be made | 559 |
| Where the holder of the bankrupt's note was induced to sign the resolution by an un defined expectation of advantage held out by the indorser, held, that the composition would be set aside, though it did not appear that the bankrupt had anything to do with it | 559 |
| A signature of a creditor to a resolution of composition obtained upon the promise of another creditor to give him the promisor's trade in the future will invalidate the resolution | 1313 |
| A concealment of assets or a failure to name all the creditors does not necessarily render the proceedings void | 805 |
| A suit in the state court by a creditor in eluded in the composition will be enjoined pending completion of the composition | 1141 |
| Provable debts created by fraud are bound by a composition. | 1141 |
| In the absence of an adjudication or an assignment, a composition does not dissolve an attachment or affect the rights of attaching creditors who took no part in the proceedings | 805, 1308 |
| BANKS AND BANKING. | |
| The cashier of a bank, as such, has no authority in another state to settle an ac count by taking private notes and drafts, and giving a receipt in full | 356 |
| The burden of showing authority to make such settlement is upon the party who alleges it | 356 |
| A stockholder who has pledged his stock to the bank as collateral security for the payment of his notes not yet due may vote at the election of directors | 723 |
| The relation of the bank and a customer as respects a specific sum of money, remitted by the bank at the request of the customer to another bank to pay a debt, is that of principal and agent, and not that of debt or and creditor | 186 |
| A national bank has power to lend money upon the note or other personal obligation of the borrower, secured by a pledge of stock of a corporation as collateral security | 1331 |
| A loan by a national bank in excess of that allowed by Act June 3, 1864. £ 29, is not void, though it will expose the bank to forfeiture of its franchise, and render the participating officers personally liable | 1331 |
| A national bank has no power to guaranty the obligation of a person on the de posit of collateral security | 1036 |
| A state cannot tax shares in a national bank by requiring the value of the property of the bank to be added to the value of the shares, otherwise ascertained, to obtain its assessable value | 203 |
| Where the assessing officers, in taxing national bank shares, have arrived at a correct result, the collection of the taxes will not be restrained because the method was erroneous | 203 |
| BILLS, NOTES, AND CHECKS: | |
| Acceptance. | |
| A promise to accept a nonexisting bill of exchange will amount to an acceptance of a bill subsequently drawn in favor of a person who took the same upon the faith of such promise | 68 1349 |
| Interpretation. | |
| A note payable to A., B., C, or D. is payable to the promisees individually, and not to the three first jointly, or the fourth. | 312 |
| A note payable when a certain third party should settle her accounts with the maker held payable after the lapse of one year, that being a reasonable time for the maker to coerce such settlement | 894 |
| Indorsement and transfer. | |
| The transferer of a note impliedly war rants its genuineness | 1060 |
| It cannot be inferred that a transferee took the risk of the note's being a forgery because it was passed to him long after dishonor, at a heavy discount | 1060 |
| A person to whom a forged note has been passed may recover on the original consideration, without showing that defendant had knowledge of the forgery | 1060 |
| Demand: Notice: Protest. | |
| The holder of a check must give notice to the drawer of refusal of payment by the bank, and such notice must be averred in a declaration thereon | 1275 |
| A protest cannot be made in the name of a notary by his clerk | 134 |
| Sufficiency of notarial certificate of protest | 927 |
| Where a note falls due on Saturday, notice mailed to the indorser on Monday is in time | 1098 |
| The notice is properly directed to the post office where the party is in the practice of receiving his mail, though it be not the nearest post office | 1275 |
| Release or discharge of indorser. | |
| The first indorser is discharged where, after dishonor, an extension of credit is given without his consent, by an arrangement made between the maker, the holder, and subsequent indorsers | 1098 |
| Actions. | |
| An averment in a declaration that A., by B., made a certain bill or check, is sufficient | 1275 |
| A promise to pay by the indorser is presumptive evidence of due notice of protest and nonpayment | 1275 |
| BILLS OF LADING. | |
| See, also, “Admiralty”: “Affreightment”; “Carriers”; “Demurrage”; “Shipping.” | |
| Fire occurring on the wharf is not within the exception of dangers of the seas. | 259 |
| In the case of injury to paper stock from oil and coal forming part of the cargo, the burden is on the vessel to show that it arose from a peril excepted in the bill of lading. | 126 |
| The burden of showing that the vessel did not receive on board the number of bales of cotton receipted for is not sustained by the mere statement of the purser that such number was received, but a part of them left behind | 429 |
| The indorsement of a bill of lading transfers all the legal right in the property to the indorsee; as against a consignee who did not have prior possession | 116, 117 |
| Bonds. | |
| See “Counties”; “Municipal Corporations”; “Principal and Surety”; “Kailroad Companies.” | |
| BOTTOMRY AND RESPONDENTIA. | |
| To support a bottomry bond given by a master for repairs in a foreign port in which the owner has no agent, the money must have been advanced on the faith of the vessel, and must have been necessary to enable her to prosecute her voyage | 1029 |
| BRIDGES. | |
| See, also, “Collision.” | |
| In the case of a vessel attempting to pass a bridge across the Chicago river, the city must use every reasonable precaution, as soon as practicable after notice, to remove all obstacles | 814 |
| CARRIERS. | |
| See, also, “Affreightment”; “Bills of Lading”; “Charter Parties”: “Demurrage”; “Express Companies”; “Shipping.” | |
| The carrier is discharged from liability, as such, where goods are unloaded and separated on the wharf at a suitable time, pursuant to a full and reasonable notice to the consignee of the arrival of the vessel and a readiness to deliver | 262, 266 |
| Where prior notice has not been given, the responsibility of the carrier continues until the lapse of a reasonable time in which to remove the goods | 262 |
| Where the unloading is temporarily interrupted by the crowded state of the wharf, on account of the other consignees not removing their goods, no new notice need be given on resumption of the work | 262, 266 |
| Where goods are unloaded on a fast day, on which by the usage of the port consignees are not in the habit of receiving goods, and are destroyed by fire on the wharf on the same day, the carrier is liable, though due notice was given to the consignees | 259, 266 |
| Where the consignee is not present to receive the goods as they are unloaded, pursuant to a notice, the carrier is thereafter liable as an ordinary bailee for hire | 266 |
| In a case of goods landed on the steam-ship's own inclosed wharf, held, that the liability of the ship as carrier continued until the expiration of a reasonable time | 178 |
| Delivery on the wharf, where the goods are separated, and due notice is given the consignee, who has a fair opportunity to remove them, is sufficient | 411 |
| The carrier is responsible where he de livers the goods to the wrong person, though by mistake or imposition | 411 |
| A stipulation, in the bill of lading, that cotton should be received as unloaded, package by package, and thereafter should not be at the expense or risk of the vessel, is not unreasonable, and will be enforced. | 411, 414 |
| In such case, where the full number of packages are discharged on the wharf, the ship is not liable, though they were not all received by the consignee, where he had previous notice of the unloading, and the ship did not deliver to another | 411, 414 |
| The fact that the consignee was obliged to receive the cargo as landed on the wharf, package by package, does not dispense with the necessity of due notice to the consignee, and a reasonable opportunity to identify the goods, and receive them into his custody. | 414 |
| A carrier may deliver part of a shipment without impairing his right to hold the residue for freight on the whole consignment. | 934 |
| A shipper cannot hold a connecting line responsible except through the contract made by the original carrier with himself. | 202 1350 |
| The connecting carrier is held to the obligations of a common carrier, subject to the lawful restrictions made by the contract with the original carrier | 202 |
| A receipt by a carrier for transportation beyond its line, whore the whole charge is paid in advance, makes out a prima facie case of a contract to deliver at the destination | 171 |
| A statement in the receipt that the company is to forward to the place nearest or most convenient to the destination only, for delivery to other parties, who shall complete the transportation, on which its liability is to cease, does not change its liability where it has arrangements for through transportation | 171 |
| A common carrier may limit his liability by an express agreement so far as the common law makes him an insurer, but not for the negligence of himself or servants | 1040 |
| The mere taking of a receipt by a dray man of the shipper containing the words “not accountable for contents” does not constitute an agreement to limit liability | 1040 |
| Under an exemption of loss by “fire or other casualty while in transit,” held, that the company was not liable where the goods were burned in the cars by a mob who took possession while operations on the road were stopped during a strike of the employés | 1279 |
| A common carrier is liable for any interruption to the transit of goods caused bv a strike of its émployes, which occasions loss to the owners | 1279 |
| The words in a receipt “received in good order” make a prima facie case, but may be explained or contradicted by the carrier. | 1040 |
| In a suit in rem for loss or injury of goods, it is not necessary to charge defendant as a common carrier. | 1040 |
| In the case of damage from bad stowage, the recovery is ascertained by taking the difference between the market values of the goods in the damaged and in a sound condition | 127 |
| The fact that the owner of damaged paper stock sold the same at auction, and bought it in, and manufactured it into paper will not change the rule | 127 |
| The damages for refusal by a carrier to deliver goods to the owner is the difference in market price at the time of the demand and at the actual delivery | 706 |
| A carrier can maintain an action in admiralty for damage done to goods in his care | 164 |
| The slightest negligence will render the carrier liable for injury to a passenger if, by the exercise of the strictest care or precaution reasonably within its power, the in jury would not have been sustained | 1113 |
| The carrier is not liable if the passenger proceeds where there is apparent risk of danger, even though guilty of negligence | 1113 |
| Where a passenger is placed in imminent danger by the negligence of the carrier's servants, and makes an error in judgment in attempting to save himself, the carrier is, nevertheless, liable | 275 |
| Proof of the upsetting of defendant's stage coach, and injury to the passengers, casts the burden on defendant of showing that he exercised proper skill and care. | 275 |
| Where the accident is imputed to the misconduct of the driver, defendant must show that the driver possessed and exercised that degree of skill which competent drivers usually possess, and ought to possess to convey passengers with safety and comfort. | 275 |
| In the case of injury to a passenger by the carelessness of a stage driver, he may waive the tort and sue in assumpsit. | 275 |
| CHARITIES. | |
| A conveyance of realty and other property, in trust “for the purpose of founding an institution for the education of youth” in a certain county, held valid | 31 |
| CHARTER PARTIES. | |
| See, also, “Admiralty”; “Affreightment”; “Bills of Lading”; “Demurrage”; “Shipping.” | |
| Under a subcharter for “a full and complete cargo,” made subject to the conditions of the charter, which described the vessel as “of the net measurement of 537 tons, or thereabouts,” held, that the subcharterers were entitled to a cargo space of the net measurement of 537 tons, and not to the full capacity of the vessel | 708 |
| A guaranty of the depth of water at the place of loading necessary for a full cargo will be held to apply to the channel through which it is necessary that the vessel shall pass to reach the sea | 1192 |
| Where, in the case of lumber, the master, at the charterer's request, attempted to raft a portion to a place where it could be taken on board to make up a full cargo, held, that the charterer must stand the loss caused by the raft's being broken up by the violence of the waves | 1192 |
| The master cannot vary the contract made by the owners with the charterer | 227 |
| Bills of lading given by the master, waiving the lien of the shipowner, are ineffectual in the hands of a person who had knowledge of the charter party | 227 |
| Where goods shipped abroad were sold at an intermediate port, and the proceeds applied to the payment of freight under the charter party, they are not subject to a lien for the charter money due on arriving at the ultimate port of destination | 227 |
| The existence of a charter party, of which the shipper had no knowledge, will not relieve the vessel from the lien which the shipper has for the safe conveyance and delivery of his goods | 320 |
| The lien of the shipowner on the goods of the charterer is not limited by the amount of the penal sum in the charter party | 227 |
| The consignee of a charterer, who deals with him in that character, must be presumed to know the contents of the charter party | 1201 |
| A payment of freight to the charterer by the consignee will not discharge the lien on the goods for the charter money where the charterer is not owner for the voyage | 1201 |
| The master waives his lien on the goods for freight where he directs the consignee to pay the freight moneys to the charterer. | 1201 |
| CLAIMS. | |
| The making and the presenting of false claims against the United States are distinct offenses, under Rev. St. £ 5438 | 1144 |
| COLLISION. | |
| See, also, “Admiralty”; “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | |
| Nature of liability—Coatrlbutive fault. | |
| The effect of the tide upon a steamer entering a harbor does not make out a case of inevitable accident | 86 |
| Where a vessel injured by a collision with another at a wharf in a violent storm is cut adrift to prevent her sinking at the wharf, and collides with another vessel, held, that the latter collision is not a case of inevitable accident. | 1277 1351 |
| A fault of one vessel will not excuse want of care, diligence, and skill in the other, so as to exempt her from sharing the loss and damage | 774 |
| Rules of navigation. | |
| The rules of navigation are not inflexible, and a vessel which strictly adheres to them may be guilty of a tortious injury to another which fails to observe them | 406 |
| The rule on the Mississippi that ascending boats shall run the points, and descending boats the bends, will be enforced | 1325 |
| Large steamers are held to extreme diligence when in the neighborhood of smaller and weaker vessels | 290 |
| Between sail vessels. | |
| In the case of two vessels nearing each other, the one being closehauled, and the other having the wind free, the latter must give way. | 530 |
| Between steam and sail. | |
| A sail vessel closehauled, on meeting a steamer, must keep her course | 329 |
| A sailing vessel, discovering the lights of a steamer nearly ahead, on a dark and cloudy night, has no right afterwards to chance her course, on the supposition that she has not been seen by the steamer | 782 |
| The steamer need not slacken her speed nor change her course, where she sees the lights of another vessel, and has no reasonable ground to apprehend a collision | 783 |
| Between steam vessels. | |
| A steamboat which signals another for a departure from the ordinary rule of navigation must take the hazard of the maneuver, whether she hears a response to the signal or not | 164 |
| A steamboat which answers two whistles of another by the same signal cannot be held in fault for starboarding her helm to pass to port | 163, 164 |
| The rule of porting the helm when meeting on parallel courses is inapplicable to a vessel moving slowly against the tide, when out of the channel of a river which is left free to the other vessel | 290 |
| A steamer descending a river, meeting a ferryboat on a crossing course on her port hand, will be held at fault for starboarding her helm instead of keeping her course | 761 |
| Overtaking vessels. | |
| Where the vessel ahead is willfully thrown across the path of the overtaking vessel, she cannot recover for an ensuing collision, though the rear vessel be not without fault | 217 |
| Vessels moored, etc. | |
| A general regulation of the harbor masters forbidding vessels to anchor in a certain spot will be held to have been waived where no notice was given to remove | 86 |
| A vessel which anchors in the channel or entrance to a port, except in case of necessity, or remains there longer than the necessity continues, will he held in fault in case of collision with a moving vessel | 774 |
| It is no defense to a libel for injury to a sloop by the lurching of a scow moored along side, during which she dumped her deck load of stone, that the lurching was caused by the swells from a passing steamer and the scow striking the ground, as, in such case, the owner was at fault in mooring the scow next the sloop | 865 |
| In case of a collision with a vessel at anchor, the moving vessel is prima facie at fault | 774 |
| River and harbor navigation. | |
| An upgoing boat on the Ohio river may signal which side of the down boat she will take, but she cannot insist upon such rule when its observance will render a collision probable | 661 |
| A vessel entering a harbor at night should have her crew on deck on the look out | 774 |
| A steam tug moving in a slip in a fog is not required to sound her steam whistles as a signal to a steamer moving outside | 1137 |
| Steamer navigating the East river, rounding Corlear's Hook, when a thick fog shut down upon her, and she was unable to anchor, held in fault for running near the piers, instead of keeping into the middle of the stream | 1188 |
| Lights, signals, etc. | |
| A ship is in fault in having her colored lights placed abaft her mizzen rigging, so as to be obscured from a vessel approaching ahead | 1152 |
| Carrying the statutory lights will not exonerate a vessel from responsibility for a collision, where the special circumstances reasonably called for extraordinary measures to apprise other vessels of her proximity and character. | 101 |
| The failure to display the exact statutory light by a vessel at anchor is not sufficient contributory negligence to prevent recovery of damages for a collision occasioned by the reckless navigation of another vessel | 855 |
| A vessel lying in the channel of a port from necessity is bound in the nighttime to show a light | 774 |
| Where a collision on the high seas between a foreign vessel and a vessel of the United States was caused by the neglect of the latter to carry the lights required by the acts of congress, her owner cannot re cover against the foreign vessel | 783 |
| The sail vessel will be held solely in fault for a collision with a steamer where she carried only a white light, which induced the steamer to believe that she was another steamer, whose side lights had not yet come into view | 783 |
| Lookouts; officers, etc. | |
| Steamboats navigating the western rivers must have a competent and vigilant look out stationed on the forward part of the hurricane deck | 19 |
| The fact that the hurricane deck was crowded with passengers is no excuse for the failure to keep a lookout stationed there | 19 |
| A neglect to keep a proper lookout, which does not in any way contribute to a collision, cannot be alleged as a ground of recovery | 1325 |
| The chief mate of a schooner, during his watch on deck, is a proper lookout | 1152 |
| Particular instances of collision. | |
| Between schooner and steamer going at the rate of nine knots an hour, where the latter was held in fault for reversing in stead of changing her helm | 329 |
| Between two steamers at night on the Hudson river, where the fact that a single light was carried on one vessel was held to have misled the other. (Reversing 406.) | 406 |
| Between two steamers in the East river, where one was held in fault for failure to shape her course according to her signal, and in keeping on, instead of stopping, where danger of collision was apparent | 1078 |
| Between propeller with defective screens on her side lights, having the right of way, and steamship with negligent lookout, where both were held liable. (Modifying 418.) | 420 |
| Between tow going up the East river, along the Brooklyn shore, on an ebb tide. and a steamer coming down the river, and attempting to sheer across the bows of the tug, where the steamer was held solely in fault | 869 1352 |
| Between tow and overtaking steamer, where both tug and steamer were held in fault for crowding | 219 |
| Between tow and steamboat on the Hudson river, caused by the attempt of the latter to pass to the starboard | 163, 164 |
| Between tow and steamer on dark and rainy night, where the tug was deceived by her inability to see the colored lights, and took the steamer for a vessel at anchor, and was held at fault for keeping on at full speed | 101 |
| Between steamer on the East river in a fog and tug maneuvering inside of the end of the piers, where the former was held in fault for being out of her place, and for too great speed | 1136, 1137 |
| Procedure. | |
| Evidence of a careful lookout that no light could be seen on an approaching vessel is affirmative evidence that no light was burning on her | 313 |
| Libelant cannot have a decree for full damages unless he show both fault on the other vessel and the absence of fault on his part, which contributed to the collision | 661 |
| Libelant must show, by preponderating evidence, that the other vessel was guilty of negligence or of some misconduct | 530 |
| In the case of a collision between a steamboat and a heavily laden flatboat, the presumption of fault is against the steamer where there is a doubt by reason of a conflict in the evidence | 914 |
| A ship, having come in from sea in a seaworthy condition, the fact that she was sunk at her anchorage, by the blow of a steamship carried against her by the tide, does not establish that she was not tight and strong | 86 |
| Evidence of the witnesses on board of one vessel that the lights of the other were not seen, though a careful lookout was kept, held to outweigh the testimony of witnesses for the other vessel that her lights were brightly burning, coupled with a suspicious circumstance that her lights were saved, though her crew had no time to save their clothing | 313 |
| Rule of damages. | |
| Inhuman conduct of the master of a vessel in collision, in not giving proper assistance to the damaged vessel and her passengers and crew, cannot be considered in estimating damages | 530 |
| The owner, after collision, who allows his boat to lie until she becomes worth less, is only entitled to the expense of raising her, and putting her in repair, with a reasonable allowance for loss of time and freight and damage to the cargo | 285 |
| Where the only evidence introduced was as to the total value of the vessel, the court may either allow nominal damages or estimate them from the court's knowledge of such cases and the general facts proven | 285 |
| Where the repairs exceeded the value of the vessel, held, that libelant should re cover only her value at the time of the accident and the necessary expenses to ascertain the extent of her injuries | 865 |
| Full value was allowed where the amount for which a sunken vessel was sold after she was raised did not exceed the expenses of raising her | 1137 |
| Where competent persons offered to raise a sunken vessel for a certain sum, damages for expenses of raising must be reduced to such sum | 89 |
| Demurrage for the delay beyond the time it would have taken such persons to raise the vessel cannot be allowed | 89 |
| Demurrage for delay in making repairs is recoverable, though such repairs made the vessel worth more than she was worth before the collision | 414 |
| The expenses of repairs were reduced to the lowest estimate where the bills were exaggerated, with the connivance of the master | 298 |
| In the case of a vessel sunk at her anchorage in the port of her destination, the value of the cargo must be taken at such port, less freight and duties | 89 |
| For an injury to cargo carried to its destination after the vessel is raised and repaired, the vessel at fault is only liable for the loss that would have been sustained on its immediate sale at the nearest port | 914 |
| The amount paid for the hire of a vessel to take the place of the injured one is better evidence of the proper amount of demurrage than the opinion of witnesses | 164 |
| Division of damages. | |
| Where a collision happens without fault of either party, or the fault cannot be ascertained, or if both were in fault, the damage and loss are equally divided | 774 |
| In the case of mutual fault, the damages will be equally divided | 661 |
| Division and apportionment of damages where a vessel and cargo were totally lost, and the other vessel injured, in a case of mutual fault | 420 |
| Review. | |
| In a case of irreconcilable conflict in the evidence, where an equal number of witnesses have been examined on both sides upon whose credibility the case depended, the decree below will not be disturbed | 289 |
| Compositions. | |
| See “Bankruptcy.” | |
| COMPROMISE. | |
| See, also, “Bankruptcy”; “Payment.” | |
| An agreement of compromise fairly made must be executed without regard to the merits of the dispute compromised | 501 |
| CONFLICT OF LAWS. | |
| See, also, “Courts”; “Limitation of Actions.” | |
| A contract of a corporation relative to personal property is governed by the law of the state in which it is incorporated and has its principal place of business, and within which the property is situated and the contract was made | 306 |
| A letter of credit given in Massachusetts by an agent there of a foreign banking house held governed by the laws of Massachusetts, and not by those of the domicile of the bankers | 68 |
| Congress. | |
| See “Constitutional Law”; “Statutes.” | |
| CONSTITUTIONAL LAW. | |
| A statute of limitation allowing nine months' time in which to commence action upon causes accruing four years before held not unconstitutional | 286 |
| A charter authorizing a bank to construct waterworks for a city to be purchased by the latter at its election after the expiration of a certain number of years, to be paid for by its bonds, creates a contract whose obligations cannot be impaired by the imposition of onerous terms upon the issue of the bonds | 221 1353 |
| The provision of Act March 2, 1867, authorizing certain proceedings before commissioners, does not violate the constitutional provision vesting the judicial power in officers appointed by the president with the consent of the senate | 58 |
| The clause within the act of 1862 creating a penalty for nonpayment of the direct tax is not unconstitutional, as a discriminating tax or an ex post facto law | 1173 |
| CONSULS. | |
| The consular character of an alien only exempts him from the jurisdiction of the state courts in civil suits, and he may be sued in the federal circuit and district courts | 212 |
| The state courts have no jurisdiction of suits against foreign consuls, but they have jurisdiction of suits brought by them | 149 |
| CONTEMPT. | |
| Any interference with property over which a receiver has been appointed pending foreclosure of a mortgage is punishable as a contempt | 968 |
| Striking employés of one railroad, who prevent the employés of the receiver of another from working, commit a contempt of court, and are to be treated in as summary a manner as if the contempt were committed in the actual presence of the court | 968 |
| CONTINUANCE. | |
| Where the nature of the action is changed by amendment, the cause may be continued, although at the fifth term after its commencement | 720 |
| CONTRACTS. | |
| See, also, “Assumpsit”; “Sale”; “Vendor and Purchaser.” | |
| A subsequent agreement by the maker of a note to pay a certain sum if the note is not paid punctually when due is without consideration, and not enforceable. | 1329 |
| But an agreement to pay the expense of the payee coming into another state to collect the note may be enforced | 1329 |
| A contract in violation of law or against public policy cannot be enforced | 881 |
| Where an act is to be done on a certain day and at a certain place, the legal time of performance is the last convenient hour of the day for transacting business; but a tender and refusal at any other time of such day is sufficient | 549 |
| In an action on the case for failure to per form a parol contract, the time of making it is not material | 894 |
| COPYRIGHT. | |
| A single sheet containing original matter may be entitled to the protection of a copyright | 863 |
| Labels used on vials and bottles to designate certain medicines and the diseases cured by their use are not books, entitled to protection under the copyright act | 863 |
| Labor bestowed on the production of another is enough to constitute a claim to copyright | 738 |
| The translator of a play by a foreign author who has obtained a copyright upon it is entitled to protection against the use of any part of his translation by another | 1335 |
| The publication, by authority of the owner of a copyright of a drama, of a novel founded thereon, is not a dedication of the drama to the public | 1337 |
| In the case of a copyrighted translation of a play by a foreign author, held, that there had been no dedication by complainant, or a memorization by defendant, which would entitle them to represent it without authority from plaintiff | 1337 |
| A preliminary injunction restraining defendant from publishing, in his reprint of a foreign encyclopedia, articles therein duly copyrighted in America, will be denied, where the injury to defendant from its granting would be far greater than the in jury to plaintiff by its refusal | 876 |
| CORPORATIONS. | |
| See, also, “Banks and Banking”; “Counties”; “Express Companies”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers”; “Telegraph Companies”; “Turnpikes and Toll Roads.” | |
| A by-law adopted by the board of directors, providing how special meetings of the board shall be called, does not affect third persons dealing with the corporation | 306 |
| Proceedings of the board of directors at a special meeting not called in the manner prescribed by the by-laws may be subsequently ratified by the corporation | 306 |
| A corporation is private unless the whole interest belongs to the government, or it be created for the administration of political or municipal power | 6 |
| A deed to a corporation of land which it is prohibited by its charter from taking is absolutely void as to all persons | 60 |
| A corporation having power to purchase only such real estate as is required for its business, or mortgaged or conveyed for debts, or purchased on judgments, or obtained on debts, cannot, on a foreclosure sale of a prior mortgage, acquire title to that portion of the tract of land not included in its mortgage | 60 |
| A foreign corporation engaged in the business of reducing ores may purchase more land for the erection of its works than that required at the time, and may subsequently sell the parts not needed | 205, 207 |
| Authority in the charter to acquire and hold property to a certain amount is an implied prohibition against the purchase of property to a greater amount, and invalidates a contract therefor | 966 |
| A corporation cannot execute a deed or mortgage otherwise than under its seal | 161 |
| The power to execute a mortgage of real estate by the officers can only be conferred by vote of the directors acting as a board | 161 |
| The only evidence of such vote is the official record of the corporation | 161 |
| The consolidation of railroad corporations of different states under the laws of those states will not prevent one of the corporations from bringing suit against the other in the federal court, as corporations of different states | 198 |
| Under Code Or. 661, the president or secretary can be elected only by the board of directors | 161 |
| The ownership of stock does not give the stockholders any title to the property of the corporation | 221 |
| A meeting of stockholders without notice is invalid | 161 |
| Persons who organize a corporation for the manufacture of an infringing article are personally liable for the infringement by the corporation | 212 |
| Where a corporation refuses to take steps to protect its rights, threatened with injury, a stockholder may maintain a bill to re strain the commission of the act | 306 1354 |
| In the case of the misapplication by a director of a portion of the corporate funds to which the shareholder has a distinct right, he may recover the amount | 306 |
| Provisions of the Oregon Code in relation to foreign corporations | 1063 |
| All acts of a foreign corporation done in Oregon, without first appointing a resident agent upon whom process may be served in actions against it, as required by law, are void | 1063 |
| COSTS. | |
| An offer to pay wages at the owner's counting house, and a refusal to pay elsewhere, does not exonerate him from costs | 449 |
| Where both parties in an admiralty suit are in the wrong, costs will not be awarded to either | 1201 |
| A settlement after suit brought with a seaman, whose name is continued after wards as a party to the record, does not necessarily bar his proctor of his claim to costs | 449 |
| A proctor who in such case intends to continue the suit to recover costs must give distinct notice to claimant or respondent | 449 |
| Libelant having asked no costs, but disbursements, only disbursements were awarded against him on dismissal of the libel | 1080 |
| Counsel who successfully resisted a lien claim which would have absorbed the proceeds in court held entitled to a fee of $250 out of the proceeds | 1163 |
| Travel and attendance of the successful party cannot be taxed in the federal circuit court, where not allowable in the state court | 955 |
| The amount reasonably paid for the execution of a foreign commission to take testimony may be taxed as costs | 979 |
| The amount of fees allowed for the execution of a commission in another state should not be in excess of the compensation allowed by law to a commissioner of the court | 979 |
| The compensation allowed by law to a commissioner of the court will fix the amount of fees for the execution of a com mission in a foreign country, unless it appear that the customary charge there is greater | 979 |
| Fees of proctor on motions in admiralty, clerk's costs for orders, and fees for com missioners for taking testimony | 318 |
| Where the court was adjourned over for several weeks, and a continuance was subsequently granted defendant, on payment of costs, on grounds which did not exist at the opening of the term, held, that fees of plaintiff's witnesses for attendance at both the actual and adjourned day were recoverable | 733 |
| The witness residing more than 100 miles from the place of trial, though within the district, is beyond the coercive power of a subpoena, and the costs thereof cannot be taxed | 33 |
| Witness fees cannot be taxed in the federal courts for persons attending at the request of the party unless they were regularly subpoenaed | 560 |
| COUNTIES. | |
| See, also, “Municipal Corporations”; “Railroad Companies.” | |
| A bond to convey to a board not in esse certain lots for public purposes, on the establishment of a county seat, is valid and enforceable | 491 |
| After the lapse of many years, the title to lots conveyed under a decree on the summary enforcement of a bond to convey the same for public purposes on the establishment of a county seat cannot be impeached by the heirs of the donor | 491 |
| County warrants in Arkansas are not commercial paper, but are subject to legal and equitable defenses in the hands of sub sequent holders | 1323 |
| A warrant issued for more than the sum actually due, so as to make its market value the amount of the debt, is void as to the excess | 1323 |
| In such case the holders will be treated as the equitable assignees of the original claims | 1323 |
| The act of county authorities in Arkansas in auditing a claim and issuing a warrant is not conclusive as a judicial determination upon the county | 1323 |
| COURTS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Equity”; “Habeas Corpus”: “Judges”: “Justices of the Peace”; “Maritime Liens”; “Removal of Causes”; “Rules of Court.” | |
| Comparative authority of federal and state courts: Process. | |
| The court obtains jurisdiction on the filing of a bill of all matter cognate to the litigation | 1331 |
| The attachment of freight moneys in the hands of third persons by a sheriff under process from the state court will not pre vent the marshal from levying process upon it in a suit in rem by seamen to recover their wages, so as to give jurisdiction to the district court in admiralty | 152 |
| Federal courts—Jurisdiction in general. | |
| The jurisdictional amount is that laid in the writ and declaration, and not that proved by plaintiff | 1275 |
| ——Grounds of jurisdiction. | |
| A suit in equity to stay proceedings at law pending in a federal court may be maintained in such court without regard to the citizenship or alienage of the parties | 212 |
| In the case of a corporation party, the court will conclusively regard all the share holders as citizens of the state which created the corporation | 198 |
| The federal circuit court had no jurisdiction on the ground of subject-matter of a suit against a person not a resident in the district, and not personally served with process, and not appearing therein, though an attachment has been made of his property | 135 |
| A corporation created by the laws of another state, but operating a railroad within the district, is found therein for the service of process | 604 |
| A foreign corporation is “found within” another state when it transacts its ordinary business and has a local agent there, on whom by the state law original process may be served | 724 |
| In a suit for infringement of a patent against a foreign corporation, process may be served on an agent within the district, although the business transacted therein has no connection with the infringement | 605 |
| A federal circuit court is within the pro visions of a state law that foreign corporations doing business within the state should submit themselves to service of process issuing out of “any court of this commonwealth having jurisdiction of the subject-matter.” | 724 |
| Jurisdiction of an inhabitant of the district cannot be acquired by an attachment of his property | 138 1355 |
| Defendant may take advantage of plaintiff's omission to state that he is a citizen or subject of a foreign state by motion in arrest of judgment | 1218 |
| Where neither party is a citizen of the state, but defendant served therein does not plead the matter in abatement, he cannot subsequently set it up | 929 |
| The federal circuit courts have jurisdiction of a bill to foreclose a mortgage in be half of a nonresident assignee, though the assignor could not by reason of citizen ship have filed such bill | 956 |
| A note payable to a certain person or bearer may be sued on in the name of the bearer, without alleging the citizenship of the payee named | 133 |
| The fact that the parties plaintiff and defendant to a cross bill, or some of them, are citizens of the same state, will not pre vent its being sustained in the federal court, where necessary to prevent injustice; and defendants, as parties to the original bill, are subject to the jurisdiction of the court | 667 |
| The federal circuit court has jurisdiction of an action against a collector of customs to recover back money paid as duties, and alleged to have been illegally exacted, irrespective of the citizenship of the parties | 702 |
| The federal circuit court has jurisdiction of a suit upon a supersedeas bond given in that court, independent of the citizenship of the parties | 1131 |
| ——Circuit courts. | |
| A defendant, to give jurisdiction on the ground of residence in a certain district, must be a real, and not merely a nominal, party to the suit. (Act Feb. 10. 1855, £ 9.) | 133 |
| Where a state contains more than one district, and the suit is not of a local nature, the suit must be brought in the district in which one or more of the defend ants resides | 1024 |
| The federal circuit court has jurisdiction of an original civil suit in which plaintiff is a citizen and defendant an alien and resident foreign consul, duly admitted as such by the president | 212 |
| A citizen of Pennsylvania may maintain a suit in the federal circuit court in New Jersey against a corporation of the latter state for injuries to lands lying in the former state by a canal located in New Jersey | 6 |
| The circuit court has jurisdiction of a bill filed by a stockholder of a national bank to enjoin its officers from an illegal application of funds to his prejudice | 1331 |
| ——Administration, of state lairs. | |
| On questions of commercial law, the federal courts are not bound by the decisions of the state courts | 665 |
| The federal courts are not bound by the decision of the highest court of the state that mandamus is the only proper remedy upon municipal bonds | 363 |
| ——Procedure. | |
| Rev. St. £ 914, applies only to such procedure as is established by the statutes of the several states, and not to that established by judicial construction of common-law remedies | 363 |
| The remedy by an action of mandamus, given by Rev. Code Iowa, £ 3770, cannot be enforced in the federal courts | 16 |
| Local courts. | |
| The circuit court of the District of Columbia has no jurisdiction of an attachment for a sum less than $20 | 101 |
| CREDITORS' BILL. | |
| When a creditors' bill is filed in the state court in Georgia to settle a trust, all creditors notified of the bill according to law are parties and bound by the decree | 286 |
| Criminal Law. | |
| See, also. “Bail”; “Extradition”; “Habeas Corpus.” | |
| CUSTOMS DUTIES. | |
| See, also, “Informers.” | |
| Rates of duty. | |
| Ship-building materials used in the construction of a vessel built for a foreign government, for use between ports in its own country, are not entitled to entry duty free. (Rev. St. ££ 2513, 2514.) | 65 |
| Cambric linen handkerchiefs, cut from the piece, and made abroad, are free of duty, under the act of 1832, as linen cambric | 1242 |
| Rocoa, having a distinct commercial name. held not dutiable as anhatto, nor entitled to entry free as a berry or vegetable. (Act Aug. 30, 1842.) | 715 |
| Invoice: Entry: Appraisal. | |
| The duties on spirituous liquors are to be assessed on the actual quantity arriving, and not on that shipped | 747 |
| To obtain a reduction of duties on goods damaged during the voyage, the importer must demand an appraisal before entry | 1247 |
| Where wool is packed in hides of equal value therewith, which are an article pf value in the market, the weight of the hides will not be deducted in ascertaining the cost of the wool per pound | 595 |
| The appraisal is not set aside by an appeal, though the collector illegally refuses to order a reappraisal | 700 |
| Under Act Aug. 30. 1842, ££ 16, 17, an appraisal by public appraisers is final and conclusive, unless the importer gives to the collector an absolute and unconditional notice of his dissatisfaction with such appraisal | 700 |
| The 20 per cent, penalty imposed by Act July 30, 1846, £ 8, attaches if the appraised value of the goods exceeds by 10 per cent the valuation in the entry, whether tie importer has made the addition or not | 700 |
| Payment: Protest. | |
| General expressions in a protest, which may include the specific objections, are not sufficient as the basis of an action to recover back duties illegally exacted | 136 |
| In the case of spirituous liquors erroneously assessed on the invoice quantity, a protest written on the face of the entries, “The actual gage and two per cent, claimed for leakage,” held sufficient | 747 |
| Sufficiency of protest as to the appraisement of goods | 657 |
| Actions for duties paid. | |
| A collector who demands and receives illegal duties, which are paid to him under protest, is liable in an action of assumpsit. (Act Feb. 26. 1845.) | 702 |
| The fact that the exaction of duties was not warranted by law will not prevent the decision of the collector being final and conclusive, under Act June 30, 1864, £ 15, where there was a failure to appeal to the secretary of the treasury | 1190 |
| An appeal under Act March 3, 1857, £ 5, to the secretary of the treasury, is not a condition precedent to a right of action against the collector to recover back duties illegally exacted, where the question is only as to the rate or amount of duty, and not as to exemption therefrom | 702 |
| Unless the exception does not appear on the face of the appraisement, it must be distinctly pointed out by protest, to raise the question in an action to recover back duties | 700 1356 |
| Violations of law: Forfeiture. | |
| Goods landed at different times, but from the same cargo and vessel, may be added together to make up the requisite amount to forfeit the vessel, under Act 1799, £ 50 | 438 |
| Allegations in the libel as to the goods landed and their value bind the government | 438 |
| A permit obtained by fraud or an oral permit from the custom officer to land goods will not save a forfeiture, under Act 1799, £ 50 | 441 |
| A vessel is not forfeited by the landing without a permit of two gallons of brandy, taken on board by a seaman for his own use on the voyage home | 438 |
| Customs officers. | |
| A collector, when authorized by the secretary of the treasury, may appoint as many deputies as may be necessary | 700 |
| A deputy collector may administer any oath required to be administered by the collector | 700 |
| DAMAGES. | |
| See, also “Affreightment”: “Carriers”; “Contracts”; “Collision”; “Patents.” | |
| The measure of damages for the tort of a master of a vessel who had shipped a minor known to him to have run away from another vessel held to be the amount of wages he was earning on the other vessel, with expenses and losses | 1292 |
| Cases stated in which fees, paid for surveys of injured vessels are allowed as part of the recovery for injuries caused by negligence | 569 |
| DEATH BY WRONGFUL ACT. | |
| The rule that personal actions die with the person does not obtain in admiralty | 909 |
| The process to enforce the remedy in admiralty for a wrong done or injury incurred by the death of a person may be either in rem or in personam | 909 |
| A husband can recover by a proceeding in rem, in admiralty, against the vessel which caused the death of his wife, for the injury suffered by him thereby | 909 |
| The wife of a person killed in a collision with a steamer, while navigating a rowboat in a harbor, may recover against the steamer where she was not navigated with sufficient caution | 910 |
| DEBT, ACTION OF. | |
| In debt on a bond, where its condition is not parcel of the obligation, as if the latter be a money penalty, and the former be to do some act, as to deliver goods, etc., it is not necessary that defendant plead uncore prist | 549 |
| DECEIT. | |
| See, also, “Fraud.” | |
| Measure of damages in an action of deceit in selling a vessel under false representation as to her national character | 1300 |
| DEED. | |
| See, also, “Vendor and Purchaser.” | |
| Under a statutory provision that a conveyance shall be recorded, a mere filing for record is not sufficient | 826 |
| A deed recorded is constructive notice only from the time it is actually recorded by being transcribed into the record book | 826 |
| DEMURRAGE. | |
| The consignee is not liable merely as such for damages for detention where no demurrage or lay days are mentioned in the bill of lading | 1264 |
| Where demurrage is not provided for, the consignee, being the owner of the cargo, has the burden of showing that the detention was reasonable | 1264 |
| The measure of damages for delay in unloading is the gross freight which the vessel would have earned under ordinary circumstances during the time of detention | 1264 |
| DEPOSITION. | |
| Rev. St. ££ 863-865, in relation to the taking of depositions to be used in the federal courts, are not repealed by section 914, requiring the federal practice to conform to that of the state courts | 145 |
| The filing of interrogatories in an equity ease is not necessary where the evidence is to be derived chiefly from books not yet examined | 53 |
| The deposition of a witness residing more than 100 miles from the place of trial, whether in or out of the district, may be taken de bene esse. (Act 1789.) | 33 |
| The deposition may still be read after the witness has moved within 100 miles, unless the objecting party shall show that such fact was known to the opposite parry in time to have had the witness subpoenaed | 33 |
| The officer taking depositions should certify each item of cost, and transmit the evidence of services rendered | 33 |
| A deposition taken under the act of congress which is written out by the party, and forwarded by him to the court, will be rejected | 1163 |
| Mode of taking depositions, under Act 1789, £ 3, subpoenaing witness, and rules of court, explained in note | 33 |
| DESCENT AND DISTRIBUTION. | |
| As to sales of real estate of an intestate for the purpose of distribution in the District of Columbia, and the powers of the circuit court and commissioners, see | 1199 |
| The share of a distributee who purchases at a sale of the intestate's realty may be applied to make good a loss on the sale caused by his delinquency | 1199 |
| DISTRICT ATTORNEYS. | |
| Counsel employed in legal proceedings within any district are presumed to act under the management of the district attorney, and have no right to assume control of the proceedings | 365 |
| Domicile. | |
| See, also, “Courts” “Prize”; “Removal of Causes” “War.” | |
| DURESS. | |
| A threat to attach a vessel is not such duress as will avoid the effect of a certificate made by a master as to the amount agreed to be paid for services | 1077 1357 |
| EJECTMENT. | |
| Construction of Rev. St. Ill. 1845. p. 104. £ 8, in relation to the protection of a person in possession of lands under color of title | 38 |
| Defendant in an action of trespass to try title in Texas, who has pleaded not guilty, and has also, in pleading the statute of limitations, set up a title for himself, is not precluded from showing the invalidity of plaintiff's title | 1230 |
| Defendant need, not show a connected chain of conveyances from a grant to entitle him to the protection of the statute of limitations | 579 |
| ELECTIONS AND VOTERS. | |
| In an action for the forfeiture provided for by Act May 31, 1870, £ 4, the declaration must aver that plaintiff was prevented from voting by force, bribery, threats, intimidation, or other such unlawful means | 1014 |
| A declaration averring that plaintiff was prevented from voting by an erroneous decision of defendant, an election officer, up on a question of law. Without averring that the decision was willfully wrong, is insufficient | 1014 |
| EMBARGO AND NONINTER-COURSE. | |
| Construction of Act Jan. 9, 1808, c. 8, £ 5, as to the meaning of “foreign” vessel | 242 |
| The use of a British license is no ground of condemnation, unless the vessel was seized during the voyage | 526 |
| EMINENT DOMAIN. | |
| Proceedings under Act Minn. March 1, 1856, £ 10, and Act Minn. Feb. 1, 1864, £ 20, for the condemnation of land for a railroad right of way | 958 |
| EQUITY. | |
| See, also, “Courts”; “Injunction”; “Pleading in Equity”; “Practice in Equity.” | |
| In equity, property may be taken from the possession of a defendant, having a clear legal title, when the relief sought is founded on a disputed equity | 667 |
| In the case of a lease of a railroad with guaranty of payment of rent by other interested roads, held, that equity would take jurisdiction of a bill to compel payment, and to restrain the guarantors from doing acts prejudicial to the rights of the lessors | 190, 198 |
| Equity will not interfere where a party has lost his remedy through negligence at law | 974 |
| In the case of a defective execution of a valid power of sale of infant's lands, where the infant had received its full value, and had never offered to return it, held, that a bill in equity would lie to perpetually restrain the infant from maintaining ejectment | 1018 |
| ESTOPPEL. | |
| A municipal corporation may be estopped by its own act, as well as a private citizen | 665 |
| A person claiming an interest in land, who assists in its conveyance to another, with out giving notice of his claim, is estopped from subsequently setting it up | 1164 |
| Where the judgment creditor is a competitor in bidding on a sale under his execution, he is not estopped, by receipt of the purchase money from the successful bidder, to subsequently set up his want of capacity to take the title | 60 |
| The owner who stands by and knowingly suffers an innocent person to be misled by his silence, and to purchase his property, without giving him notice of his title, is estopped in equity thereafter to claim it | 432 |
| EVIDENCE. | |
| See, also, “Appeal”; “Deposition”; “Witness.” | |
| Best and secondary. | |
| In the case of an instrument executed abroad, the presumption of law is that the subscribing witness is beyond the jurisdiction of the court | 547 |
| The execution of negotiable paper may be proved in New York without producing or accounting for the subscribing witness | 547 |
| Declarations and admissions. | |
| Where a criminal act is set up in defense to a suit at law, confessions extorted from the plaintiff, or those not voluntarily made, cannot be regarded by the jury | 833 |
| Parol evidence. | |
| Where the writing purports on its face to contain the whole agreement, parol evidence is inadmissible to prove that a part of the entire contract was omitted; otherwise, where the writing is incomplete on its face | 1228 |
| In the case of a contract to pay on the happening of an event not clearly defined, parol evidence is admissible to show the fact | 97 |
| Competency: Materiality: Relevancy. | |
| The record in a suit between the borrower and the lender for the loss of securities deposited as collateral is not evidence to prove the liability for negligence of the agent of the lender from whom they were stolen | 961 |
| Handwriting. | |
| The handwriting of a party cannot be proved by a comparison with the signature on a document filed in the case, whose execution is not proved | 1164 |
| EXCHANGE OF PROPERTY. | |
| Construction of contract for the exchange of barges at such time as it can be made “without injury or loss to either party.” | 823; |
| EXECUTION. | |
| See, also, “Attachment”; “Bankruptcy”; “Garnishment”; “Judgment.” | |
| An execution upon an exemplification from Maryland against a person not resident nor having property within the District of Columbia will be quashed on motion | 1285 |
| If execution issue before the end of the term in which the judgment was rendered, it may be quashed on motion, and the judgment rescinded | 1181 |
| A mere equitable interest in land is not subject to attachment by way of execution in Maryland | 567 |
| An execution coming to the hands of an officer in possession of the debtor's property under former executions, is not levied, ipso facto, by mere operation of law | 870 |
| After a return of the writ where the marshal has misconducted himself, plaintiff's remedy is an action for false return, and not for a rule on the marshal for a return | 1024 1358 |
| EXECUTORS AND ADMINISTRATORS. | |
| A sale by an administrator, unsupported by a judicial record of the proceedings in which he was given authority, held void | 941 |
| An administrator purchasing at an execution sale, under a judgment obtained on a note given for a part of the purchase price on a sale of decedent's lands, does not hold the land in a fiduciary capacity | 1149 |
| An executor cannot be compelled to appear and answer in a state where he has not taken out letters testamentary, nor done any official act, though process is served upon him personally | 973 |
| Exemptions. | |
| See “Bankruptcy”: “Homestead.” | |
| EXPRESS COMPANIES. | |
| See, also. “Carriers.” | |
| The company is liable for the exercise of ordinary care only, where a package of money is delivered to it without any express or implied notice of its contents | 171 |
| EXTRADITION. | |
| It is optional with the executive to surrender a fugitive from justice where there is no treaty or act of congress requiring it to be done | 1214 |
| Under the treaty with Great Britain of August. 1842, a person charged with piracy on board a British vessel on the high seas may be arrested and surrendered without any special act to carry the treaty into effect | 1214 |
| Such persons may be examined by a state magistrate, and ordered into custody, with a view to a future surrender | 1214 |
| The order to surrender may be signed by the secretary of state, and be issued from the state department | 1214 |
| The application for the surrender may be made by the British minister, and need not be founded upon a previous indictment or warrant | 1214 |
| FACTORS AND BROKERS. | |
| The factor has no lien for a balance with out possession of the goods, and a right in the principal to the property on which the lien is to operate | 117 |
| The transferee, for value, of a bill of lading, before the goods come to the possession of the consignee, has a right thereto, as against the consignee's lien for a general balance of account against the consignor | 116. 117 |
| FORCIBLE ENTRY AND DETAINER. | |
| The summons is sufficient if it contains the substance of the complaint, so as to apprise defendant of the nature and extent of the claim | 66 |
| Certiorari to review proceedings in forcible entry and detainer is allowed to defendant as well as complainant | 66 |
| Forfeiture. | |
| See “Customs Duties”; “Informers”; “Internal Revenue”; “Shipping.” | |
| FRAUD. | |
| See, also, “Deceit.” | |
| Where, on the sale of a timber tract, the vendor states that he is not acquainted with the land, and requests the vendee's agent to examine for himself, which he does, an action will not lie for false representations after five years, during which the vendee has sold part of the land, and cut part of the timber | 314 |
| FRAUDS. STATUTE OF. | |
| Sufficiency of memorandum of sale of goods | *257 |
| Where the seller was to deliver goods free of truckage, there is no delivery where they are sent by rail, and left at the station, with a notice to the purchaser that they have arrived | 257 |
| The title passes, within the Massachusetts statute of frauds, where goods bought on a credit of 60 days wefe weighed out and selected by the buyer, marked with his name, and placed in the seller's warehouse, subject to the buyer's call at any time | 142 |
| A verbal acceptance of an order drawn at the foot of an account of a third person against the drawer is not a promise to pay the debt of another within the statute | 1311 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Bankruptcy”; “Creditors' Bill.” | |
| A sale by one partner to another of an insolvent firm, for a valuable consideration, is not a fraud upon the firm creditors | 51 |
| A conveyance by a solvent grantor to his wife through a third person, where there was no intention to defraud creditors, will not be set aside on behalf of subsequent creditors | *986 |
| Settlements of property upon a wife amounting to nearly $100,000, during a time when the husband's firm was losing money rapidly, held fraudulent as to creditors | 992 |
| Bona fida purchasers from the wife of property conveyed to her by the husband, in fraud of his creditors, acquire a good title as against such creditors | 992 |
| GAMING. | |
| Money won at billiards is money won at play, within 9 Anne, c. 14. £ 5 | 490 |
| GOOD WILL. | |
| Corporeal property cannot adhere as an incident to good will | 1239 |
| What the incorporeal right called “good will,” considered as property capable of conveyance, does and does not carry with it | 1239 |
| A good will which rests only on the voluntary and unconstrained forbearance of those engaged in a particular trade is not property | 1239 |
| GRANT. | |
| See, also, “Deed”; “Public Lands.” | |
| To establish a grant, there must be an actual survey, or such a description with reference to natural objects or other lines capable of identification as will lead to the place called for | 98 |
| Where both the city and the United States appeal from a decree of the land commission confirming the claim of the city, held, that the withdrawal and dismissal of the appeal on the part of the United States was an assent by them to the main facts upon which the claim of the city rested | 365 1359 |
| By the laws of Mexico in .force at the date of the conquest, a pueblo or town, when once established and officially recognized, became entitled for its own use and the use of its inhabitants to four square leagues of land | 363 |
| Where a party, in order to bring himself within a class of legislative grantees, must exhibit his muniments of title, it may be shown that they have been dishonestly obtained | 905 |
| Mexican land grant confirmed where the question was one as to location only | 1073 |
| The fact that a Mexican title document is written on unstamped paper is not fatal to its validity | 1230 |
| A grant purporting to convey land lying within the limits of a colony will be void if the land, in fact, lies outside such limits, unless the parties acted in good faith | 1230 |
| Assisting witnesses held not necessary to the validity of final Mexican titles extended by alcaldes and commissioners to make sales | 1230 |
| GUARANTY. | |
| See, also, “Bills, Notes, and Checks”; “Indemnity”; “Principal and Surety.” | |
| A guaranty of the notes of a certain person cannot be applied as the guaranty of the joint notes of that person and another, given in renewal of the notes of the former | 56 |
| GUARDIAN AND WARD. | |
| The appointment of a guardian of a non resident minor under a statute authorizing such appointment “after notice,” etc., is void where the record does not affirmatively show that the notice was given | 941 |
| A sale by such a guardian is not validated by a statute making valid all sales under orders of the probate court, where there have been “defects of form, or omissions, or errors.” | 941 |
| An order of a probate court, which is a court of record having jurisdiction of the matter, is conclusive that notice of the sale of infant's estate, as recited therein, was given, when questioned in collateral proceedings | 1018 |
| Sufficiency of deed of sale of infant's estate under order of a court of probate in Connecticut | 1018 |
| HABEAS CORPUS. | |
| An erroneous decision of a court having jurisdiction of the offense, and of the person indicted, cannot be re-examined on habeas corpus | 1144 |
| The validity of an enlistment into the military service may be inquired into on habeas corpus by a federal judge | 702 |
| The writ will issue to obtain the discharge of a minor under 18 years of age, who enlisted into the service of the United States without the consent of his parents or guardian, who falsely swore on his enlistment that he was of lawful age | 947 |
| The power given to the secretary of war to order the discharge of persons in the military service under the age of 18 years (Act Feb. 24, 1864) does not give him exclusive jurisdiction thereof | 947 |
| A person will be discharged on habeas corpus, whose enlistment into the military service was procured by fraudulent representations on the part of the recruiting officer, or by mistake of fact of one ignorant of the English language | 702 |
| A married man who enlists in the military service upon his statement that he is a single man is not entitled to his discharge, though the army regulations require special authority for the enlistment of married men | 702 |
| A defense to an application for the writ not made before the district court is not available on appeal to the circuit court | 947 |
| HOMESTEAD. | |
| See, also, “Bankruptcy.” | |
| The action and judgment upon a bond given to relieve property from seizure for violation of the revenue laws must be considered as a civil proceeding, and the sureties upon the bond are entitled to the homestead exemptions given by the state laws | 230 |
| In Illinois, where a decree of divorce gave the custody of a child to the mother, and she was then in possession of the homestead, held, that ejectment would not lie by the husband to recover it | 1044 |
| HUSBAND AND WIFE. | |
| Relief will be given a husband who seeks the aid of equity to obtain possession of his wife's choses in action, only upon condition that he make a suitable settlement out of the property for the benefit of his wife | 1195 |
| A married woman may sue in Illinois for personal injuries without joining her husband | 1113 |
| During the pendency of a bill for divorce, the parties have no power to make an arrangement about the property which shall be binding, unless embodied in the decree | 1044 |
| INDEMNITY. | |
| Under an agreement by the seller of a slave to make good the damages sustained if the purchaser would defend a suit against the seller to recover the slave, held, where defendant was defeated, that the purchaser was entitled to recover as dam ages the value of the slave at the time of recovery, and not the present value | 320 |
| INFANCY. | |
| See, also, “Guardian and Ward.” | |
| A minor partner is not liable on partnership contracts | 1208 |
| INFORMERS. | |
| Rules prescribed by the laws of the United States for the distribution of the proceeds of a forfeiture | 583 |
| The information to induce a seizure need not be as full as the evidence in the case would authorize. It is sufficient if it induce the prosecution | 583 |
| The officers of a revenue cutter, when giving information, need not make a claim for a part of the forfeiture, nor need they take part in the prosecution to be entitled to a share | 583 |
| The consent by officers of a revenue cutter that property seized on their information shall be sent to another district for trial, and a disavowal of having instituted the suit, does not constitute a waiver | 583 |
| Officers of a revenue cutter suing for the informer's share of a forfeiture need not prove their commissions | 583 1360 |
| The collector of a port who received the proceeds of a forfeiture is not liable for such part as he has paid over to custom-house officers for their shares before notice of plaintiff's claim | 583 |
| The officers of a revenue cutter may join in an action of assumpsit against the collector for their proportion of a forfeiture | 586 |
| INJUNCTION. | |
| See, also, “Copyright”; “Patents.” | |
| There is no material difference between the principles and rules applicable to equity proceedings in copyright or patent right cases and those applicable to other suits in equity | 876 |
| A temporary injunction will not be granted to restrain the construction of a dike in the plan of improvement of a river directed by the secretary of war under an appropriation of congress | 762 |
| Fraud in obtaining jurisdiction in the federal court is a good ground in equity to stay execution of a judgment obtained in such action | 562 |
| An injunction might also be granted against levying the execution on articles improperly attached, when not good against the execution itself | 562 |
| An affidavit is not an indispensable prerequisite to the issuance of an injunction, but other proof may be accented | 687 |
| Affidavits evidently intended to be used in a case, but not entitled in it, may be read on motion for an injunction | 1335 |
| Mere delay in the issuing of subpœna after an injunction has been granted is not a sufficient ground for dissolving it, where it happened through inadvertence and mistake | 687 |
| INSOLVENCY. | |
| See, also, “Bankruptcy.” | |
| A general assignment under the state insolvent law will pass the title to a patent, but not the right to a subsequent extended term | 653 |
| A discharge in Rhode Island extends to debts and contracts not yet due | 1308 |
| A discharge in Rhode Island will bar the remedy in the federal court as well as in the state court | 1308 |
| A debtor committed under mesne process issuing out of the federal court cannot be lawfully discharged by an order of the state court made under an insolvent law of the state | 136 |
| INSURANCE. | |
| See, also, “Marine Insurance.” | |
| Where the contract of insurance is complete on the execution of the policy in the home office of the company, and not until then, the contract is governed by the law of the place of the home office, whether the policy be delivered first to the agent or the insured | 1183 |
| Where the property is not located as described, but in another building, there can be no recovery for its loss, and the policy will not be reformed | 1103 |
| Such construction of the policy should be adopted as will allow both printed and written clauses to be available | 1093 |
| Where, in the case of a failure to pay an annual premium, the insured failed to demand a paid-up policy, or to apply for a reissue, and pass a new medical examination, held, that there could be no recovery in the case of his death | 755 |
| A warranty in a policy of fire insurance will not be extended by construction to include anything not necessarily implied in its terms | 609 |
| A warranty of a force pump in a mill at all times ready for use includes a warranty of power to work it, but not any particular kind of power | 609 |
| A warranty that the force pump shall be at all times ready for use does not include a warranty that a peril insured against shall not disable it | 609 |
| Where the policy specially excepted the hazard of standing, riding, or being upon the platform of a moving railway car, or of an injury incurred by the insured's own negligence, held, that there could be no recovery where the assured was killed by falling from the platform of a car when the train was in full motion | 555 |
| A condition avoiding the policy on the sale of conveyance of the property without the consent of the company is not broken by the sale of an interest therein | 645 |
| A condition in a fire insurance policy to refer to arbitrators the amount of the loss, and that no suit shall be brought until the award is made, is void | 728 |
| An examination of the insured under oath after a loss, as provided in the policy, held ineffectual where made before a special agent of the company, during the illness of the insured | 1197 |
| The defense in a suit on a fre policy that the assured burned the property need only be sustained by the quantum of proof required in civil cases | 833 |
| A verdict for the insured will he set aside where it appears that he has been guilty of falsehood and fraud in the proofs of loss, which the policy provides shall vitiate the insurance | 1197 |
| The assignment of a life policy to secure a bona fide loan thereon is valid | 556 |
| INTEREST. | |
| See, also, “Usury.” | |
| Mode of computing interest in case of partial payments | 51 |
| INTERNAL REVENUE. | |
| See, also, “Informers.” | |
| Congress has a right to impose a tax by a new statute, although the measure of the tax is governed by the income of the past year | 762 |
| Construction of Act 1862, £ 50, in relation to the taxation of beer | 1139 |
| The fact that, in the aggregate, there is no excess in the number of matches on which a tax is paid, will not prevent the commissioner from assessing an additional tax on those boxes of the lot which overrun | 710 |
| Where it appears that some of the boxes of matches in a lot contained an excessive number, the burden is put upon the manufacturer to show what boxes did not overrun the number | 710 |
| Animal charcoal or bone black and bone dust are taxable as “manufactures of bone,” and the former is not exempt as “charcoal.” | 737 |
| A merchant tailor who makes clothes to order for individual customers, for their personal use, is a manufacturer, within Act July 1, 1862. £ 75 | 536 |
| The use by a manufacturer of salt of more than one set of boilers or evaporating pans, or more than one smoke flue or chimney, does not make him a manufacturer at more than one place | 273 1361 |
| Where the net earnings of a savings institution are divided among the reserve fund, capital stock, and deposits, in proportion to their respective amounts, the money paid to the depositors is dividends, within Act 1866, £ 120 | 380 |
| Act July 14. 1870, re-enacts Act June 30, 1864, ££ 122, 123, in reference to the tax of 5 per cent, upon the amount of interest upon a corporation's bonded indebtedness | 762 |
| Congress may declare a forfeiture for nonpayment of taxes that will take effect ipso jure; but a statute will not be so construed unless such intention clearly appears | 672 |
| The assessment of the penalty of 50 per cent, simultaneously with the apportionment, under Act June 7, 1862, is unauthorized, and renders void a sale for taxes made thereunder | 672 |
| A lien creditor of the owner of the fee may make a lawful tender of the tax, under the act of 1862, and may redeem the land from a tax sale | 672 |
| A lawful tender of the tax on lands to the officer authorized to receive it is tantamount to an actual payment, and divests the authority of the officer to sell the land for taxes | 672 |
| What constitutes a district for the purposes of taxation within Act 1862, providing for the collection of direct taxes in insurrectionary districts | 1173 |
| Irregularities will not affect the validity of the title under a sale for direct taxes within insurrectionary districts, under Act 1862, where the proceedings are colorable, and free from fraud, accident, or mistake | 1173 |
| A payment of a tax under protest is not a voluntary payment | 710 |
| A verbal protest, which is noted by the deputy collector on the back of the tax receipt given the person, is a sufficient protest | 1139 |
| An appeal after payment of a tax is not necessary before commencing suit to recover the same, where an appeal had been taken from the illegal assessment | 380 |
| JAIL AND JAILER. | |
| A prison-bounds bond may be assigned by a deputy marshal | 851 |
| JOINT TENANCY. | |
| Where persons hold under a title jointly, one will not be allowed in equity to acquire a better title and claim exclusively for himself and adversely to the other | 40 |
| JUDGE. | |
| See, also, “Courts.” | |
| Where the circuit or district judge is absent from the circuit, the supreme court justice allotted to such circuit may hear an application for an injunction in a cause pending therein at any place where he may be. (Rev. St. £ 719.) | 929 |
| JUDGMENT. | |
| Rendition and entry. | |
| The application to the clerk and his promise to enter an appearance are equivalent to an appearance, and a default cannot be taken on his omission | 1225 |
| Where a judgment is reversed on appeal, and a new trial granted, unless plaintiff consent to reduce the same to a certain amount, but no new judgment is entered, the judgment of the appellate court is not conclusive in another jurisdiction | 1232 |
| Validity. | |
| No presumption will be indulged in favor of the regularity of proceedings in pais for the purpose of divesting one person of the title to real estate, and conferring it on another | 667 |
| A decree of foreclosure upon personal service outside of the district, and constructive service by publication, is not subject to collateral attack for defects or irregularities which would have been ground for reversal upon appeal | 232 |
| A judgment rendered against a municipality by connivance of its officers, on warrants fraudulently issued, will be set aside in equity, but the municipality will be required to pay the consideration actually received | 731 |
| Lien. | |
| A decree in chancery, equally with a judgment at law, creates a lien on lands | 870 |
| A judgment with a stay of execution creates no lien on land until the plaintiff has a right to issue execution thereon | 870 |
| Operation and effect. | |
| A judgment obtained against one of two partners on a joint promise merges the contract | 974 |
| A dismissal for want of prosecution is not a bar to a subsequent proceeding for the same cause of action in another state | 484 |
| The matter decided must be within the purview of the proceedings before the court, and directly within the issue made and tried, to render the judgment or order an estoppel | 1063 |
| A decree of mortgage foreclosure is conclusive as to the capacity of plaintiff to maintain such suit and the validity of the note and mortgage sued on | 1063 |
| Relief against: Opening: Vacating. | |
| A decree requiring the payment of past and future annuities, and making provision for the execution of the same by the appointment of a commissioner and the sale of land, held a final decree | 834 |
| An affidavit of merits is not necessary on a motion to set aside a judgment by default irregularly issued | 1225 |
| An agreement between plaintiffs and some of the joint defendants that, if they will abandon the defense, plaintiffs will not call upon them for any part of the judgment, is a fraud upon the codefendants, and cannot be enforced | 1051 |
| After the term in which a final decree has been rendered, it cannot be reversed, annulled, or set aside except by appeal or bill of review | 813, 834 |
| This rule applies in the case of a final decree against two defendants jointly, where one died before the hearing | 813 |
| Satisfaction and discharge. | |
| In the case of judgment liens arising at different times, held, that the proceeds of the property were first chargeable with all the costs incurred by the judgment creditors | 870 |
| A covenant in a mortgage taken from a judgment debtor to suspend proceedings on the judgment until the property is regularly disposed of, and to return property levied on, does not discharge the lien of the judgment on the debtor's lands | 870 |
| Where execution creditors take a mortgage on the debtor's lands, and the sheriff returns that the property was released by order of plaintiffs, the lien is destroyed, and equity will not connect the mortgage with the judgments, so as to preserve the original lien | 870 1362 |
| Of different jurisdictions. | |
| A judgment of a court of one state has all the force and effect in any other state of a domestic judgment | 484 |
| Actions on judgments. | |
| A general averment that the parties declared against were defendants to the suit in which the decree was rendered is sufficient on demurrer | 1106 |
| JUSTICES OF THE PEACE. | |
| Query, whether the circuit court of the District of Columbia has jurisdiction of an appeal from a judgment of a justice of the peace on the verdict of a jury | 1266 |
| LANDLORD AND TENANT. | |
| Where the lessee has repudiated a parol lease, but has enjoyed the premises for the term named, the lessor may sue thereon, or may recover the rent on a count for use and occupation | 831 |
| The administrator of a grantee of land under a deed reserving ground rent is liable for rent accruing after the death of the grantee, though the land has descended to his heirs subject to the ground rent | 842 |
| Under a reservation of $20 rent, “clear of all taxes and charges,” the tenant is liable for the taxes | 1057 |
| A lease for 20 years, not acknowledged or recorded, is not a lease at will, and the landlord may distrain for rent thereunder | 1057 |
| The appraisement made at the time of levying a distress is prima facie evidence of the value of the goods distrained | 1060 |
| LIBEL AND SLANDER. | |
| The words, “He gets his living by thieving,” are actionable | 95 |
| Actionable words spoken in the second person will not support an averment of words spoken in the third person | 95 |
| LIENS. | |
| See, also, “Admiralty”; “Bankruptcy”; “Maritime Liens”; “Mechanics' Liens”; “Shipping.” | |
| Privileged liens are stricti juris, and are not to be extended argumentatively to cases not within the law which confers them | 292 |
| LIMITATION OF ACTIONS. | |
| See, also, “Adverse Possession”; “Constitutional Law”; “Ejectment”; “Equity”; “Maritime Liens.” | |
| Courts of admiralty govern themselves by the analogies of the common-law limitations of actions | 432 |
| In cases of concurrent jurisdiction, courts of equity act in obedience to the statute of limitations, and not merely by analogy | 1303 |
| Query, whether state statutes of limitation apply to suits for infringement of letters patent | 603 |
| Under Rev. St. £ 721, state statutes of limitations are applicable to actions in the national courts, except where the laws of the United States otherwise provide | 611 |
| An action for infringement of a patent before June 22, 1874, comes within the limitation of Act July 8, 1870, £ 55, under Rev. St. £ 5599, and is not within the operation of the state statute of limitations | 611, 613 |
| The limitation of actions for infringement of patents under Act 1870. £ 55, commences to run from the expiration of the original term, though the patent has been renewed | 603 |
| In the case of an extension of a patent, the statute of limitations applies to the entire period made by the original and extension as one integral term. (Rev. St. £ 4927.) | 613 |
| Where a bank has suspended payment, end its bills have ceased to circulate as money, the statutes apply to them as to other contracts | 286 |
| Though the court may think the legislature would have excepted a case out of a statute of limitations had it been foreseen, the court cannot except it | 292 |
| In an action for fraud and deceit in a sale, it is a good reply to a plea of the statute of limitations that there was a fraudulent concealment of the deceit until within six years | 1303 |
| LIS PENDENS. | |
| In the case of a suit in relation to real estate, pending in the federal court in Virginia, the lis pendens need not be recorded, as required by Code Va. 1873, c. 182, £ 5, to render a purchase invalid as against plaintiff | 96 |
| LOTTERIES. | |
| The corporation of Washington, D. C., held not liable to the holder of a part of the ticket for any part of the prize drawn by the ticket | 1162 |
| MALICIOUS PROSECUTION. | |
| Under the general issue, defendant may show probable cause for the prosecution | 1224 |
| MANDAMUS. | |
| Construction of Rev. Code Iowa, c. 153, in relation to the “action of mandamus” | 16 |
| A mandamus will not lie to the executive officers to compel the reinstatement of a person to his rank and position in the army register | 654 |
| Mandamus is the proper remedy where the federal circuit court refuses to entertain jurisdiction by quashing the service of the original process | 724 |
| MARINE INSURANCE. | |
| Where no cargo was taken in, and the voyage insured was not commenced, there is no contract, and the insured may recover back the premium paid | 874 |
| Where the vessel was not seaworthy when the risk insured commenced, the insured may recover back the premium paid | 874 |
| If in a policy “at and from.” the assured unreasonably delay to commence the, risk or the voyage, the underwriter is discharged | 920 |
| Fraud in obtaining insurance is a good defense to an action for a return of the premium | 770 |
| Prior insurance to the full value of vessel and cargo exonerates the insurer in a subsequent policy, under the usual clause as to prior insurance, though the prior policies are subsequently canceled before the risk is commenced | 920 |
| A general usage in relation to the settlement of average losses known to the parties is binding as part of the contract | 328 |
| A factor has an insurable interest in goods on which he has a lien for advances | 28 1363 |
| By a policy on vessel and cargo, a person having a lien for advances or a special ownership and possession may protect his interest in the vessel and cargo to the extent of his advances and lien | 920 |
| A surety for the payment of value of cargo in case of its condemnation, having possession of the same for his indemnity, has an insurable interest, the particular circumstances of which he need not communicate to the insurer | 28 |
| The warranty of neutrality implies that the property is neutral in fact, and shall be so documented as to prove its neutrality, which shall not be compromised by any act of the insured or his agents | 768 |
| The insurance is forfeited where the risk is varied or increased by conduct inconsistent with the duties of neutrality | 768 |
| A policy, made out for a certain person “or whom it may concern,” without any warranty or representation of national character, will cover the interest of any person who has authorized the insurance | 920 |
| Construction of policy “at and from” a certain port, as to the time when it attaches | 920 |
| Under a policy covering “perils of the sea,” the insured may recover damages paid by its vessel to another in consequence of a collision at sea caused by the negligence of the insured vessel | 1290 |
| Such policy covers also costs and expenses incurred in a suit brought to recover such damages, as well as counsel fees paid beyond taxable cost | 1290 |
| In ascertaining whether the loss amounts to 5 per cent., a deduction from the costs of repairs of one-third new for old must be made | 328 |
| A partial loss of an entire cargo may be converted into a technical total loss; otherwise, where a distinct portion of the cargo is lost | 1093 |
| On the restitution to the original owners of property which had been previously delivered to a surety for payment of its value in case of condemnation, the surety, who has insured the same, is at liberty to abandon | 28 |
| An abandonment once made is considered as continuing, notwithstanding a refusal to accept it, where it is not withdrawn | 432 |
| Where an abandonment is accepted, the master becomes the agent of the insurers from the time of the loss, and a sale by him will be considered as on their account | 432 |
| Insurers who have paid a loss arising from a collision may maintain an action therefor against the vessel in fault | 219 |
| MARITIME LIENS. | |
| See, also, “Admiralty”; “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Demurrage”; “Salvage”; “Seamen”; “Shipping.” | |
| The right to a lien. | |
| A shipping agent has no lien for expenses of fitting out and notarial fees at the home port | 941 |
| A part owner and general agent and superintendent of a line of boats has no lien for materials, but must be regarded as having given credit to the company | 174 |
| Under the maritime law, persons furnishing material or labor for the building or repair of a vessel have a lien, unless the same is expressly waived by the contract | 185 |
| The owners of a vessel, who accept the insurance on it and the net proceeds of a sale by the master, are estopped, as against persons who furnished advances to the purchasers on the credit of the vessel, to set up invalidity of the sale | 446 |
| Advances made in a foreign port for repairs and supplies to a vessel, at the request of purchasers from the master, held made on the credit of the vessel | 447 |
| Under the general maritime law, a lien for materials furnished exists against foreign ships and those of other states of the Union, which may be enforced in admiralty independently of any bottomry bond | 484 |
| No implied lien is created by the general maritime law where the owner himself is present, and makes the contract | 484 |
| Supplies sold to a master in a foreign port are presumed to be sold on the credit of the vessel | 174 |
| The place at which the ship's husband spends two-thirds of his time, and transacts his business, is the proper place for enrolling and licensing the vessel, though he has a legal domicile in another district | 185 |
| A lien arises for supplies furnished on the credit of a vessel in a foreign port on the authority of the master, appointed by a purchaser from a former master on a sale made in fraud of the rights of the real owner, where the creditor has no notice of circumstances to raise suspicion | 448 |
| There is no lien, under the maritime law, for advances for the purchase of a vessel sold by her master in a foreign port | 447 |
| Commissions on advances made oh the credit of a vessel in a foreign port for necessary supplies and repairs, when agreed on or shown to be customary in the trade, are proper items of allowance | 447 |
| Supplies furnished in Maine by a material man in New York to a vessel belonging in New York are foreign supplies, and give rise to a privilege | 458 |
| The ship's agent in such a case may have a lien | 458 |
| A ship chandler in one state, in which the purchaser of a vessel resided, who furnishes materials to her builders in another, without knowledge of any interest or possession of the purchaser, where the title had not passed out of the builders, may have a lien | 472 |
| A purchaser of supplies necessary to a foreign vessel can assert no lien therefor, unless he prove that they could not have been obtained without such lien upon the credit of the owner | 472 |
| Jersey City is foreign to New York City in the sense of the law governing supplies to ships | 458 |
| There is no lien on a vessel for advances made on a draft drawn by the agent for underwriters for her repairs while in the hands of the underwriters, to whom she was abandoned | 908 |
| A lien arises, without an express agreement therefor, where a chain and anchor are furnished by another vessel in a foreign port, in which the owner's credit is not good | 911 |
| The master has authority to bind the owners for necessary repairs and supplies in the port of her registry, at which the owner does not reside, and to whom there is no ready access | 752 |
| In the case of a vessel built at one place for parties resident in another, the former place is her home port until after her delivery and her first voyage | 847 |
| No lien arises for painting a vessel while in the custody of the ship builder, before her completion | 847 |
| Priority and enforcement. | |
| Maritime liens take precedence in the order of the arrest of the res, and not pro rata or in the order of debts incurred | 742, 744, 746 1364 |
| Exceptions to this rule are bottomry bonds and seamen's wages | 744 |
| Advances made by a mortgagee to subsisting lien holders at the time of taking possession under the mortgage should be paid in the order in which the liens them selves would have been paid | 174 |
| Maritime liens have priority over mortgages without reference to the time when they accrued. (Overruling 742, 744.) | 174, 746. 747 |
| Material men, having liens by local laws, have priority over mortgagees in the distribution of the surplus | 174 |
| A lien for supplies furnished to a vessel founded upon a state statute, and not of a strictly maritime character, will not take priority over a prior recorded mortgage | 798 |
| A claim for the balance of the purchase price of a vessel has priority over a claim for supplies in the home port, but the latter will take precedence over a claim for advances subsequently made by the seller to fit the vessel for sea | 215 |
| A lien arising for damages suffered by a collision is paramount to all prior liens, including those for wages due | 19 |
| The surplus proceeds are subject, as against the owner, to the master's claim for wages and disbursements on account of the vessel up to the time of her seizure, but not after such time | 404 |
| The lien of a material man is assignable, and, where the assignment is absolute, the assignee should proceed in admiralty in his own name | 458 |
| An attachment proceeding in the state court, not followed by a decree, does not give the attaching creditor any priority over a creditor subsequently filing a libel in the admiralty court | 710 |
| No difference will be made in the enforcement of maritime liens between those created by state statute and those given by the general maritime law | 747 |
| In the absence of the owner, a mortgagee may be permitted to appear as claimant | 1048 |
| Waiver: Discharge: Extinguishment. | |
| The lien is not waived by charging the materials against the builder of a vessel without naming the vessel | 294 |
| The acceptance of a note by the creditor does not waive the lien where it is not received in payment | 102 |
| The lien is not discharged by taking the note of an agent of the vessel, unless so intended by both parties | 458 |
| The general agent of a ship at her home port is not entitled to be subrogated to the lien of seamen whose wages he has paid in the regular course of his agency | 458 |
| The assignment of a note given to the creditor extinguishes the lien, and it is not revived where the note is subsequently taken up by the creditor | 102 |
| A lien is not lost by two years' delay where the vessel has not been within the United States during such time | 911 |
| A libel will not lie in admiralty after the lapse of six years where the vessel has been within reach of the process of the court, to the knowledge of libelants, for a reasonable time | 432 |
| Liens under state laws. | |
| There must be an appropriation, express or implied, to the vessel, of the labor or materials, at the time of the contract or of its execution, to give a lien under Rev. St. Me. c. 125. £ 35 | 1107 |
| To give a lien under 2 Rev. St. N. Y. p. 493, £ 1, it is not necessary that each item should amount to $50, but only that the whole account should aggregate that sum | 215 |
| Putting into a port on account of a fog and to get provisions is an “arrival” into the port, under a local law providing that a lien given thereby shall cease in such case. (Reversing 294.) | 292 |
| A lien under a statute providing against extension of time is not defeated by an agreement to take payment in a promissory note, if no note has, in fact, been given or tendered | 967 |
| A lien given by the local law for services of a person as keeper on board of a vessel while secured to a wharf is not enforceable in admiralty | 37 |
| The amendment of 1871 to rule 12 did not abrogate the distinction between a domestic contract and a maritime lien but relates only to the process | 1048 |
| A libel in admiralty may be maintained for repairs and supplies furnished to a domestic vessel at the home port. (Rule 12. amended 1871.) | 1048 |
| A lien given by the state law for supplies furnished by material men in the home port will be enforced in admiralty, but the admiralty court is not bound by the priority given it | 744 |
| MARSHAL. | |
| Fees of marshals in proceedings relating to slaves | 1 |
| The payment of money under a decree without an execution having been issued in a suit in rem in which a stipulation for value was given is a settlement of the claim by the parties, within Act Feb. 6, 1853, entitling the marshal to commissions | 90 |
| To an action on a marshal's bond for taking insufficient security on a replevin bond, a plea that a levy was made on goods and chattels, lands and tenements, sufficient to satisfy the judgment, is good in bar | 974 |
| MARSHALING ASSETS. | |
| In the case of liens on the same property for different debts, where one also has a lien on other property, equity will direct such property to be first sold before that which is common to both liens | 50 |
| Martial Law. | |
| See “War.” | |
| MECHANICS' LIENS. | |
| The mechanic's lien exists, under the Nevada mechanic's lien law of 1861, from the time the labor is begun, and not from the time it is finished, or from the filing of the account | 124 |
| Construction of lien laws of Nevada of 1861, 1867, and 1871 | 124 |
| MILITIA. | |
| A sailmaker in the government navy yard, appointed by a warrant of the secretary of the navy, is an officer of the United States, and exempt for militia duty | 358 |
| Militia fines and enforcement thereof in the District of Columbia | 114 |
| MINES. | |
| Under the act of 1870 a placer claim was limited to 160 acres, and under the act of 1872 to 20 acres | 205 |
| In the case of adjacent locations owned by one claimant, separate applications, separate statutory steps, and separate patents were required for each | *205 *207 1365 |
| MORTGAGES. | |
| See, also, “Bankruptcy.” | |
| A mortgagee of a wife's property to secure the husband's debt, who enters and takes the rents without her consent, is liable to her for use and occupation | 1068 |
| A covenant in a mortgage to keep the mortgaged premises insured for the benefit of the mortgagee, where the mortgage is recorded, runs with the land, and is notice to all persons | 351 |
| Lands subject to a mortgage may be sold on execution against the owner of the equitable title | 60 |
| A mortgagee may pay off prior incumbrancers, and be substituted to their rights | 50 |
| An entry to sell and pay the mortgage debt held not a strict foreclosure, and no defense to a suit on the bond | 149 |
| Construction of the statute of Kansas in relation to the foreclosure of mortgages | 306 |
| A second mortgagee, not made a party to a foreclosure suit brought by the first mortgagee, is not affected thereby, and a sale under the decree will not be enjoined at his instance | 929 |
| Where a part of the tract has been sold by a prior mortgagee or the mortgagor has no title thereto, it may be omitted in the bill to foreclose | 974 |
| On foreclosure, the title and possession remain in the mortgagor until a valid conveyance is made by the officer authorized to make the sale | 1063 |
| In the case of a creditor bank whose charter had expired 16 years before, a trustee in a deed given to secure the debt was ordered to convey to the heirs of the debtor | 539 |
| Where the mortgagee, before the foreclosure took affect, agreed to receive the money from the mortgagor, and subsequently transferred his rights to the person who advanced the money, held not a discharge of the mortgage, but a transfer of the land | 1164 |
| MUNICIPAL CORPORATIONS. | |
| See, also, “Railroad Companies.” | |
| Title to the streets and wharves in the city of Detroit, and the jurisdiction and powers of the city authorities in relation thereto | 23 |
| Municipal warrants have not the quality of negotiable paper, and are subject, in the hands of a bona fide transferee, to all equities existing between the original parties | 731 |
| Where a city had authority to issue bonds, they are binding in the hands of bona fide purchasers, though the conditions precedent to their issue were not observed | 221 |
| Sufficiency of complaint in an action for an injury caused by an excavation in a street | 1089 |
| NAME. | |
| Misnomer is no ground of arrest of judgment after plea in bar, but the proceedings are subject to amendment | 893 |
| NAVIGABLE WATERS. | |
| In the case of a highway adjoining a navigable stream, the right of passage from one to the other must be free to all | 23 |
| The proviso in an act authorizing the improvement of a river that certain mill dams shall not be altered, nor the water running thereto diverted or obstructed, held not a grant of the water, but a mere license, revocable at pleasure | 6 |
| Harbor fees, under Act Va. Jan. 18, 1798 | 1313 |
| NEW TRIAL. | |
| A new trial will be granted where a writ ten instrument was admitted in evidence on the erroneous assumption that it was an original paper | 547 |
| A new trial will not be granted for an error of the court in permitting illegal testimony to go to the jury, where no objection was made at the time | 29 |
| Where the verdict is excessive, plaintiff may be allowed to remit the excess, instead of submitting to a new trial | 57 |
| OFFICE AND OFFICER. | |
| Where a session of congress passes without the filling of an office which was created and took effect during a previous session of the senate, the president cannot make a valid appointment during a recess of the senate | 672 |
| A person appointed to an office without authority, and who never performed an official duty as such officer, is not an officer de jure or de facto | 672 |
| Public officers, when acting under the scope of their duty, must be presumed to have fulfilled every requisite which the discharge of their duty demands | 40 |
| PARTIES. | |
| A corporation which has conveyed its property in trust to secure a debt is a necessary party to a suit to vindicate its rights in respect to such property as against a wrongdoer | 306 |
| In a suit to enforce a trust, where one of the joint equitable owners with plaintiff is out of the jurisdiction, and will not join in the suit, the court has power to proceed in his absence | 888 |
| A person interested in the thing in controversy, not made a party to the bill, may, on his motion or petition, be made a party by amendment | 844 |
| A complainant cannot be compelled to add new parties to his bill if he chooses to take the responsibility of their not being made parties | 929 |
| An objection of want of parties can be taken only by plea or answer, and the name or description of the parties who should be brought in must be specified | 1018 |
| PARTNERSHIP. | |
| See, also, “Bankruptcy.” | |
| An association of pilots who placed their earnings in a common fund, out of which expenses are paid and profits declared, is a partnership, liable for the misfeasance or negligence of one of such pilots while employed in piloting a vessel | 417 |
| A transfer by one partner of his interest in the firm to his copartner, if made in good faith, is binding on the firm creditors | 1311 |
| The crediting to each member of his interest in the firm on taking in a new partner will not affect the right of the firm creditors | 1153 |
| The continuing partner, who agrees to appropriate the goods on hand to the payment of the debts of the firm, becomes a trustee for the retiring partner and the creditors | 974 |
| An assignment of all interest in a firm to a copartner, stating that the firm is dissolved solved except so far as is necessary to continue the same for the final settlement of the business, does not dissolve the firm | 1256 1366 |
| PATENTS. | |
| Patentability. | |
| One prior use before plaintiffs invention will defeat his patent | 600 |
| A prior use is not necessary to destroy a patent to a subsequent inventor, where the construction of the thing itself shows that it was within the principle of the patented invention | 600 |
| A substantially new combination of old materials is patentable | 110 |
| A combination containing the same elements as those of a prior combination is patentable if substantially different, and accomplishing new and useful results | 348 |
| A mere aggregation of old devices, in which the parts have no new operation and produce no result which is due to the combination itself, is not patentable | 512 |
| A machine possesses patentable merit where, taken as a whole in its construction and operation, it is an advance upon the state of the art to which it appertains, furnishing a better method of performing a useful function than was before available | 1117 |
| A patent for the separation of a pavement into sections, while it is being formed in the place where it is to be used, is not anticipated by a pavement made of blocks of cement made elsewhere, and laid like bricks or flags | 696 |
| Who may obtain patent. | |
| Priority of conception, followed by a prior patent, gives priority of right | 605 |
| The abandonment of an improvement once made and used will not entitle a subsequent inventor to a patent | 597 |
| Prior public use or sale. | |
| Mere public use and sale of the invention before application for a patent, where with out the consent and allowance of the inventor, do not invalidate the patent | 78 |
| The public use or sale of an invention, without the knowledge or consent of the inventor, after the application for a patent, and before the grant, will not deprive him of the right to a patent | 110 |
| The use in public for more than two years of a machine substantially the same as that afterwards patented cannot be alleged to be experimental | 321 |
| The sale of a single device, embodying the invention, eight years before applying for a patent, will invalidate the same | 716 |
| A sale of a perfected machine on trial, with the rip-ht to return or keep it, where made more than two years before the application, will bar the right to a patent | 1011 |
| Prior description. | |
| The description of an invention in a public work will bar the right to a patent, though it has not been put in use | 1006 |
| Abandonment: Laches. | |
| It is only where the invention is intentionally abandoned or neglected, or the par ties show by their acts that they have not done all that they can do, that protection will be refused the inventor | 597 |
| Mere lapse of time before an inventor applies for a patent for his invention does not per se constitute an abandonment | 78 |
| A delay of over four years in filing an application, during which time another has invented the same thing and applied for a patent, will bar the first inventor's right | 551 |
| Abandonment may take place within the two years prior to the application for a patent | 321 |
| Application and issue: Interference. | |
| A patent of an improvement to prevent loss of life by the explosion of powder mills is properly refused where it appears that it would not have the effect designed | 320 |
| The commissioner cannot require evidence that they combination will produce the result claimed, where the application conforms to the requirements of the office, and the invention does not fall within any of the conditions mentioned in the law as a sufficient ground for rejection | 1016 |
| Appeals front commissioner's decision. | |
| On an application for a reissue and division of a patent, under Act March 3, 1837, the divisions for the purposes of an appeal are to be considered as a whole, and not as separate cases | 1026 |
| The court is limited to the papers and evidence which were before the commissioner, and has no power either to receive proof of experts, or to send the case back to take such proofs | 320 |
| The court on appeal has ample power to allow an examiner to be interrogated on the subject of the invention for which a patent is claimed | 1016 |
| The date of an invention may be fixed by reference to another circumstance, the date of which latter is sworn to by another witness | 1298 |
| Validity. | |
| The patentee need not be able to state the scientific reasons for the operation of the process, or the production of the result patented. It is sufficient if his description will enable one skilled in the art to practice the process or accomplish the result | 210 |
| Extent of claim. | |
| Claims too broad upon their face may be restricted by the words “substantially as described,” so as to render the patent valid | 1121 |
| The language of the patent will be liberally construed, and, by taking the whole together, that interpretation will be adopted which will give the fullest effect to the nature and extent of the claim made by the inventor | 110 |
| The inventor of a new compound, wholly unknown before, is not limited to the use always of the same precise ingredients in making that compound | 110 |
| Construction of a claim of “the combination of a lock and latch,” where the only in vention consisted in making the latch bolt reversible | 78 |
| Reissue: Disclaimer. | |
| On a surrender and reissue, the patentee has a right to a patent for a division or separation of each essential part in combination with the other parts of the same invention in which it was connected | 1026 |
| The validity of the reissue is to be deter mined by comparing the terms and import of the original and reissued letters, and a consideration of the patent office drawings and model | 1117 |
| A reissue cannot be sustained by extrinsic proof that the patentee was the invent or of all that is claimed in it, if such claim was not shown or suggested in the original specification, drawings, or model | 512 |
| There may be a disclaimer of something which was introduced into the reissued patent, which did not exist in the original patent | 696 |
| The patentee may eliminate or withdraw in the same writing with the disclaimer the parts of the body of the specification on which the disclaimed claim, or part of a claim, is founded | 696 |
| The remedial provisions of Act July 8, 1870, £ 111, are limited to suits and proceedings commenced after its passage | 512 1367 |
| Where a proper disclaimer is entered during pendency of a suit, plaintiff may re cover in respect of what is not disclaimed, where there has been no unreasonable neglect or delay to enter the disclaimer; but the recovery is to be without costs | 696 |
| Assignment. | |
| An assignment which does not convey the entire or unqualified monopoly which the patentee holds in the territory specified, or an undivided interest in the entire monopoly, is a mere license | 362 |
| Infringement—What constitutes. | |
| A change of form merely, or of mechanical structure, which produces no new or materially improved results, is an infringement | 501 |
| A patent for a combination of old de vices is infringed by a combination which merely substitutes a single device, which at the date of the patent was a well known equivalent | 348 |
| A device which performs, both mechanically and practically in defendant's combination, the same office that is performed in plaintiffs patent, is an equivalent there for, in the combination, though it also per forms an additional office | 512 |
| A patent for a combination of old devices is infringed by its use to accomplish some thing more or better, which could not be effected without its aid | 600 |
| A sale of the materials of a patented machine on an execution against the owner will not subject the sheriff to an action for infringement | 554 |
| The manufacture of one of the elements of a patented combination, not proved to be made for use in connection with the other elements, is not an infringement of the patent | 593 |
| A patent for a concrete pavement laid in sections, claiming the interposition between the blocks of permanent material, held infringed by the temporary interposition of material while the pavement was in the process of formation | 690 |
| ——Remedy generally. | |
| Equity has jurisdiction of a bill by a patentee against an infringer which seeks merely a discovery and account of profits | 603 |
| Where the patentee exercises his monopoly by granting licenses indiscriminately, the measure of his damages is the price or value of the license; and an account of profits is not required, and the jurisdiction of equity need not be invoked | 321 |
| After the expiration of a patent, a federal court will not entertain jurisdiction of a suit for infringement under its general equity jurisdiction, where the bill, is not for an account or a discovery | 613 |
| A bill to recover profits, if it be not a bill for discovery, cannot be entertained as a bill for an account, in order to confer equitable jurisdiction | 613 |
| Where there is no question of fiduciary property in a patent, the infringer cannot be treated as a trustee de son tort, and the court cannot upon that ground entertain equitable jurisdiction | 613 |
| A covenant, founded on a valuable consideration, not to further infringe a patent, will be enforced by injunction | 501 |
| Where the patentee sues in equity for an infringement, he need not first establish his legal right in a court at law and by a verdict of a jury | 321 |
| ——Preliminary injunction. | |
| The public acquiescence in an inventor's claim of right for two years before his application is entitled to weight in considering his right to a preliminary injunction | 501 |
| Where sufficient possession is made out, a doubt as to the validity of the patent will not necessarily prevent an injunction. The court will consider the comparative inconvenience or loss to be occasioned by granting or withholding it | 505 |
| What is a sufficient public acquiescence in the exclusive right of a patentee to make a prima facie title without a judgment at law | 505 |
| An unsuccessful attempt to interrupt the patentee's possession strengthens the presumption in his favor | 505 |
| An injunction will not issue where defendant is manufacturing under letters patent, unless the court can see from an inspection alone that he is infringing | 511 |
| The ruling of another federal court on a motion is not a sufficient decision upon the merits to warrant an injunction where infringement is positively denied | 511 |
| The patent never having been the subject of litigation, complainant was ordered to file an injunction bond before the issue of the writ | 1245 |
| On denying an application, defendant was required to be ready to try a pending action at law at the next term | 1085 |
| Denied where plaintiff had twice failed to establish his right in suits at law, and there was no public acquiescence | 1085 |
| Denied where defendant has letters patent for the same invention as plaintiff's, which are prima facia valid | 495 |
| ——Procedure. | |
| Where the contract is for the purchase of a portion of a patent right, the legal right in the monopoly remains in the patentee, and he alone can sue for an infringement | 362 |
| In such case the licensee need not be joined in the action | 362 |
| Where both parties assert rights under different patents with identical claims, defendant cannot set up that the claim in plaintiff's patent does not claim patentable subject-matter | 78 |
| A rehearing will be ordered where it appears doubtful whether a decree adverse to the patent could he sustained under the al legations in the answer, with leave to amend such answer | 718 |
| The question of abandonment, whether in regard to the time prior to two years before the application for the patent or to the time included in such two years, is a question of fact | 78 |
| ——Evidence. | |
| The patent is prima facia evidence of novelty and utility, and that the patentee was the first inventor | 348, 1085 |
| Positive testimony of witnesses as to the existence of prior mechanism will out weigh merely negative proof | 600 |
| ——Injunction, and its violation. | |
| An injunction will not be granted where the patentee exercises his monopoly by granting licenses indiscriminately | 321 |
| Circumstances stated which govern the amount of the fine to be imposed for a contempt of court in violating an injunction | 690 |
| ——Decree, and its effect. | |
| Where no infringement is found, the court will not pass upon the validity of the patent | 593 |
| ——Accounting: Damages. | |
| The rule of damages is the profits which have been derived by defendants from the use of plaintiffs machine over any other mode which defendants had a right to adopt | 1085 |
| Where no profits are proved to have been made by defendant, complainant can not recover as damages the profits which it would have made on the articles sold by defendant | 212 1368 |
| Reduction of prices, and consequent loss of profits, caused by the competition of the infringer, is a proper ground for awarding damages | 507 |
| The use of plaintiff's patent restored the salable character of the article defendant made, and saved defendant from loss. Held, that the money value of such advantage could be recovered as compensation, though there were no profits | 509 |
| The amount paid by defendant for a license to use a patented device, which he afterwards substituted for plaintiffs de vice. held to be the proper measure of the value of the invention to defendant | 509 |
| The owner of a patent is entitled to re cover the damages from a reduction of prices caused by the competition of the infringer, although he is accountable to a copartner for a part of them | 507 |
| A court of equity cannot inflict exemplary or punitive damages where defendant has acted wantonly or vexatiously | 321 |
| Where a patent for concrete payment claimed the separation of the pavement in sections, and, on an account of profits for infringement, there was no proof of a license fee or the Value of the patented improvement, held, that the master should have reported no profits | 693 |
| The damages will be trebled where the sum awarded by the verdict is inadequate to recompense an inventor for a long and expensive litigation, but not in the case of a mere assignee of the patent who has purchased on speculation | 772 |
| Various particular inventions and patents. | |
| Boilers. Reissue No. 4467, for improvement in boilers for ranges, stoves, etc., held invalid | 617 |
| Brakes. No. 9109, for improvement iii railroad car brakes, held valid and infringed | 597, 600 |
| Buckles. Reissue No. 7129 (original No. 61,628), for improvement, held valid and infringed | 748 |
| Corset. No. 143,356, for corset clasp and cloth attachment, held invalid for want of novelty | 1040 |
| Cultivators. No. 22,859 (reissued No. 2380), for improvement in cultivators, held void for want of novelty | 605 |
| Ejectors. No. 92,718, for improvement, held not infringed | 616 |
| Enameled ware. Reissue No. 7,779 (original No. 177,953), for improvement in the manufacture of enameled iron ware, held valid and infringed | 210 |
| Harvester. Reissues Nos. 72, 1,682, and 1,683, for improvements, held valid and in fringed | 1117; contra, *1121 |
| Lamps. Reissue No. 7511 (original No. 182,973), for a combination of a transparent shade holder and shade to perform the functions of a chimney, held valid. | 713; contra, 716 |
| Lanterns. Reissue No. 325 (original No. 8154), for improvement, held invalid for want of invention | 388 |
| Latches. No. 72,946, for improvements in reversible locks and latches, held valid and infringed | 78, 84 |
| Hatches. No 68, for improvements in the mode of manufacturing friction matches, construed broadly, and held infringed | 110 |
| Metals. No. 35,842 (reissued No. 1,651), for an apparatus for recovering gold and silver from waste solutions, held invalid | 1205 |
| Moldings. Reissue No. 243 (original No. 5,575), for improvement in machinery for making, construed | 1085 |
| Organs. Reissue No. 3,665, for tremolo attachment, construed, and held not in fringed | 593 |
| Parer. No. 10,078, for improvement in apple-paring machine, construed | 495 |
| Pavements. Reissue No. 4364 (original No. 105,599), for improved concrete pavement, held valid and infringed | 690 |
| Powders. Reissue No. 2769 (original No. 41,097), for improvement in putting up powders, held void for want of novelty | 561 |
| Sewing machines. No. 53,927, for an improvement for stitching the sweat cloths to hats, construed, and held valid | 360, 362 |
| Wheels. No. 17,520 (reissued No. 4116), and No. 61,900 (reissued No. 5366), for improved carriage wheels, construed in relation to each other, and validity determined | 512. 520 |
| Whip sockets. Reissue No. 5400 (original No. 70,627), for improvement in whip sockets for carriages, held valid and infringed | 932, 933 |
| Winnowers. Reissue No. 306 (original No: 6,545), for improvement, construed, and held valid only in part | 321 |
| PAYMENT. | |
| See, also, “Compromise”; “Internal Revenue.” | |
| Inclosing money in a letter deposited in a post office, for the purpose of paying a debt, held a payment, under the circumstances, though it never reached the creditor | 1047 |
| A demand of payment in a certain kind of money will not excuse the debtor from proving a lawful tender | 927 |
| Payments will be applied first to the interest of the debt | 51 |
| The question whether a bill of exchange drawn upon a London firm, and payable in Paris, is to be governed in respect to the medium of payment by the French law, held to be a question for the jury | 927 |
| A payment of internal revenue taxes, under protest, is not a voluntary payment, where both the collector and the party paying understand at the time that payment must be made, or the law will be en forced | 1139 |
| PILOTS. | |
| See, also, “Salvage.” | |
| A licensed pilot, who runs his vessel on a shoal in fair weather and open daylight, is liable for resulting damages, and cannot set up the failure of the vessel to have a hawser, with which she might have been warped off without injury | 417 |
| The tender of services by a Hell Gate pilot as far east as Block Island is not legal, and a refusal and subsequent settlement with him will not prevent a pilot, who tendered his services off Oak Neck, from recovering half pilotage, where they were re fused | 319 |
| PLEADING AT LAW. | |
| In trover by husband and wife for a con version of the wife's goods before marriage, the declaration must conclude ad damna ipsorum | 1059 |
| On demurrer to a rejoinder, a defect in the plea will not be held to have been cured by the reply | 149 |
| A plea of the statute of limitations, filed after the plea day, without leave of court, will be stricken out on motion | 842 |
| A general plea of nonassumpsit to several counts waives the objection that no account was exhibited with the declaration, as alleged therein | 1057 1369 |
| An amendment by changing the action from case to covenant will not be granted | 723 |
| PLEADING EST ADMIRALTY. | |
| New facts must be presented by an amendment to the libel or answer, and not by way of replication and rejoinder | 432 |
| An amendment of the libel, as to the amount of damages claimed in a collision case, allowed, to remove a formal difficulty to the way of a just award | 164 |
| The giving of assistance in arresting the goods, and subsequently obtaining the same on stipulation, is a waiver of the objection that the libel was filed too soon | 227 |
| A plea to the merits waives any irregularity existing on account of filing the libel at a time when the vessel is not within the district | 217 |
| Proofs of facts not put in contestation by the pleadings, and allegations of facts not established by proofs, will both be rejected | 432 |
| The rule in equity requiring two witnesses, or one witness and strong corroborative circumstances, to overcome the denial in the answer, does not obtain in admiralty | 1292 |
| PLEADING IN EQUITY. | |
| The rules governing the federal court in determining whether a bill is original and independent or ancillary and auxiliary in the matter already before the court | 667 |
| Where an answer under oath is false in material particulars, as to which respondent could have made no mistake, it may be wholly disregarded | 638 |
| An answer to a bill alleging an agreement of compromise, which goes into the history of the dispute compromised, is not responsive | 501 |
| A defendant who sets up the bar of the statute of limitations is excused from further answer to such parts of the bill as are covered by it | 286 |
| An answer responsive to the bill, and denying its allegations, must be taken to be true, unless contradicted by two positive witnesses, or by one positive witness and strong corroborating circumstances | 926 |
| An appearance and answer by defendant waives the objection that the bill contains no prayer for process, or that defendant was not served with process | 1018 |
| In a suit by a nonresident against citizens of the state to have his title quieted as to one, and for a partition against the other, the former defendant may file a cross bill to have the title of both the other par ties declared void | 667 |
| Where defendant neglects for a long time to take advantage of plaintiffs failure to reply to a plea or set it down for a hearing, *he court will give plaintiff further time | 604 |
| POWERS. | |
| A court of equity will interfere in favor of the grantee in a deed to aid the defective execution of a valid power where there is no opposing countervailing equity | 1018 |
| PRACTICE AT LAW. | |
| The court will not compel plaintiff to pro duce a charter party of which defendant has counterpart | 292 |
| Where the clerk omits to enter an appearance, and the cause is discontinued, it may be reinstated at the next term | 1266 |
| PRACTICE IN ADMIRALTY. | |
| A rule of practice established by virtue of an act of congress has the force of a statute | 853 |
| Where several persons have causes of action of a like nature, involving one or more questions common to all against a vessel, all may join in one libel | 266 |
| No one can intervene and defend in a suit in rem unless it appear by the answer and claim that he has a lien of proprietary interest in the thing seized | 102 |
| Where, on a libel for wages, no one appears for the vessel, the amount claimed must be legally ascertained before the vessel will be sold | 326 |
| A person who declined to appear as claimant in suits to enforce maritime liens has no standing in court to claim a distribution of the proceeds of sale on a decree therein | 747 |
| When a plea which sets up no matter of defense is overruled, it is in the discretion of the court to allow an answer to be filed | 909 |
| Upon a motion to vacate an order pro confesso, and for leave to answer, respondent must satisfactorily account for his laches, and exhibit by answer or affidavit a meritorious defense | 853 |
| Sufficiency of excuse in the case of a foreign respondent and of affidavit of defense | 853 |
| Where it appears on the hearing in court that the main question is one as to an ac count, the court may properly refer the case to a commissioner | 1190 |
| A vessel discharged on stipulation for value or payment of the amount claimed can not be again seized for the same cause of action, even by consent of the parties | 1075 |
| Where, in the case of an appeal in admiralty transferred to another circuit a commissioner in the former circuit certifies to the giving of a stipulation by respondents with sureties, but such stipulation is not filed in court, a summary judgment cannot be entered against the sureties on the affirmance of the decree | 573 |
| It is no impeachment of a decree of sale of a vessel that the claim on which the libel was brought was purchased pending the suit | 939 |
| A decree against a vessel will not be opened, and the sale under it set aside, where the ship-owners, with full notice of the proceedings, did not make application until after they were all perfected | 939 |
| PRACTICE EST EQUITY. | |
| The bill will not be dismissed for want of prosecution for the failure of plaintiff to take testimony within the three months after issue formed, as allowed by rule 90 | 491 |
| Respondent, who may be in possession or control of books referred to generally in the answer, may be ordered to produce them before a master or in court | 53 |
| Such order will not be denied on presentation of an affidavit denying possession, but such affidavit may be sufficient before the master | 53 |
| A subpoena duces tecum will be given for any witness to bring in the books who is supposed to have them | 53 |
| The rule in Virginia that a decree taken by default in consequence of the neglect of counsel for defendant will not be opened on motion for a rehearing is observed in the federal circuit court in the state | 834 1370 |
| PRINCIPAL AND AGENT. | |
| See, also, “Factors and Brokers.” | |
| An arrangement by a broker with a correspondent in another place to execute his orders, where the account was kept only with such correspondent, but the purchaser or seller was known in each transaction, held to make such correspondent an agent of the broker | 646 |
| The principal must suffer the consequences of the neglect of his agent to disclose the special nature of the contract, under which he is acting, to those with whom he deals | 646 |
| An agent to whom a vessel is delivered by the builders, without notice of his agency, does not acquire a good title as against his principal | 883 |
| Where an agent, employed to procure a vessel to be built in his own name, and to transfer the title to his employer, fraudulently transfers the title to a stranger, with notice, the transaction creates a trust cognizable in equity | 888 |
| PRIZE. | |
| Jurisdiction. | |
| The confiscations provided for by Act July 3, 1861, 8 6, and Act Aug. 6, 1861, can be carried into effect by the prize courts of the United States, as respects property captured at sea | 462 |
| Grounds of condemnation. | |
| Residence in an insurrectionary state determines the character of the property of the person | 248 |
| The character of a ship is determined by the residence of her owners, and not by the flag she carries | 389 |
| A person who puts himself in itinere to return to his native country is deemed to have assumed his native character | 180 |
| The prize courts look to the legal interest in the vessel, and will not recognize neutral equitable interests | 389 |
| Belligerent captors are discharged of liens or equities of neutral creditors resting upon the effects of an enemy seized at sea. Act July 13, 1861, and Act March 3, 1863, are inapplicable thereto | 248 |
| Cotton picked up at sea by a United States cruiser held properly proceeded against as prize where the circumstances showed that it had recently been abandon ed either by an enemy or a neutral engaged in breaking the blockade | 1100 |
| A naturalized citizen cannot lawfully bring away his property from an enemy country after knowledge of the war, with out the license of the government | 180 |
| Persons who are not citizens or residents of the enemy's country are entitled to a reasonable time to withdraw from their business connections therein, and convert their property into money, and carry it away, after the breaking out of hostilities. | 389, 471 |
| Property belonging to a neutral who is domiciled and carrying on trade at an enemy port is enemy property | 462 |
| A shipment made in an enemy's vessel from an enemy's country is presumed to belong to enemies, unless a distinct neutral character be impressed upon it | 389 |
| Cargo purchased with the proceeds of an outward cargo held to be the property of the consignees from the time it was laden on board and bills of lading executed there for | 248 |
| Where a shipment is made to partners, they will be held by the court to take in equal moieties, unless upon the original papers a different proportion appears | 389 |
| The property of a neutral engaged in the ordinary or extraordinary commerce of an enemy's country upon the same footing as native resident subjects, when employed in such trade, is subject to confiscation | 389 |
| The separate property of a neutral partner in a house of trade established in an enemy's country is not subject to confiscation; otherwise, as to property of the firm | 389 |
| A shipment made by such house to the partner domiciled in a neutral country is only liable as prize, where made on joint account | 389 |
| A shipment made by a person domiciled in the enemy's country to a house established in a neutral country, in which he is a partner, if made upon their joint account and risk, is not liable to condemnation | 389 |
| Where a partner in a neutral house is domiciled in the enemy's country, and engaged in its general commerce, for the benefit of his neutral house, his property is liable as prize | 389 |
| A sale of property during hostilities in an enemy port, by a person domiciled and trading there, to a neutral, will not prevent the property being subject to capture as prize | 462 |
| Under the treaties of 1794, 1814, and 1815, a British merchant, residing in a port of a seceding state during the war, has no immunity from the general principles of public law, applicable to resident neutral merchants | 462 |
| The fact that a vessel carries clearance papers issued by the enemy does not of it self constitute justifiable cause for her condemnation | 462 |
| The vessel of a loyal citizen employed in trade with the enemy or in favor of an insurrection is subject to capture and condemnation | 1167 |
| To constitute a blockade of a port, an adequate force must be stationed to render the entrance or departure of vessels into or from the port dangerous | 462 |
| A neutral vessel which endeavors, by false appearances, to cover the property of a belligerent from the lawful seizure of the enemy, is herself liable to seizure | 768 |
| Procedure. | |
| A libel in a prize case need contain no further averment than that the property seized is prize of war | 248 |
| A nominal agent cannot interpose claims for his principal who is within the jurisdiction of the court | 180 |
| The claim must be made by the owner if within the jurisdiction | 243 |
| The claimant must make his claim and affidavit without the assistance of the ship's papers | 389 |
| An averment that claimants were citizens of the United held a suppression of the fact that they were resident traders in the enemy's country | 248 |
| On further proof, the affidavits of the captors are admissible evidence without a release | 243 |
| Further proof is never allowed to a party who is guilty of fraud or of illegal con duct | 243 |
| The omission of the captors of a vessel to bring in the captured crew will not inure to defeat a capture by a government vessel | 1167 |
| In the absence of legal proof of actual capture in the ease of enemy property, a decree of condemnation was deferred to await its production, or an excuse therefor | 431 |
| An obstinate suppression of the ship's papers, etc., coupled with a voyage from an enemy country, is sufficient cause of condemnation | 180 |
| Intentional misrepresentation of the character and destination of the voyage of the captured vessel is sufficient cause of condemnation of vessel and cargo | 38 1371 |
| Cargo condemned on further proof for a violation of blockade by the vessel | 432 |
| Vessel and cargo condemned for an at tempt to violate the blockade on papers false as to her destination | 797 |
| Vessel and cargo condemned as enemy property | 430 |
| Vessel and cargo condemned for an at tempt to violate the blockade | 160 |
| Vessel and cargo condemned as enemy property, the claimants being residents of a seceding state | 248 |
| Vessel and cargo released, and restored to claimants | 461 |
| Where a claim is rejected, the claimant is liable to pay all expenses which have accrued in consequence of his claim | 243 |
| Prisoners and persons brought in with the prize for examination do not pass into the custody of the court, but their custody continues to be military in its character, and the duty of providing for their support devolves upon the government | 280 |
| The marshal is entitled to commissions on prize property removed from his district by consent of the parties to another district, and there sold | 402 |
| Fees allowed in prize causes | 243 |
| The charges of appraising and bonding prize property must be borne by the party who applies to have it bonded | 251 |
| Such appraiser is entitled to no allowance beyond the per diem allowance provided by statute or the standing rules of the court for that description of services | 251 |
| Prize officers. | |
| Of the appointment, duties, authority, and rights of prize agents | 182 |
| Sale and distribution, of proceeds. | |
| A vessel 12 miles distant, and unable to hear the guns of the capturing vessel, is not entitled to share in the prize | 167 |
| A vessel within signal distance, which was not in a situation to render any assistance, is not entitled to share in the distribution of a prize | 1045 |
| A commander of a privateer, authorized to award certain reserved shares among the most deserving in the cruise, cannot award a share to himself | 182 |
| Until a final adjustment of all claims arising from the capture, the prize court will entertain a supplemental suit for the distribution of prize proceeds | 182 |
| Where the proceeds have been paid to prize agents, the proper jurisdiction is the district court. Where they remain in the circuit court application may be originally made there | 182 |
| Wrongful capture. | |
| An officer of a public armed vessel of the United States who makes seizure of a neutral vessel on the high seas is liable for all consequential damages, unless he show probable cause for the seizure | 1181 |
| PUBLIC LANDS. | |
| See, also, “Grants.” | |
| The lands granted to the state of Wisconsin by Act June 3, 1856, to aid in the building of railroads, did not ipso facto revert to the United States by a failure to build the road within the prescribed period | 749 |
| The state has power to protect such lands from trespass, and may maintain replevin or trover for logs cut thereon by trespassers | 749 |
| Under Act July 1, 1862, granting lands to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean, there was a present grant, which attached to the particular sections upon the definite location of the road | 384 |
| Lands claimed at the time of such location, under alleged Mexican or Spanish grants, which were in fact fraudulent and void, and were afterwards so judicially declared, passed by such grant | 384 |
| A grant of alternate sections of land with in certain limits to aid in the construction of a railroad (Act July 25, 1866) held to attach on the filing of tie plat of survey of the line with the secretary of the interior and the withdrawal of the land from sale, etc., but not as to any land lying outside of the limit to make up a deficiency, until such deficiency had been ascertained | 108 |
| Intermediate the date of the treaty of Guadalupe Hidalgo and the admission of California into the Union, the title to property below low-water mark in the Bay of San Francisco was in the United States, and a deed thereof unauthorized by congress is a mere nullity | *903 |
| A title made in the name of a deceased person, under the act of 1836, inures to the benefit of his heirs | 655 |
| Rights of pre-emption cannot be acquired to lands while the Indian title to occupancy still remains | 40 |
| The provision of the homestead act that no lands acquired thereunder shall, in any event, become liable to any debt contracted prior to the issuing of the patent there for, is valid and binding on the states | 1133 |
| A patent to a married settler under the Oregon donation act, and to his wife, by name, cannot be contradicted in an action at law by showing that the true wife of such settler was another person, by a different name | 1171 |
| If the call in an entry be for land to lie on a creek, the survey must be made so as to give an equal quantity of land on each side of it | 1259 |
| If the calls in an entry be indefinite, the survey must be made in an oblong or a square | 1259 |
| QUIETING TITLE. | |
| Equity has jurisdiction to quiet the title at the suit of an owner of real estate in possession alleging a tax title held by defend ant, who refuses to prosecute it | 1173 |
| A bill to quiet title will not lie between parties claiming title through the same person who is in possession, holding adversely to both, until the title is determined by a suit at law | 1260 |
| A bill of peace will not lie unless complainant is or has been in possession, or there is a defect in some deed asked to be given up | 1164 |
| To maintain a bill of peace by a person having a present right of possession, he must have actual possession, which must be disturbed, and his right must have been previously determined at law | 1260 |
| QUI TAM AND PENAL ACTIONS. | |
| The failure of the declaration on a penal statute to conclude against the form of the statute is a fatal omission on error | 938 |
| Such declaration need not specify the uses to which the forfeiture inures, and an allegation in that respect may be stricken out as surplusage | 938 |
| Where several acts are mentioned in the declaration, an allegation that “by force of said act,” without designating the particular act, is not fatal on error | 938 1372 |
| RAILROAD COMPANIES. | |
| See, also, “Carriers”; “Corporations”; “Eminent Domain”: “Mandamus.” | |
| “Net earnings” defined | 167 |
| The holder of preferred stock, entitling him to dividends out of the “net earnings, * * * after payment of mortgage interest,” is not entitled to dividends before payment of interest on bonds given for money subsequently borrowed, or of rent due on subsequent leases of connecting lines | 167 |
| Where the payment of rent by a lessee company is guarantied by other companies, holding large blocks of its bonds, the court will require it to pay such rent in advance of the interest on the bonds owned by the guarantors, and will restrain them from disposing of such bonds | 190 |
| A mortgage covering all after-acquired property will include rolling stock, though it is personal property, under the state constitution, as against creditors who did not secure a lien before the rolling stock was acquired | 820 |
| The fact that notice of the election, at which the authority to issue the railroad aid bonds was given, was issued by the wrong officer, will not invalidate the bonds in the hands of a bona fida holder, where the county has paid interest thereon for nine years | 665 |
| Bonds of a county in Missouri not with in the limits of the original charter of the company held void in tie hands of a bona fide holder, for want of legislative authority to issue them | 1283 |
| REAL PROPERTY. | |
| See, also, “Adverse Possession”; “Deed”; “Ejectment”; “Grant”; “Public Lands.” | |
| Authority conferred upon three commissioners in proceedings to divest title to land cannot be exercised by two, where the third had no opportunity to take part therein | 667 |
| In an action for mesne profits, defendant is entitled to an offset of the amount ex pended for necessary repairs and legal taxes | 1068 |
| RECEIVERS. | |
| See, also, “Contempt.” | |
| A receiver will not be appointed of property which is in the possession of a person not a party to the suit | 929 |
| REMOVAL OF CAUSES. | |
| See, also, “Courts.” | |
| Right of removal. | |
| The requisite jurisdictional citizenship must exist as to each individual plaintiff in an action against an alien, to authorize a removal under Act March 3. 1875, £ 2 | 589 |
| Where, in a suit by a nonresident plain tiff against a citizen of a state where the suit is brought and a citizen of another state, the latter voluntarily appears, plain tiff may obtain a removal of the cause as to all of the defendants. (Act March 2, 1867.) | 345 |
| A suit by railroad bondholders under a deed of trust which is paramount to the rights of stockholders may be removed to the federal court, notwithstanding the existence of a prior suit in the state court by the stockholders, and possession of the road taken therein | 820 |
| Time for removal. | |
| The term at which a cause could be first tried is the term at which the issues are first made up, where the party applying for a removal has not been guilty of negligence | 820 |
| Proceedings to obtain. | |
| Where under the state statutes, its courts can act only in term, a cause refer red to a referee for trial in vacation can not be removed by the filing of a petition, affidavit, and bond in vacation | 846 |
| After the filing of the petition and bond required by law, the jurisdiction of the state court over a removable action is at an end | 960 |
| A certiorari is not necessary where the record of the state court is already be fore the federal court | 820 |
| Sufficiency of application for a writ of certiorari to remove a case under Act March 2, 1833 | 229 |
| Effect of removal: Subsequent proceedings | |
| Where it appears that the cause does not really and substantially involve a dispute or controversy properly within the jurisdiction of the federal court, the cause must be dismissed or remanded | 114 |
| Where it appears that the nonresident party upon whose petition the cause was removed, has parted with his interest, and the substantial controversy is between citizens of the same state, the cause will be remanded | 114 |
| After a foreign corporation, sued in the state court, has removed the case to the federal court, it cannot object to the jurisdiction of the state court, or take exception to the process by which it was brought in | 608 |
| The right to costs after removal is determined by the state statutes, and not by Rev. St. £ 968; and plaintiff's right to costs does not necessarily depend upon the amount of recovery | 879 |
| Where the sum in dispute between plain tiff and defendant in an attachment case is within the jurisdiction of the federal circuit court, the fact that the claims of other creditors are less than $500 will not affect such jurisdiction | 960 |
| A foreign corporation cannot object to the jurisdiction of the court on the ground that it was not an inhabitant of or found within the district, after it has removed the cause from the state court to the federal court, under Act 1789. £12 | 608 |
| Effect of repeal of Act Tune 30. 1864, £ 50. by Act July 13. 1860. £ 68. on an action against a collector of internal revenue theretofore removed to the federal court | 273 |
| REPLEVIN. | |
| To maintain replevin for logs cut upon state lands and indistinguishably mingled with logs cut upon other lands, it is not necessary that the state identify each log | 749 |
| Defendant who has pleaded property in himself will be permitted to amend by pleading property in a stranger, on payment of costs | 1059 |
| RIGHT, WRIT OF. | |
| In a writ of right, the proof must strictly conform to the allegation; and an allegation by several demandants as equally interested is not supported by proof of different estates | 850 1373 |
| RULES OF COURT. | |
| The rules established by the supreme court are rules of practice, not of decision | 1048 |
| A rule established by the supreme court in pursuance of law becomes a part of the law itself | 1131 |
| SALE | |
| See, also, “Deceit”; “Vendor and Purchaser.” | |
| A valid sale may be made of personal property which is out of possession of the party | 432 |
| Where a chain cable is loaned a vessel until another can be manufactured for her, and she fails to return it as agreed, and sails with both cables, she is liable for the price of both | 484 |
| A contract for the conditional delivery of goods to a debtor gives his creditors no title to them until the account for the same is paid | 590 |
| A shipment will remain on the account and risk of the shipper, unless there be an express or implied authority to change the proprietary interest, and put the shipment at the risk of the consignees | 403 |
| The doctrine as to stoppage in transitu does not apply where the actual or constructive possession remains in the shipper or his exclusive agents | 389 |
| A shipment made by a merchant, who purchased goods for another consigned to his own agent, with the right to hold them until arrangements are made with the correspondent, does not divest the title or pos session of the shipper | 389 |
| The right of stoppage in transitu ceases on a sale by the purchaser to a third person | 706 |
| SALVAGE. | |
| Jurisdiction. | |
| The district court has jurisdiction over a case of salvage on the Ohio river | 1096 |
| Bight to salvage compensation. | |
| Persons whose exertions did not benefit the property cannot claim compensation as salvors, though for bona fida efforts, which were unsuccessful, they should be allowed something in the nature of a quantum meruit | 159 |
| A vessel condemned in damages for a collision will not be allowed salvage for rescuing the other vessel from sinking by towing her to a place of safety | 298 |
| Salvage will be awarded where property is exposed to a chance which might destroy it, and is saved at some personal risk | 1096 |
| The fact that the owner is in pursuit, unknown to the salvor, does not deprive him of his claim | 1096 |
| Where a vessel has encountered any danger or misfortune which may possibly expose her to destruction if services are not rendered, they are salvage services, though the danger is not imminent or absolute | 425 |
| Services rendered in raising sectional docks used for dry-docking vessels are not the subject of salvage compensation | 281 |
| Towing a steam vessel which has lost the use of her machinery by an accident, although she is sound in hull and masts, is a salvage service | 425 |
| A carrier held personally liable for salvage on property loaded on its cars while being transported by another across a river on flatboats | 918 |
| Barges adrift on the Ohio river are a proper subject of salvage | 1096 |
| Contracts for salvage services | |
| Agreements entered into in situations of distress at sea are contrary to law, and will be set aside | 750 |
| Forfeiture or reduction of salvage. | |
| Additional unnecessary labor will not re duce the compensation for services actually necessary | 327 |
| Salvors are liable for damage done to the sails of the vessel saved by being negligently left exposed to sparks from the salvor vessel | 1076 |
| Amount. | |
| Salvage should be awarded with such liberality as to give proper encouragement to the rendition of salvage services | 816 |
| The value of the services to the property saved, and not the number of salvors, determines the amount | 327 |
| Where it appears in the case of a vessel saved from wreck that a sum may be de posited to secure salvage, a smaller proportion will be awarded than in the case of a judicial sale, where full-value is seldom obtained | 99 |
| Neither the fact that the salvor vessel was saved from exposure to storm by going into a port of distress with a disabled steamer under tow, nor the fact that she was injured in a subsequent storm by reason of the delay, can be considered in fixing compensation for salvage | 426 |
| $75 awarded for six hours' service for saving a water-logged and abandoned scow, worth, with cargo, £5,000 | 1076 |
| $500 awarded on a net value of $37,500 to a tug for going to the rescue of a barge loaded with railroad cars, drifting in a field office | 918 |
| $900 allowed a vessel worth, with cango $230,000, for towing a disabled steamer, worth, with cargo, $100,000, 63 miles to port, incurring a loss of three hours' time to the salvor, and saving the other four days | 425 |
| $1,200 allowed on a net value of $38,000, for pulling off a vessel aground in a dangerous position in the channel of Charles ton harbor | 816 |
| $9,000 allowed salvor vessel worth, with cargo. $434,000, for towing into Norfolk disabled steamer, worth, with cargo, $100,000 | 426 |
| Forty-five per cent, allowed on a net value of $11,616 in the case of a vessel grounded on the Florida reef, where four days were spent in getting her off | 797 |
| One-half allowed on a gross value of $4,000 where a pilot boat went in search of a derelict schooner, and, after great labor, found and towed her to port | 595 |
| Remedies for recovery. | |
| The master of a vessel in a dangerous situation, after summoning wreckers to his assistance, will not be heard to object to the payment of salvage, on the ground that such assistance is unnecessary | 327 |
| Apportionment. | |
| Ordinarily, one-third of the entire salvage is given to the owners of the salvor vessel | 1108 |
| A distribution of the salvage among officers and men in proportion to wages held proper | 1108 |
| In a case of extraordinary merit, where a salvor failed to present his claim until after salvage was decreed and paid, he was allowed compensation out of the proceeds remaining in the marshal's hands, reserved for the owners | 107 |
| Right to property or proceeds. | |
| The uninterrupted continuance for 30 years of a custom of a certain court in regard to rights to derelicts raises an inference of the legality thereof | 42 1374 |
| In the Southern district of Florida, the residue of ii derelict, in the absence of any claimant, is delivered to the salvors after the lapse of a year and a day | 42 |
| As against the salvors, the United States are not entitled to the residue of a derelict | 42 |
| SEAMEN. | |
| See, also, “Admiralty”; “Maritime Liens.” | |
| The contract of shipment. | |
| There is no “difference” between master and crew, within the meaning of a stipulation providing for arbitration, where wages due were agreed upon and demanded, but payment of them was refused | 449 |
| A woman employed as cook on board a vessel is a mariner, and entitled to sue inadmiralty for her wages | 149 |
| An agreement on a sealing voyage for shares of every article “procured by the crew” does not give a right to a share of freight earned by the transportation of merchandise | 449 |
| Under a contract for the run homeward from a foreign port at a stated sum, the seamen may leave the ship as soon as she anchors in the harbor of her home port | 113 |
| Stipulations in articles, in addition to those recognized by Act July 20. 1790. operating to the disadvantage of the seamen, will not be enforced, unless it appear from evidence outside the articles that the seamen fully understood the stipulations, and received adequate consideration therefore | 449 |
| A stipulation that the seamen will prose cute their suits for wages in courts of common law only comes within such rule | 449 |
| Where the articles were for a voyage from San Francisco to Calcutta, and no wages were name'd, held, that evidence was admissible to show that the contract was for a voyage from San Francisco to Boston, via Calcutta, at an agreed rate of wages | 1228 |
| A seaman, rejoining his vessel after being left sick in a foreign port, is entitled to the wages originally contracted for though the master paid the consul three months' extra wages, under Act Feb. 28. 1803 | 1151 |
| Where a seaman fails, by his own fault, to rejoin the shin at an intermediate port, at which she touched in the course of the voyage, the master is not bound to reinstate him upon the return of the vessel to such port in the course of her voyage | 895 |
| The master may disrate a seaman found to be disqualified for the particular duty for which he shipped, and make a reason able deduction of wages therefore | 1294 |
| Dishonesty or intemperate habits are sufficient causes for degrading a steward, and putting him before the mast | 1294 |
| A mate who, during his watch, turns in and leaves the vessel without an officer in command, may be disrated | 1095 |
| Where the mate is discovered in his berth during his watch, while the ship is without an officer in command, the burden is upon him to show that he was not called | 1095 |
| A mate wrongfully discharged abroad, and returning home before the mast, held should be allowed expenses and wages to the home port, without any deduction for wages earned before the mast | 1228 |
| Conduct of master or mate in respect to seamen. | |
| The ship's carpenter ranks with an ordinary seaman, and is subject to the orders of the second mate | 1266 |
| General orders from one officer will not excuse the disobedience by the seaman of the specific orders of another inferior officer | 1266 |
| The court will discourage actions for damages on account of obsolete grievances | 528 |
| The master is liable in damages for flogging a seaman without a hearing, for disobeying orders, where the seaman acted in good faith | 1266 |
| A mate cannot justify an assault and battery by the orders of the master, not knowing them to be illegal | 1266 |
| An assault with a dangerous weapon can not be justified by showing that the weapon was casually in the hands of the master, and was used by him in a moment of excitement, under circumstances justifying punishment of the seamen | 528 |
| The conduct of both parties will be considered in estimating the amount of dam ages for assault and battery | 528 |
| In fixing the amount of damages in a case of assault and battery, the court will consider the situation of the parties, and the various aggravating and mitigating circum stances of the case | 659 |
| The court will consider the fact, in estimating damages for an assault and battery by the master, that the mate, in no wav connected therewith, was made a party to the libel, to render him incompetent as a witness | 503 |
| Wages—Right to. | |
| There are exceptions to the rule that, to entitle to wages, freight must be earned | 476 |
| A capture, unless followed by condemnation does not dissolve the contract for wages. It is suspended during prize proceedings, and upon a decree of restoration it revives | 476 |
| If, pending the voyage, there be an interdiction of commerce with the port of destination, by war or otherwise, and in consequence, the voyage is broken up, no wages are due | 476 |
| But the seamen are entitled to a reason able compensation where they are subsequently retained by the master, to refit and preserve the ship | 476 |
| And, where they are subsequently discharged in, a foreign port, they are entitled to the two months' wages (Act Feb. 28. 1803, c. 62), and may recover the same in admiralty | 476 |
| A seaman discharged in a foreign port on his vessel's being condemned as unseaworthy is not entitled to the three months' extra wages where the injuries were received from perils of the sea during the voyage | 15 |
| The personal representatives of a sea man who died on the return voyage are entitled to his wages at least to the time of his death | 830 |
| —Remedies for recovery. | |
| The vessel owners are not liable for the wages of a cook hired by the master on his exclusive credit | 829 |
| Seamen have a paramount lien upon the freight money of the voyage, which is to be administered by a court of admiralty by the service of its attachment upon the freight moneys in the hands of the parties wherever it is found | 152 |
| The seamen's lien for wages does not pass to a shipping agent by reason of advances made to the seamen at the home port | 941 |
| The assignee of a seaman's claim for wages cannot enforce the same in rem in admiralty | 19 |
| A claim for wages not set up until after the vessel has been sold on proceedings to enforce a lieu for supplies must be supported by clear evidence | 933 |
| —Deductions: Extinguishment, etc. | |
| A surgeon who ships in time of war will not suffer a deduction of wages where peace takes place while at the outward port | 1194 1375 |
| An agreement by a needy mariner in a foreign port to take one-third of the amount of wages due in full payment is a nudum pactum | 553 |
| Where a seaman puts the vessel in jeopardy by violating a notorious excise law by smuggling, he is subject to make amends by forfeiture or subtraction of wages | 849 |
| A mate cannot be charged with negligence in not keeping a proper account of goods taken on board, when he was ordered on other duty by the master during the loading of the vessel | 652 |
| A mate cannot be charged on the ground of negligence with the difference between the amount of goods landed and that shown on the invoice, unless such amounts are clearly shown | 652 |
| Where the absence of a seaman with out leave or justification caused no pecuniary loss to the master, a small deduction only from the wages was made | 848 |
| The provision of Act July 20, 1790, £ 5, in relation to absence without leave and a log-book entry, was repealed by Act June 7. 1872, £ 51 | 848 |
| Act 1874, c. 260. if construed as repealing Act June 7, 1872, £ 51, as to coasting voyages, has no effect on rights accruing before the repeal | 848 |
| Cruel and oppressive treatment by the master will justify desertion, and the sea man is entitled to full wages to the end of the voyage | 1294 |
| SET-OFF AND COUNTERCLAIM. | |
| A debt payable in future cannot be plead ed in bar of a present demand | 837 |
| A debt due from the obligee to the obligor of a bond ascertained upon a settlement of mutual accounts, after the institution of a suit by an assignee of the bond, cannot be set off against such assignee | 837 |
| SHPPING. | |
| See, also, “Admiralty”; “Affreightment”: “Bills of Lading”; “Bottomry and Respondentia”; “Carriers”; “Collision”; “Demurrage”; “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage”; “Wharves.” | |
| Public regulation. | |
| The registry acts do not require a disclosure of the equitable title of the vessel registered or enrolled, unless such title is in the subject of a foreign state | 888 |
| Shipping commissioners | |
| Under the act of June, 7, 1872, the office expenses of a shipping commissioner are to come out of fees received, after which he may retain, as his emolument, $5,000 per annum, the balance to be paid into the treasury | 1314 |
| The shipping commissioner may appoint clerks with the title of deputy commissioner, under Rev. St. £ 4503 | 1318 |
| Salaries of employés in the office of the shipping commissioner of the port of New York considered | 1318 |
| Title to vessel. | |
| The title to a vessel may pass by delivery under a parol contract | 883 |
| Merely making part payment under a con tract for construction of a vessel does not give the contractee title thereto | 294 |
| Where the person for whom a vessel is contracted to be built superintends her construction. and makes payments as the work progresses, he is regarded as the real owner | 883 |
| Where a sale by the master of a vessel in distress is declared invalid by the court, the purchasers will be allowed their expenses of getting off and repairing the vessel, where the transaction was free from fraud | 432 |
| The register of a vessel is not evidence of ownership unless confirmed by evidence to show that it was made by the authority or assent of the person named in it, who is sought to be charged as owner | 883 |
| Where mortgagees of a vessel decline to appear as claimants in a suit in admiralty to enforce a maritime lien, their lien is not affected by a sale under the decree | 742, 744; contra, 746 |
| The provisions of the French marine law which authorize a compulsory sale of a vessel in case of partners (disagreeing about the use of her are part of the general law of admiralty, binding on the courts of this country | 1081 |
| On a disagreement between equal owners as to the management of the vessel, a sale will be ordered on the petition of one owner | 1081 |
| The master. | |
| The master cannot, without special authority, sell the vessel in the country where lier owner lives, even in cases of extreme necessity | 893 |
| In a case of urgent necessity, the master may sell the vessel as well on a home shore as on a foreign shore, and whether the owner residence be near or at a distance | 432 |
| A sale by the master will be justified where an owner of reasonable prudence would have directed the sale, from the opinion that the vessel could not be delivered from the peril without the hazard of an expense disproportionate to her real value | 432 |
| That the master acted in good faith and in the exercise of his best discretion will not justify a sale by him, unless there appears to have been an urgent necessity to sell, for the preservation of the interests of all concerned | 432 |
| When necessary repairs can be made within a reasonable time, the master may hypothecate freight and cargo for that purpose, instead of transshipping | 705 |
| The lien of the master of a foreign ship, given equal rank with the liens of seamen and material men by the law of the flag, will not be enforced in our courts | 1025 |
| The shipowners are liable for the tort of a master in shipping a minor known to him to have run away from another vessel | 1292 |
| Employment of vessel. | |
| After a vessel which has sprung a leak, by a peril of the seas, reaches her dock, the vessel is liable for loss to the cargo, caused by the neglect of the master to use such extraordinary measures as are necessary under the circumstances | 1155 |
| The vessel is liable in such case for loss caused by flooding from the failure to continue the working of a steam pump, placed on board during the unloading of the car go | 1155 |
| Liabilities of vessels or owners | |
| The vessel is not liable for breach of an agreement to receive goods for transportation | 118 |
| The vessel is not liable for breach of a charter party unless the cargo is actually or constructively in her possession | 284 |
| A master has authority, where customary in the business, to bind the ship by a contract to collect of the consignee advances and charges on the goods, and repay them to the shipper | 176 1376 |
| Limiting liability. | |
| The act limiting liability does not extend to a loss by fire of goods after they are landed on the wharf | 259 |
| Slander. | |
| See “Libel and Slander.” | |
| SLAVERY. | |
| The child of a slave, born after the death of her owner, and before she arrives at the age at which she is entitled to manumission by his will, is a slave | 306 |
| The children of a female slave, born during a term of service for which she is sold, with an obligation by the vendee to manumit her at the expiration of the term, are entitled to freedom | 431 |
| Parol evidence is, inadmissible to show the terms of sale of a slave where the contract was made in writing | 812 |
| Validity of deed of manumission in Mary land | 300 |
| Right to freedom of slave imported into Alexandria, D. C | 284 |
| STATES. | |
| A special fund for the payment of a claim having been applied to other uses by the state treasurer, a court of equity cannot restrain such officer from applying to general purposes other subsequently received funds, not specially dedicated by law, nor compel by mandamus that they be substituted in place of the special fund | 1033 |
| STATUTES. | |
| See, also, “Constitutional Law.” | |
| When the priority of different events comes in question, an act will be considered as taking effect only from the actual time of its approval by the president | 254 |
| Where an act is capable of two interpretations, the court will adopt the one which will sustain it, rather than one which will render it void as unconstitutional | 203 |
| In the interpretation of statutes, words of common use are to be taken in their natural, plain, and ordinary signification | 737 |
| A statute conferring limited jurisdiction will be construed strictly as to the extent of jurisdiction, but liberally as to the mode of proceeding | 66 |
| Under an act appropriating moneys to a certain person as assignee of C., “or to whomsoever shall appear to the comptroller to be entitled to his share,” held, that C, was not entitled to the moneys in his own right, and a suit could be maintained in the name of any one legally entitled thereto. | 343 |
| Though congress may pass retroactive statutes, providing they are not ex post facto, a statute will not be construed as retroactive, unless the legislative intention is so expressly declared or appears by unavoidable implication | 667 |
| A subsequent statute inconsistent with or repugnant to a former statute repeals it by implication | 672 |
| A law in existence at the time labor was performed, giving a right to a lien therefore, and an action to enforce the same, is a part of the contract which is unaffected by its repeal | 124 |
| Under Const. Or. art. 4, £ 22, a section of a statute cannot be amended by simply re pealing a clause or subdivision of it | 611 |
| Parol evidence is not admissible to prove a foreign law. unless it appear that the party has been unable to obtain a certified copy | 1093 |
| SUNDAY. | |
| The fact that a vessel was hauled into a dock on Sunday, which was an illegal act under the state law, will not prevent her recovering damages in admiralty, where she is injured on such day on the falling of the tide from defects in the bottom. | 569, 576 |
| TAXATION. | |
| See, also, “Banks and Banking”; “Internal Revenue.” | |
| A constitutional provision abolishing all laws exempting property from taxation does not thereby impose any tax, and none can be collected which is not specially authorized by statute | 548 |
| Where a statute provides for a board of three tax commissioners, and that number is appointed, but only two acted or qualified, the proceedings of the board are void ab initio | 667 |
| A statute declaring that a majority of the board shall have full authority to transact business, and that no proceedings shall be declared invalid on account of the absence of one of them, will not be construed to have a retroactive effect | 667 |
| The assessment and advertisement of property in a wrong name in the District of Columbia does not make the tax sale void. (Act May 26, 1824.) | 1057 |
| A tax sale will be set aside in equity where there was fraud and collusion between the officer making the sale and the purchaser. | 672 |
| TERRITORIES. | |
| The territory of Nebraska, under the organic act, may provide for personal service upon nonresidents out of the district, or for constructive service by publication in suits relating to property in the district, notwithstanding section 11 of the judiciary act, requiring personal service in the district | 232 |
| TOWAGE. | |
| See, also, “Collision.” | |
| A tug towing a coal heaver is the servant of the latter, and bound to obey its orders; and is not responsible, though, in point of fact, giving orders to her, for damages in the proper course of its employment | 290 |
| The master of the tow must follow the guidance of the tug; and when directed to follow in its wake he should have a look out forward to observe the course of the tug | 897 |
| A master, acting as pilot and wheelman in the wheelhouse of a tug, is not a competent lookout | 897 |
| Tug held not liable by loss of tow in severe storm, sunk by water getting into her hold through an insufficiently secured forecastle batch | 759 |
| The master's certificate as to the amount agreed to be paid for services will not be set aside unless it appear clearly and satisfactorily that the sum named is so unreasonable as to raise a suspicion of fraud | 1077 |
| TOWNS. | |
| A detective employed by a town to ascertain what individuals composed a mob that destroyed property for which the town was liable may recover compensation, with interest from the time of his demand | 498 1377 |
| TRADE-MARKS AND TRADE-NAMES. | |
| Equity will not interfere in behalf of the owner of a trade-mark acquired by advertising the subject of it under false representations as to its origin and qualities | 908 |
| TREATIES. | |
| Our courts cannot question the validity of the commission of a French privateer, whose prize is brought into our courts under article 17 of the treaty with France | 225 |
| TRIAL. | |
| See, also, “Appeal”; “Continuance”; “Evidence”; “Judgment”; “NewTrial”; “Practice”; “Witness.” | |
| A cause is not regularly for trial unless it has been put at issue at a preceding term | 720 |
| The federal circuit court is not bound to notice in its charge any matters to which its attention is not called, and in regard to which instructions are not requested | 905 |
| A verdict, though informal, is good if the substance of the issue has been found | 66 |
| In a suit in the name of the United States of America, a verdict finding in favor of the United States, without the addition “of America,” is sufficient | 938 |
| TROVER AND CONVERSION. | |
| The unauthorized transfer of plaintiffs property by defendant, though without wrongful intent, and before demand, is still a conversion | 549 |
| In an action of trover and conversion for articles purchased from a person who sold them without authority, the measure of damages is the real value of the property | 893 |
| TRUSTS. | |
| See, also, “Charities”; “Executors and Administrators”; “Guardian and “Ward”; “Wills.” | |
| A person who assumes to act as agent in redeeming lands sold for taxes will be considered as acting in that capacity in subsequent dealings with the title | 655 |
| A cestui que trust may maintain a suit to enjoin the trustee from collecting, appropriating, or disposing of the trust property | 212 |
| UNITED STATES. | |
| All powers of the United States government arise from the grant expressed in their written constitution. None of the prerogatives of the English crown devolved by succession upon them | 42 |
| A defendant sued by the United States is not entitled to a finding in any form of a sum due him by the United States in excess of the claim for which he was sued | 654 |
| USURY. | |
| The owner of property borrowed money to pay off an incumbrance, and deeded the same to the lender, who gave back a lease at a greater rental than legal interest, with the privilege of purchasing during the term for the amount loaned. Held not a usurious transaction | 1289 |
| VENDOR AND PURCHASER. | |
| See, also, “Bankruptcy”; “Deed”; “Frauds, Statute of; “Fraudulent Conveyances”; “Grant”; “Sale.” | |
| An assignment, recited in a patent, that the warrant was assigned by the representatives of A. B., is no notice to the purchaser that the assignment was made with out authority | 827 |
| In an action by the payee of a note given for the purchase price of land, defendant may set up in defense plaintiff's want of title to the land | 881 |
| WAR. | |
| See, also, “Prize.” | |
| A note given for the loan of Confederate money is illegal, without consideration, and void, and will not support a note or duebill given in renewal thereof | 889 |
| A state of war suspends existing contracts between the belligerent parties, and, upon the termination of the war, obligations theretofore contracted are revived | *1051 |
| The condition in a fire policy that suit must be brought within 12 months after the loss is suspended by a war between the belligerent parties as to a loss occurring before the commencement of hostilities | 1051 |
| Obligations suspended during the Civil War held revived by the president's proclamation of June 13, 1865 | *1051 |
| Members of a raiding party connected with the Confederate army are individually liable for property taken, whether present at the taking or not | 1328 |
| The commencement of hostilities by the seceding states gave the president of the United States power to declare a blockade of their ports, without any act of congress declaring war | 462 |
| The claimant of property seized and forcibly removed from his possession, as captured or abandoned property, is not liable for freight and charges on it, where the seizure was wrongful | 482 |
| Proceedings for condemnation of land under the confiscation acts of August, 1861, and July, 1862, as to form, and trial, exceptions, and review | 1072 |
| Recovery of money paid for the release of captured property | 1314 |
| WASTE. | |
| An action of waste is not maintainable against a tenant by elegit, either under the common law or the statutes of Virginia | 840 |
| Waters and Water Courses. | |
| See “Navigable Waters.” | |
| WHARVES. | |
| The city authorities of the city of Detroit may erect wharves at the termini of their streets, suitable for landing; but, by so doing, such erections become free to the public as extensions of the streets, and tools can not be exacted for use thereof | 23 |
| A lease giving the lessee “the sole and exclusive right to use a public wharf” for his ferryboat does not authorize the collection of a toll for wharfage | 23 |
| Under what circumstances the owner of a wharf must notify the master of a vessel about to enter of the condition of the bottom alongside | 569 |
| Wharf owners are liable for damages suffered by a vessel lawfully using their wharf for defects in the bottom, known to them, and not to the master of the vessel | 569, 576 1378 |
| The wharfinger loses his lien where he parts with possession of the vessel | 22 |
| A wharfinger's lien cannot be enforced in admiralty against a domestic vessel, as he not a material man within rule 12, in relation to the liens given by the local law | 22 |
| The harbor police boat owned by New York City cannot be arrested in admiralty to enforce a claim for wharfage | 1080 |
| WILLS. | |
| See, also. “Charities”; “Descent and Distribution”; “Executors and Administrators”; “Trusts.” | |
| A condition annexed to a devise that it shall not be liable for the devisee's debts is invalid | 358 |
| Testator may provide that the estate of the devisee on his becoming a bankrupt shall determine and go somewhere else | 358 |
| The word “condition.” annexed to a devise of real estate, construed as a charge upon the real estate devised | 339 |
| A charge of the payment of debts and legacies made upon one to whom an estate is devised is always treated as a charge in rem, as well as in personam, unless the contrary is evident from the language in the will | 339 |
| WITNESS. | |
| See, also, “Bankruptcy”; “Costs”; “Deposition.” | |
| Parties who are competent witnesses in the state courts are also competent in the federal courts, under Act July, 1862 | 638 |
| Query, whether a declaration of disbelief in a future state of rewards and punishment renders a witness incompetent | 96 |
| A state statute allowing interested persons to be witnesses does not apply to suits in equity or criminal cases in the federal courts. (Act 1789, £ 34.) | 1018 |
| Subpænas and notices directed to a witness or party need not necessarily be served by the marshal | 765 |
| A witness before a grand jury is not bound to answer where he states that the answer might implicate himself | 326 |
| Inconsistencies in the testimony of a witness whose relation to the cause puts him under a strong bias to testify in favor of one of the parties may be used to discredit his entire testimony | 324 |
| The examination of respondent in equity as a witness, by the orator, does not operate as a release to him of the matters concerning which he is examined | 638 |
| Witnesses from a distance are entitled to fees for attendance on Sunday when they are detained over that day | 733 |
| A witness cannot have an attachment for his fees until he has shown, by affidavit, defendant's refusal to pay after service upon him of an order for payment | 136 |
| WRITS AND NOTICE OF SUITS. | |
| An error in the original capias is no ground of dismissal where a correct alias capias has been served | 894 |
| Original process, directed to the marshal, cannot be served by a private person, although such mode of service is authorized in the state courts | 764 |
| The subpæna in a suit in equity to stay execution on a judgment at law may be served on the attorney of the plaintiff in the action at law | 562 |
| Service of subpæna in an equity suit brought by defendant in an action at law against the nonresident plaintiff therein to restrain its further prosecution, may be made upon the attorney for such nonresident party | 1018 |
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