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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
23FED.CAS.
23FED.CAS.—86
23FED.CAS.—87
23FED.CAS.—88
| Page | ||
| ACKNOWLEDGMENT. | ||
| It is sufficient if it appear by the certificate of the execution and acknowledgment of a deed by a feme covert that the statutory directions were substantially complied with. | 644 | |
| ACTION. | ||
| The fact that plaintiff has a remedy ex contractu against others is no bar to a suit ex delicto against a wrongdoer. | 230 | |
| Where a person having an election to bring his suit either on a contract or for a tort, proceeds to judgment without a declaration, he cannot subsequently file a declaration for a tort, where the whole course of his proceedings shows that he proceeded upon a contract. | 915 | |
| Whenever the same plea may be pleaded and the same judgment given on two counts, they may be joined in the same declaration. | 116 | |
| Where it appears that plaintiff is entitled to the whole of a given sum in certain given rights, it is no objection to a recovery by him that it is not shown how much he is entitled to in each right. | 142 | |
| The respective claims of contending assignees of a cause of action pending in court will not be decided on motion. | 937 | |
| Adjoining Landowners. | ||
| See “Mines”; “Waters and Water Courses.” | ||
| ADMIRALTY. | ||
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Charter Parties”; “Collision”; “Demurrage”; “Marine Insurance”; “Maritime Liens”; “Pilots”; “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping”; “Towage”; “Wharves.” | ||
| Jurisdiction—In general. | ||
| The district court in admiralty is governed by the maritime code possessed before the Revolution, where not altered by law or by a change of circumstance. | 1028 | |
| Laws and principles which govern the maritime courts of the United States in cases where no regulations are prescribed by our own laws. | 1028 | |
| The statutes of 13 & 15 Rich. II. have received in England a construction which must at all times prohibit their extension to this country. | 29 | |
| In cases of torts, injuries, and offenses locality brings them within the admiralty jurisdiction, but in cases of contract it is also necessary that the subject-matter be of a maritime nature. | 877 | |
| ——Persons and property. | ||
| Admiralty has jurisdiction to entertain suits in personam, where the parties are foreigners of different nationalities. | 1003 | |
| In the case of a suit between foreigners jurisdiction will not be declined where the request is delayed, and the position of the parties has changed in the meantime. | 1003 | |
| The court declined jurisdiction in a controversy between foreign seamen and their vessel where the parties might have had redress by a tribunal of their own country. | 1104 | |
| ——Rights and controversies. | ||
| Admiralty jurisdiction over a maritime cause is in its nature complete. It extends to the person as well as to the res, and can not be confined to one of the remedies on a contract when the contract itself is within the cognizance of the court. | 29 | |
| Every contest between the owners and mariners and the owners and builders or equippers of a ship for the navigation of the sea is cognizable in the admiralty. | 29 | |
| A contract relative to services on board a vessel on the sea or within tide waters cannot be enforced in admiralty, unless the service is essentially maritime. | 877 | |
| A contract to transport a passenger on the high seas or on tide water is a maritime contract, and within the admiralty jurisdiction. | 158 | |
| Steamboats and lighters engaged in trade or commerce on tide water and the seamen employed on board are within the admiralty jurisdiction, but not ferry boats, or those engaged in ordinary traffic along the shores of a river. | 877 | |
| A contract for services on board a vessel employed in transporting fuel across the Delaware river cannot be enforced in admiralty. | 877 | |
| Admiralty has no jurisdiction of a claim for services rendered to a vessel on the rocks, and materials furnished in aid thereof, under employment by the owners in charge to assist them. | 329, 330 | |
| The admiralty jurisdiction of the federal courts extends to petitory as well as to possessory suits. | 797 | |
| Admiralty has jurisdiction over petitory as well as possessory suits to reinstate owners of ships who have been wrongfully displaced from their possession. | 1277 | |
| A purchaser who has been put in possession, though he has no bill of sale, may maintain a possessory suit in admiralty. | 1179 | |
| Admiralty has jurisdiction in case of a wrecked ship to decree a sale upon application of the master. | 1277 | |
| Such sale is not conclusive upon the owner or upon third persons. | 1277 | |
| ——Torts. | ||
| The admiralty jurisdiction as to torts depends upon locality, and is limited to torts committed on the high seas, or within the ebb and flow of the tide. | 957 | |
| Admiralty has jurisdiction of a personal tort committed upon tide waters within a local harbor, where connected with other matters within admiralty cognizance | 942 | |
| Admiralty has jurisdiction in cases of collision upon tide waters in Chesapeake Bay or its tributary rivers. | 773 1360 | |
| Procedure. | ||
| A libel in admiralty was dismissed pro forma for want of jurisdiction in order to allow an immediate appeal | 481 | |
| ADVERSE POSSESSION. | ||
| See, also, “Ejectment.” | ||
| A possession without claim of title affords no presumption of right from mere lapse of time. | 615 | |
| A deed is not to be presumed where the evidence shows that plaintiffs frequently remonstrated, and consulted counsel about redressing their wrong. | 83 | |
| AFFREIGHTMENT. | ||
| See, also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Demurrage”; “Shipping.” | ||
| Where the charter party is not proved, or is silent in regard to the consignee or mode of delivery, the bills of lading are controlling Evidence of the contract of affreightment. | 242 | |
| In the absence of any statute or established general usage to the contrary, Fast-Day must be considered as an ordinary working day for the purpose of lading or unlading cargo. | 682 | |
| A discharge of the cargo commenced be fore may be continued on Fast-Day. | 682 | |
| Sufficiency of evidence of proof of delivery of goods involving the question of the alteration of receipts after signature. | 270 | |
| The wharf being the place of delivery, evidence that the number of articles called for by the bill of lading were placed thereon will exonerate the ship, as against evidence that a lesser number were received at the consignee's storehouse, whither his own cart man conveyed them. | 269 | |
| A known usage of trade and navigation from New Orleans to Northern ports to touch at Havana for cargo, prevents such act being a deviation. | 891 | |
| An intention to take on cargo at an inter mediate port is not a deviation, where made known to the shipper when bills of lading were executed. | 891 | |
| The acceptance of cargo by the shipper with knowledge of a deviation restores the shipowner's right to freight. | 891 | |
| But receiving cargo with the knowledge of a deviation does not deprive the consignee of his right of action for special damages sustained by the deviation, and such damages may be recouped in an action for freight. | 891 | |
| Freight may be recovered by the master against the consignee in admiralty, either in personam or in rem. | 891 | |
| The lien for freight is discharged by delivery to the consignee without demanding freight or notifying him of a lien therefor, in the absence of a special agreement or local usage to the contrary, irrespective of the intentions of the master. | 680 | |
| The fact that goods sold at auction by the master for freight in San Francisco in 1850, brought only half the amount and were sold within two weeks by the purchaser at three times such amount, does not show fraud or unfairness, where the sale was made in the usual way after due advertisement. | 468 | |
| The vessel is liable where, by the negligence of the master, the cargo is exposed to injury by an excepted peril. | 680 | |
| Where the vessel is laid, up for the winter with cargo on board, the master must take precautions to prevent injury from dampness or mold, and to protect the deck load from the effects of snow and ice. | 680 | |
| A shipper who agrees that his goods shall be carried on deck, and assents to the manner of stowing and protecting them, cannot recover for an injury by rain, where all reasonable care was taken of them during the voyage. | 1002 | |
| The defense that the loss of cargo arose partly from a necessary jettison on account of perils of the sea and partly from a sale for necessaries must be established by clear and conclusive proof. | 648 | |
| Where the owner of a cargo of a sunken vessel raises it, after notice to the owner of the vessel, the expense of such raising may be allowed as damages in a suit for nondelivery | 425 | |
| Agency. | ||
| See “Principal and Agent.” | ||
| ALIENS. | ||
| See, also, “Courts.” | ||
| On a transfer of territory by one nation to another the political relations between the inhabitants of the ceded territory and the former government are changed. | 1346 | |
| Naturalized citizens of such ceded country, who owe allegiance, purely statutory, when released therefrom, are remitted to their original status. | 1346 | |
| Alien friends are entitled to claim the same protection of their rights in the federal courts as citizens. | 742, 744 | |
| APPEAL AND ERROR. | ||
| The allowance or nonallowance of costs in an admiralty case being a matter within the discretion of the court, is not a subject of appeal. | 814 | |
| The judges of the federal circuit court on a motion for a new trial cannot certify to a division of opinion at the trial itself, unless both were present. | 744 | |
| The limitation of the time for bringing writs of error to five years after rendition of the decree complained of (Act 1789, § 22) does not apply to writs of error coram nobis | 236 | |
| The allowance of an appeal to the supreme court relates back to the time when the original application was made to the judge of the circuit court, and entitles the party to a stay. | 1137 | |
| A writ of error is not a supersedeas unless served within 10 days after rendition of the judgment, irrespective of agreements of the parties for a stay of execution. | 1097 | |
| On a joint decree against respondents for a maritime tort there may be separate appeals where respondents have severed in their pleadings, or jointly pleaded a general denial. | 957 | |
| Form and sufficiency of record on appeal from a consular court of Japan to the circuit court for the district of California. | 815 | |
| A bill of exceptions which shows that the exceptions were taken for the first time four days after the verdict and judgment will not be considered. | 214 | |
| A statement by counsel of the evidence, not made a part of the bill of exceptions, though formally certified by the clerk, is no part of the record. | 214 | |
| The question of the admissibility of certain documentary evidence is not available where the same is not set forth in the bill of exceptions. | 116 | |
| The circuit court, on an appeal in admiralty, will not disturb the finding of the district court on a question of fact depending upon the weight of the testimony and credibility of witnesses, though differing from such court. | 425 | |
| New testimony, introduced on an appeal in admiralty, except under peculiar circumstances, 1361is not entitled to the same consideration as testimony introduced in the first instance. | 773 | |
| On an appeal in admiralty, where the question is purely one of fact depending upon the testimony of numerous witnesses, the judgment will not be reversed except for clear error. | 773 | |
| A bond on appeal from a judgment of the justice of the peace, conditioned on payment if the judgment of the justice is affirmed or more recovered on a trial de novo, is discharged where a judgment for a less sum is recovered. | 515 | |
| APPEARANCE. | ||
| See, also, “Courts”; “Removal of Causes.” | ||
| An appearance by attorney, and the filing of a plea to the jurisdiction by attorney, and not in person, is a submission to the jurisdiction. | 903 | |
| A special appearance, entered by the clerk upon the order book at the request of defendant's attorney, without leave of court, held an admission of jurisdiction. | 903 | |
| An appearance by defendant, shown by the record, cannot be denied by plea or otherwise | 1035 | |
| APPRENTICE. | ||
| An indenture, signed and sealed by a minor 15 years old, bound out by his father, is binding on him, though he is not named therein, and there are no covenants on his part. | 275 | |
| The order of the orphans' court to bind out an apprentice does not of itself create the relation of master and servant. | 55 | |
| ARBITRATION AND AWARD. | ||
| Under a statute authorizing county com missioners to refer the claims of a person to arbitrators, held, that the commissioners, had no authority to submit a part only of his claim without his consent. | 1313 | |
| An umpire provided for in an order of reference may be appointed before the referees have heard the evidence and discovered that they could not agree. | 503 | |
| An umpire must give notice to the par ties and to the arbitrators of the time and place of his proceeding to act. | 1147 | |
| An umpire must hear the parties | 605 | |
| After delivering their award, the arbitrators cannot again act upon the case with out new authority. | 650 | |
| An award is void which is not final and conclusive, and does not embrace all the matters submitted, and settle the dispute. | 650 | |
| Where one of the arbitrators has prejudged the cause, the award will be set aside. | 605 | |
| ARMY AND NAVY. | ||
| A person illegally conscripted into the federal army may be discharged on habeas corpus | 107 | |
| Under Act March 3. 1863. § 3. if a married man over 35 years of age be enrolled and drafted in the first class, he may be discharged by a federal court on habeas corpus. | 107 | |
| On habeas corpus to discharge an alleged minor, who swore on has enlistment that he was over 21, evidence may be given as to whether he understood what he was swearing to. | 134 | |
| A clerk in the employ of a paymaster of the United States army is in the military service, and subject to trial by court-martial for forging vouchers in the disbursement of a reconstruction fund. | 931 | |
| ARREST. | ||
| See, also, “Bail”; “Execution”; “Extradition”; “False Imprisonment.” | ||
| An inhabitant of Alexandria county, D. C, may be arrested in Washington county without a non est in Alexandria county. | 1060 | |
| A person arrested in a civil snit, and going to another state in virtual custody of his bail, may there be arrested in another civil suit, if his bail voluntarily relinquish all claim to his detention. | 413 | |
| ASSAULT AND BATTERY. | ||
| A man cannot lawfully push another off from his land without first requesting him to leave. | 1024 | |
| On the plea of not guilty plaintiff need not prove that defendant assaulted him first. Contra on the plea of son assault demesne. | 20 | |
| In a joint assault and battery a recovery in a suit against one is a bar to a suit against the other. | 576 | |
| ASSIGNMENT. | ||
| The equitable interest of a cestui que trust by way of contingent remainder is capable of assignment. | 362 | |
| An assignment of rents with a power of attorney to collect them as they become due is enforceable in equity, though the as signor die before they are collected. | 783 | |
| ASSIGNMENT FOR BENEFIT OF CREDITORS. | ||
| See, also, “Bankruptcy”; “Insolvency.” | ||
| Quære. whether, in Rhode Island, an insolvent assigning only a part of his property for the benefit of all his creditors may stipulate for a release. | 72 | |
| An assignment for benefit of creditors by a debtor absconding with a large sum of money is fraudulent as to creditors where it stipulates for a release as a condition of obtaining a preference under the assignment. | 72 | |
| An assignee in insolvency has no right to retain goods which were in the hands of his assignor for sale on commission, on which the latter had a lien as security on accommodation acceptances given to the owner after a tender of such acceptances and a demand of the goods. | 853 | |
| ASSISTANCE, WRIT OF. | ||
| A writ of assistance will not issue against persons who are not parties to the suit, or did not come in under them after suit commenced. | 1093 | |
| ASSUMPSIT. | ||
| A declaration in general indebitatus assumpsit for property sold and delivered is not supported by evidence of a sale and delivery under a special contract for a price named. | 643 | |
| Attachment. | ||
| See “Bankruptcy”; “Execution”; “Garnishment”; “Writs and Notice of Suits.” 1362 | ||
| ATTORNEY AND CLIENT. | ||
| An attorney chargeable with negligence is liable only to the extent of the injury his client has received. | 477 | |
| AVERAGE. | ||
| The right to receive contribution in general average is not founded on contract, but on a principle of equity. | 320 | |
| In the case of a vessel dragging her anchors towards the shore in a gale to avoid the danger of being beaten to pieces on rocks the master voluntarily slipped his cable, and allowed the vessel to be thrown on the beach. Held a general average loss. | 317 | |
| The rule that the shipowner is entitled to a commission upon the amount contributed for in general average, is rounded up on the law merchant, and is not controlled by a particular local usage in contravention thereof. | 320 | |
| A court of equity has jurisdiction to take an account of a general average loss, and decree contribution among those entitled to receive and bound to pay. | 317 | |
| BAIL. | ||
| See, also, “Arrest”; “Execution”; “Principal and Surety.” | ||
| Where there is no declaration, special bail will not be required unless plaintiff appears at the return of the writ. | 1028 | |
| If special bail be taken out of court by two justices of the peace by recognizance, there must be two sureties. | 937 | |
| No justification of bail is necessary where it is entered for the purpose of making a surrender. | 112 | |
| BAILMENT. | ||
| See, also. “Pledge.” | ||
| A sale by the bailee will not pass title to the property. | 280 | |
| BANKRUPTCY. | ||
| See, also, “Assignment for Benefit of Creditors”; “Compositions”; “Insolvency.” | ||
| See, also, “Bills, Notes, and Checks.” | ||
| Operation and effect of bankruptcy laws and of proceedings thereunder. | ||
| The date of the passage of the bankrupt act held to mean the date of its approval. (Act 1841, § 4.) | 826 | |
| The fact that an insolvent bank was extinct as a corporation, and its assets were being administered upon under decree of a state court when the petition was filed, will not prevent the bankruptcy court from entertaining jurisdiction. | 1135, 1139 | |
| A railroad corporation is a private commercial corporation within the meaning of section 37 of the bankrupt act. | 530 | |
| After the filing of a petition in bankruptcy no creditor can acquire a lien by attachment, judgment, levy, or otherwise on the property of the debtor which belonged to him at the time of filing the petition. | 1213 | |
| Attachments are dissolved by the proceedings without reference to the property on which they are levied, and an officer in possession under the attachment cannot retain the property until payment of his fees. | 2 | |
| A sheriff, where not restrained by the bankrupt court, may proceed to sell after the adjudication under a levy and advertisement of sale made before the adjudication. | 887 | |
| A debtor who has filed a voluntary petition, but objects to an adjudication, has no standing in the bankruptcy court on an application to enjoin a creditor from enforcing his claim by attachment. | 1210 | |
| After the bankruptcy of defendant, against whom a decree has been obtained in a state court operating as a lien upon his property, plaintiff cannot proceed under a state statute for a discovery of assets. | 727 | |
| State bankrupt laws. | ||
| Act La. March 14, 1842, in relation to the liquidation of banks, held in effect a bankrupt law, and superseded by the bankruptcy act of 1867 | 1135, 1139 | |
| The Louisiana laws relating to insolvency, insolvent debtors, etc., were superseded by the bankruptcy act of 1867 | 1135, 1139 | |
| State insolvent laws, which merely protect the person from imprisonment, and do not affect the contract, are not suspended by the bankrupt act. (Act 1841.) | 349 | |
| Jurisdiction of courts. | ||
| As to the powers of the district court in other districts than that in which the bankruptcy proceedings are pending. | 1213 | |
| The district court of a district other than that in which bankruptcy proceedings are pending may stay tie enforcement of a judgment within its jurisdiction, obtained in an action in the state court, commenced after the filing of the petition in bankruptcy. | 1213 | |
| The circuit court of a district other than that in which the bankruptcy proceedings are pending has not similar powers. | 1217 | |
| Register—Powers and duties. | ||
| No opinion will be given on abstract questions certified to the judge by the register. | 307 | |
| Commencement of proceedings—Voluntary bankruptcy. | ||
| The stockholders of a creditor bank are not parties in interest so as to be entitled to object to a decree | 677 | |
| One partner may petition for an adjudication against all the members after a dissolution of the partnership. | 209 | |
| The fact that such partner undertook to pay all the debts is immaterial, where the creditors did not accept him as their sole debtor | 209 | |
| ——Involuntary bankruptcy. | ||
| A petition which alleges as the act of bankruptcy the failure to pay commercial paper maturing after December 1, 1873, filed be fore the expiration of 40 days from such maturity, is prematurely filed, and cannot be amended. | 1312 | |
| A refusal to pay commercial paper at a date prior to that stated in the petition can not be given in evidence. | 582 | |
| The admission of a fact from which a fraudulent intent will be inferred will be given full effect, though it be coupled with a denial of such fraudulent intent | 454 | |
| The construction and sufficiency of pleadings depend upon the rules of the court in which the petition is pending | 454 | |
| Acts of bankruptcy. | ||
| It is not an act of bankruptcy for one partner to influence or procure the departure of another from the state. | 852 | |
| The making of conveyances in contemplation of bankruptcy and to prefer creditors, which are declared void by section 2, Act 1841, are acts of bankruptcy. | 66 | |
| Giving a warrant of attorney to a mere indorser, whereby he secures a priority, is not to be considered an involuntary act, so as to prevent it from being an act of bankruptcy, for an indorser has no legal power of coercion. | 66 | |
| A refusal on the ground of a legal defense is not a stoppage or suspension within the meaning of the act | 1019 1363 | |
| A refusal to pay commercial paper made in good faith on the ground of a valid defense or a defect in the title of the holder is not an act of bankruptcy. | 582 | |
| When the stoppage of payment of commercial paper is fraudulent, it is not necessary that it be continued, and a suspension of payment for 14 days, though without an element of fraud, constitutes an act of bankruptcy | 1019 | |
| A note, given by a merchant for money loaned payable to his own order on demand, and duly indorsed by him, is “commercial paper” | 582 | |
| A stipulation in a suit at law upon a note giving time to plead does not operate as an extension of time upon the note, as against the bankrupt act. | 582 | |
| Adjudication. | ||
| An adjudication against a firm by a partner on his voluntary petition, where the firm had been dissolved by the death of a copartner, is void. | 835 | |
| An adjudication against a firm, obtained by one partner on his voluntary petition, without giving the notice required by Sup. Ct, Rule 18, is void. | 835 | |
| A surviving partner may be adjudged bankrupt on an act of bankruptcy committed by him in administering the partnership assets, although the separate estate of the deceased partner will pay all his debts, joint and separate. | 4 | |
| Where the debtor in involuntary proceedings indorsed on the copy of the petition served on him an admission of the truth of its allegations, except those relating to fraud, but before the day to appear filed an involuntary petition, and was adjudicated a bankrupt thereon by the register, held that the adjudication was void and an adjudication would be made in the involuntary proceeding | 51 | |
| An adjudication entered upon a confession of the acts of bankruptcy charged can not be set aside after the death of the bankrupt on the application of a creditor who has proved his debt. | 932 | |
| A creditor not appearing to the petition in bankruptcy is not estopped from denying the acts of bankruptcy charged so far as they affect him with notice. | 932 | |
| Assignee—Election, appointment, and removal. | ||
| The mortgagee of a homestead may vote on the choice of an assignee on his whole claim. | 89, 861 | |
| A motion by the bankrupt to set aside the appointment of an assignee can only be entertained by the district judge upon notice, and not by the register | 134 | |
| ——Rights, duties, and liabilities. | ||
| Neither the court nor register is the general adviser of the assignee in his dealings with the assets | 307 | |
| Assignees are chargeable with interest on all moneys which they have collected, if not paid into the registry within 60 days after it is received. (Act 1841.) | 1153 | |
| The assignee is not liable for rent accruing after the adjudication unless he elects to accept a lease, and occupation of leased premises independently of the lease is not evidence of such an election | 844 | |
| Property of bankrupt—What constitutes. | ||
| A certificate of membership in a board of trade held not an asset which would pass to the assignee | 453 | |
| The franchise of a bankrupt railroad company is property of such company subject to sale in the bankruptcy proceedings. | 530 | |
| The property of minor children accumulated by their sole exertions with their father's consent which has always stood in their names does not pass to the assignee. | 825 | |
| ——Custody and control. | ||
| The bankrupt, after filing his petition, has no right to sell any of his property even to raise money to pay lawful fees. | 1021 | |
| An assignee under a general assignment under a state law which is avoided by proceedings in bankruptcy must turn over all the property and proceeds to the assignee in bankruptcy, and cannot deduct compensation for his services. | 274 | |
| Where a surviving partner is adjudged bankrupt on an act of bankruptcy committed in administering the partnership assets, the messenger will take possession of the joint assets in his hands, and also of his separate property. | 4 | |
| ——Exemptions. | ||
| The bankrupt was allowed to retain from the proceeds of a mortgage fraudulently transferred the amount paid counsel for preparing his petition and schedules, and the amount determined by the assignee for the temporary support of himself and family, but not the probable expenses of procuring his discharge. | 1021 | |
| The assignee has a discretionary power, under section 14, Act 1867, in setting apart “other articles and necessaries,” and his action will not be reversed unless an abuse of authority plainly appears. | 917 | |
| The exemption of “other articles and necessaries” cannot include manufactured articles kept for sale. | 917 | |
| Real estate cannot be set apart as exempt under the head of “articles” or necessaries” | 1144 | |
| No individual exemption can be allowed out of the partnership estate at the expense of the joint creditors. | 51 | |
| Property exempt by the laws of the state where-the bankrupt resides and where the petition is filed will be secured to him, wherever it may be situated, and whether exempt by the law of its situs or not | 2 | |
| In Kansas the whole house occupied as a home by the bankrupt is exempt, though a portion of it is used, and was constructed with a view to be used, for a brewery. | 861 | |
| When the bankrupt and his family do not keep house, but are boarding, money may be allowed by the assignee for their temporary subsistence | 1114 | |
| Where the bankrupt's application to the assignee for an exemption is refused, the proper way of bringing the matter up is by exception to his decision | 917 | |
| ——Liens. | ||
| Where other courts have taken full jurisdiction of property on which liens are asserted, the bankruptcy court will not in general interfere | 674 | |
| The United States are not bound by the general equity rule for marshaling assets, nor by the rule prescribed by the bankrupt act in conformity thereto, any further than as that rule is founded in the particular case on the lien of the several parties inter sese | 224 | |
| A judgment obtained by the United States against persons composing a bankrupt firm, though for a debt on which one of the partners was liable as principal and the other as surety, is entitled to priority over all partnership creditors | 224 | |
| The proceeds of goods levied on by execution under judgments whose validity is not disputed, and afterwards seized by the marshal under the warrant in bankruptcy, must first be applied to such judgments. | 574 | |
| An execution against the bankrupt delivered to the sheriff prior to the filing of the petition, but not levied, gives a valid lien as against the assignee who took possession of the bankrupt's property before the return day of the execution | 114 | |
| The lien of a prior unlevied execution is divested by a seizure of goods by a marshal 1364under warrant in bankruptcy proceedings | 1276 | |
| Liens of judgments obtained after the execution of a general assignment valid by the state laws or at common law which is set aside at the instance of the assignee in bankruptcy are not valid against him where they would not have attached had the assignment been allowed to stand | 838 | |
| ——Sale. | ||
| Lien creditors are not bound by the sale of lands which were subject to their liens, where their priorities were not first definitely ascertained on personal notice to them | 674 | |
| A person claiming title under a deed from commissioners under the bankrupt law of 1800 must show their authority, and that their proceedings were regular | 936 | |
| Proof of debts—What is provable. | ||
| A judgment for a fine is not a provable debt | 456 | |
| A person, who in good faith purchases claims against a bankrupt with the intention of stopping proceedings and giving him time, may prove them | 212 | |
| The beneficiaries of a trust fund, invested by the executor in his partnership business with the knowledge and consent of his co partner, may prove their claim against the partnership, although they have proved it against the estate of the executor | 866 | |
| Fiduciary debts are provable equally with other debts, and, if the creditor elect to prove such debts, they will be barred by a discharge. (Act 1841.) | 826 | |
| Creditors recovering judgment after the adjudication need not vacate their judgments in order to prove the claims on which they were rendered | 1 | |
| ——Secured debts. | ||
| A creditor of a firm holding security on the separate property of a partner may prove the claim against the joint assets without releasing such security | 923 | |
| A creditor secured by mortgage may apply to the court to have the property sold and the proceeds applied on his debt. If in sufficient to extinguish it, he may prove for the unpaid part | 50 | |
| ——Procedure. | ||
| Proof of claim cannot be made before a notary | 231 | |
| A creditor residing in the judicial district where the proceedings are pending must prove his claim before the register of that district. | 231 | |
| The deposition of a creditor residing in another district must be taken before a register in that district; and, where residing in a foreign country, before a minister, consul, or vice consul of the United States | 231 | |
| Claims purchased for the purpose of stop ping proceedings against the bankrupt should be proven as of the date of adjudication, but may draw interest to date of actual payment | 212 | |
| The register may postpone, until the choice of an assignee, the proof of a debt, in respect to the validity of which a doubt has arisen on the ground of a preference | 1 | |
| Examination of bankrupt, etc. | ||
| The register has no power to limit in advance the time for the conclusion of the examination of the bankrupt | 1219 | |
| On the examination of a witness respecting the bankrupt's estate on the application of a creditor, other creditors have no right to intervene and object to questions put | 340 | |
| On such examination the witness is not entitled to counsel, and he may be compelled to answer questions respecting his transactions with the bankrupt | 340 | |
| Page The bankrupt's attorney may attend the examination, and object to improper questions put to the bankrupt, but the latter has no right, without consent of the magistrate, to consult his attorney before answering | 687 | |
| Costs: Fees: Disbursements. | ||
| Marshal's bill of costs considered | 640 | |
| The register may require that his lawful fees for conducting an inquiry instituted by a creditor should be paid or secured before entering thereon | 1209 | |
| An assignee under a general assignment under a state law, which is avoided by proceedings in bankruptcy, will not be allowed compensation or expenses out of the fund | 274 | |
| The assignee will not be allowed for auctioneer's charges in making a sale, unless he show a necessity for his services | 543 | |
| Discharge—Proceedings to obtain. | ||
| The court may allow the bankrupt to withdraw his petition, and file a new one at a later day | 480 | |
| The final oath of the bankrupt need not be made or filed until the hearing | 457 | |
| The 50 percent, clause is not operative against a bankrupt if the fair cash value of the assets turned over to the assignee is equal to 50 per cent, of the claims proved on which he was liable as principal debtor. | 1020 | |
| Amounts paid to lien creditors are not to be deducted before ascertaining the requisite percentage of assets to entitle the bankrupt to a discharge | 619 | |
| In ascertaining such percentage the property is to be taken at its value at the time the petition is filed | 619 | |
| A debt due from a bankrupt under an agreement made on the surrender of a lease for a term, that he would pay any deficiency arising on a reletting by the landlord, will be considered as contracted at the time of such agreement (Act July 14, 1870), and not at the time a judgment was obtained therefor | 552 | |
| Under Act July 27, 1868, the discharge is not contingent upon the amount of dividends actually received by the creditors | 1020 | |
| The pendency of an examination of the bankrupt is good cause for an adjournment of the proceedings on an order to show cause why the bankrupt should not be discharged | 1018 | |
| ——Proceedings in opposition. | ||
| A person having an equitable claim against the estate may oppose the discharge. (Act 1841.) | 826 | |
| A creditor cannot oppose the discharge unless he enter his appearance in opposition thereto within the day appointed for showing cause against the petition therefor | 457 | |
| In the ease of an adjournment on the re turn day of the order to show cause the time to file specifications of objection will run from the adjourned day | 678 | |
| Where there is no opposing party, the proceedings may be continued from day to day to suit the convenience of the bankrupt | 457 | |
| A creditor who has duly appeared in opposition cannot move to dismiss the petition for want of prosecution, but should move to set it down for hearing | 457 | |
| ——Acts barring. | ||
| It is no bar to a discharge that the debt was contracted by fraud 134. | 678 | |
| It is no objection to the discharge that the bankrupt paid the expenses of making proofs of claims against his estate | 480 | |
| A decree in a suit in a state court between a creditor and defendants, of whom the bankrupt was one, declaring a conveyance by the bankrupt void as in fraud of creditors, is not conclusive when such con veyance is set up by the creditor in bar of the discharge | 382 1365 | |
| The existence of fiduciary debts, contracted by the bankrupt before the passage of the act, will not prevent his discharge, as to debts not of a fiduciary character. (Act 1841.) | 826 | |
| Misapplication of fiduciary funds after the passage of the act deprives the bankrupt of all right to a discharge from any debts whatever. (Act 1841.) | 826 | |
| The omission of a particular debt from the schedule, unless intentional and fraudulent, will not bar a discharge. (Act 1841.) | 826 | |
| The fact that a firm carrying on business and borrowing money in connection with a farm is a large stockholder in a manufacturing corporation does not make its members merchants or tradesmen, so that failure to keep books of account will prevent their discharge | 77 | |
| “Tradesman,” in the bankrupt act, is limited to a small merchant or shopkeeper | 77 | |
| ——Scope and effect. | ||
| The terms of a discharge, however general, cannot affect the rights of a creditor to whom the bankrupt owed a debt in a fiduciary capacity, who did not prove the same. (Act 1841.) | 826 | |
| A surety on a guardian's bond is not among the class of persons not affected by a discharge. (Rev. St. § 5117.) | 727 | |
| An injunction issued by the bankruptcy court, staying proceedings against the bankrupt in a state court until the question of final discharge should be determined, is ipso facto dissolved by the granting of the final discharge | 932 | |
| ——Vacating: Setting aside. | ||
| Creditors moving to set aside a discharge cannot prove at the trial acts of the bankrupt not set forth in the specifications | 848 | |
| Upon a motion to set aside a discharge the bankrupt's wife cannot be required to testify as a witness against him | 848 | |
| Prohibited or fraudulent transfers. | ||
| A security, given when insolvent, under an agreement made when solvent, and when the debt was contracted, is not void able as against creditors | 194 | |
| Where, under the local law, a deed does not take effect as to creditors and subsequent purchasers until it is recorded, a deed recorded within six months of the commencement of bankruptcy proceedings, irrespective of the time when it was executed, is a transfer within six months | 1143 | |
| A mortgage upon a stock in trade, made within four months of the petition in bankruptcy, may be good in so far as it was given to secure advances then made, and invalid in so far as it was given to secure a pre-existing debt | 199 | |
| A mortgage given to secure existing indebtedness and possible future loans, as to which no definite agreement was made, held fraudulent and void as to creditors | 1352 | |
| A creditor who, with reasonable cause to believe the debtor insolvent, takes a judgment note more than six months before the petition is filed, cannot obtain a preference by the entry of a judgment and the levy of an execution on the debtor's stock of goods within such time | 849 | |
| A judgment obtained within four months before the filing of a petition in bankruptcy in proceedings to subject a fund to the payment of a judgment against the bankrupt held void, and the judgment creditor, having received the fund, less the costs of his action, is liable for the whole amount | 233 | |
| Taking property on attachment or execution is receiving a preference, but merely recovering judgment is not | 1 | |
| A general assignment of all the debtor's property in trust, first, to pay the debts of certain creditors in full, and to apply the balance pro rata to the debts of the others, where the property is insufficient to pay all in full, is fraudulent on its face | 110 | |
| Property assigned in fraud of the act, though under a general assignment for the equal benefit of all creditors, made in strict compliance with the insolvent law of the state, may be recovered by the assignee | 835 | |
| A person is held to be insolvent when he is unable to discharge his debts in the usual course of business of persons engaged in the same trade or occupation | 216 | |
| Creditors who have to resort to legal measures for the collection of accounts long over due will be held to have reasonable cause to believe the debtor insolvent | 216 | |
| Proof that the bankrupt, while insolvent, paid or secured defendant in full, without making adequate compensation to his other creditors, casts upon defendant the burden of showing that he did not know at the time that the bankrupt was insolvent | 110 | |
| The payee and indorser of a note paid by the maker in the usual course of business to the holder, is not chargeable with taking a preference where he had nothing to do with the payment, although he knew of the maker's insolvency | 982 | |
| The rule would be otherwise if the indorser procured such payment to be made by the maker with intent to give a preference | 982 | |
| Payment to depositors by insolvent bankers is not made good by the fact that the debtors acted under advice of counsel to save a criminal prosecution | 214 | |
| Suits and proceedings in relation to the estate. | ||
| The circuit court has no jurisdiction of a bill by the assignee of a bankrupt firm against the assignee of a member thereof to require him to pay complainant a surplus after individual creditors are satisfied | 6 | |
| The district court has jurisdiction, under Rev. St. § 4970, of a suit by creditors against the assignee of a bankrupt member of a firm to procure an adjudication of their debts and their right of priority as against individual creditors, and may give complete relief therein | 511 | |
| A summary petition by the assignee, and not a plenary suit, is the proper remedy against the bankrupt to recover property illegally withheld by him | 527, 1021 | |
| A proceeding to compel the bankrupt to deliver to the assignee a policy of insurance on his life, which he claimed to have transferred to his son before the bankruptcy, must be by plenary bill | 1 | |
| The assignee may proceed by summons or petition upon a forthcoming bond, and need not resort to a plenary suit | 165 | |
| Goods seized by the marshal were delivered to a purchaser from the bankrupt on his giving a forthcoming bond. A decree setting aside the sale as fraudulent was finally affirmed in the supreme court The purchaser being insolvent, held, that the assignee might proceed either upon the forthcoming bond of one of the appeal bonds, and without first enforcing the same against the estate of the purchaser | 165 | |
| A bill in equity by the assignee is not demurrable on the ground that he has a complete remedy at law, where the facts show that questions of fraud, trust, and partnership are all involved in the case at issue | 789 | |
| In the case of property held by defendant under claims in different rights, held, that a suit in the form of a creditors' bill was the proper remedy | 176 | |
| The fact that there are other creditors of defendant is no objection to the assignee's bringing a suit to recover assets in the form of a creditors' bill | 176 | |
| The circuit court will entertain a bill by an assignee against several mortgagors and other 1366lienholders to ascertain the amounts due, and sell all the property free from incumbrances | 459 | |
| The cause of action by a trustee in bankruptcy to recover a payment made by the bankrupt of money, the title to which was in an assignee under a general assignment, held, did not accrue, under Rev. St § 5057, until he became vested with the title of such assignee under a decree setting the assignment aside as void under the bankrupt act | 695 | |
| Review. | ||
| Any lien creditor may appeal from a decree affecting his rights to the supervisory jurisdiction of the circuit court | 674 | |
| A bill or petition under Act 1867, § 2, for a review of an adjudication of bankruptcy may be heard by the circuit judge in chambers at any place within the circuit, whether within or without the district where the bankruptcy proceedings are pending | 1139 | |
| On a revisory petition to the circuit court the case will not be taken up de novo, but the error complained of must be particularly set forth | 452 | |
| On an appeal by a creditor from a decision of the district court rejecting his claim the case is reconstructed in the circuit court, and the issues are made up and tried in the same way as if the case were originally commenced in such court | 93 | |
| On a trial of a claim upon a judgment, matters which were available to the bankrupt as a defense in the original suit cannot be setup | 93 | |
| On an appeal by a creditor from the decision of the district court rejecting his claim, where a declaration and plea are filed, the creditor has a right to a jury trial | 920 | |
| Such right will not be held to have been waived where the appeal is inadvertently submitted, and decided as if the cause had been brought up by writ of error | 920 | |
| Arrangement with creditors: Composition. | ||
| The president of a bank, which claimed to be entitled to a preference, is not a proper person to be a member of the committee of creditors | 339 | |
| A receiver appointed in proceedings in a state court, which were one of the grounds upon which the adjudication was made, is not a proper person for trustee | 339 | |
| An excuse of a bankrupt for failure to at tend an adjourned meeting in composition proceedings, that he had already been subjected to an exhaustive examination, and that his business required his constant attendance, held sufficient | 1208 | |
| Where a resolution of composition has been adopted and confirmed by the requisite number of creditors, the right of a creditor to examine the bankrupt under Rev. St. § 5086, is suspended | 1212 | |
| As to the power and duty of the register in permitting the examination of the bankrupt or suspending a pending examination | 1209 | |
| The refusal of permission to take a copy of the inventory, which is at all times accessible to the creditor, is not prejudicial | 1212 | |
| The refusal of the register to proceed with the examination of the debtor until his fees are paid or secured is no ground of opposition to the recording of a resolution of com position | 1212 | |
| It is a substantial objection to the approval of a resolution of creditors, under section 43, Act 1867, appointing a trustee and committee to supervise his action, that the committee is composed of only two, one of whom is the trustee | 88 | |
| Amending and repealing acts. | ||
| The clauses in the bankrupt law which give the power to an assignee to sue for and recover the amount of unlawful preferences are not subject to the rule of construction applied in cases of repeal of penal statutes | 1297 | |
| The amendment of June 22, 1874, is in applicable to a suit in equity by the assignee to recover a fraudulent preference in compulsory proceedings commenced prior to December 1, 1873 | 982 | |
| The amendment of 1874, substituting the word “knew” in place of the words “had reasonable cause to believe,” as applied to vendees of insolvents, is inapplicable to proceedings in bankruptcy commenced before December 1, 1873 | 1297 | |
| An adjudication after the amendment of 1874, where the petition was filed before such amendment, must be in accordance therewith | 730 | |
| BANKS AND BANKING. | ||
| The holder of bank bills is entitled to be paid in specie, by weight, the amount of such bills, upon a demand within the usual banking hours of the bank | 346 | |
| The bank is bound to keep its money counted or weighed, or to employ servants sufficient to count or weigh it, so as to pay all demands made within the usual banking hours | 346 | |
| One bank demanding payment of the bank bills of another is not bound to receive its own bills in payment, but may demand specie | 346 | |
| Where a bank, having a large amount in Dills of another bank, by agreement with it placed the same in the hands of a third party as collateral, and the other bank drew drafts on New York, also advancing additional collateral to pay possible expenses of protest, held, in an action on the drafts, that the agreement was not pleadable in bar, the drafts having been taken as payment | 79 | |
| A loan by a national bank in excess of the restriction (Act June 3, 1864, § 29) is not void; but making such a loan subjects the bank and its officers to the forfeitures and penalties prescribed in section 53 | 568 | |
| It is no defense to a suit by the receiver of a national bank against a stockholder to recover the amount of an assessment made by the comptroller of the currency that the assessment was not needed by the receiver | 254 | |
| BILLS, NOTES, AND CHECKS. | ||
| Interpretation. | ||
| A note absolute on its face may be made payable on conditions by a separate agreement as between the original parties, and an assignee with notice is affected with existing | ||
| equities | 963 | |
| Cheeks. | ||
| A cheek in the hands of the payee, before presentation, acceptance, or payment, is not an assignment of any part of the fund in the hands of the drawee | 214 | |
| Indorsement and transfer. | ||
| A collateral agreement between the par ties to a negotiable note that it is to be paid only on certain conditions cannot be set up in defense to a suit by a bona fide transferee for value, though a state statute provides that the maker may set up any defense against the assignee which he could make against the payee | 964 | |
| Query whether an indorsement of the negotiable paper must be proved to have been made before it became due | 271 | |
| Demand: Notice: Protest. | ||
| A promissory note transferred by indorsement after maturity is payable on demand, and demand and notice are necessary to charge the indorser, though he knew the 1367maker to be insolvent at the time of indorsing it | 57 | |
| In the case of a joint and several promissory note, a demand must be made upon both makers to charge the indorser, though one resides in another state | 725 | |
| Release or discharge of indorser. | ||
| An indorser on the notes of a bankrupt is not discharged by an extension of time given to the bankrupt by the holder | 1206 | |
| Actions. | ||
| After a note is taken up by the indorser its negotiability ceases, and his assignee can not sue in his own name | 515 | |
| A person cannot sue as an indorsee unless he be the owner of the note, or have some legal or equitable interest therein. A mere agent, to whom a note is indorsed by his principal for the benefit of the latter, cannot maintain such suit | 894 | |
| Under the provision of the Indiana statute giving the indorsee a right of action against the indorser, after having used due diligence to obtain the money, the indorsee of a note secured by a mortgage on lands in another state need not first exhaust such security | 572 | |
| Want of consideration for a subscription to a college endowment fund is no defense to a note given in settlement thereof | 308 | |
| A declaration on a note made payable at a particular place need not aver that the note when due was presented at such place for payment | 1033 | |
| An agreement made on the indorsement in blank of a dishonored note, that the indorser should not be liable except on the maker's insolvency, may be shown by parol | 804 | |
| BILL OF LADING. | ||
| See, also, “Admiralty” “Affreightment” “Carriers” “Demurrage” “Shinning.” | ||
| The bill of lading, though not conclusive, is strong evidence of the apparent condition of the cargo | 680 | |
| A bill of lading may be explained by showing that the goods receipted for as shipped were in fact returned to the shippers | 469 | |
| A bill of lading, signed by the purser, who was not authorized to sign bills of lading, for goods not entered on the ship's manifest nor stowed with the other freight, acknowledging freight paid, may be contradicted by showing that the goods were carried as a personal favor to the owner, and no freight was expected to be paid | 342 | |
| A person to whom a bill of lading is as signed as security for the payment of goods purchased of him by the shipper, under said bill of lading, is not liable to the shipowner for the freight | 549 | |
| A person to whom a draft secured by a bill of lading is made payable as “cashier,” for the purposes of collection, may proceed against the vessel in his own name for a wrongful delivery of the cargo to another | 886 | |
| The indorsee of the shipper's bill of lading, who cashed a draft on the consignee on the faith thereof, may recover the amount of the draft, with interest, against the vessel which delivered the goods to the consignee without production of the ship per's bill of lading 884, | 886 | |
| A master having stipulated by bill of lading to deliver cargo to a certain consignee, afterwards signed a second bill of lading by which he stipulated to deliver a certain part of the cargo to plaintiff as security for money subsequently borrowed of plaintiff by the shipper. Held that, if he delivered all the cargo to the original con signee, he was liable to plaintiff for failure to deliver the stipulated part to him | 81 | |
| BONDS. | ||
| See, also, “Principal and Surety” “Railroad Companies.” | ||
| The marshal may include his commissions in a forthcoming bond, and is also entitled to commissions upon an execution on the bond | 935 | |
| A defective forthcoming bond will, at plaintiff's request, be quashed, as well as the execution upon which it was founded | 471 | |
| A forthcoming bond, given by mistake for less than the judgment, may, on plain tiffs motion, be quashed on paying costs of the motion | 20 | |
| BOTTOMRY AND RESPONDENTIA. | ||
| Authority to raise money upon the vessel itself in the absence of other means is implied where the owner refuses to pay a bill given for supplies furnished, and sends the creditor to demand payment from the master in a foreign port | 937 | |
| The consignee of a vessel may apply the proceeds of a cargo and the freight to pay sums due on account of its purchase, with out affecting his right to take a bottomry bond from the master for supplies subsequently furnished | 937 | |
| The necessity for supplies to support a bottomry bond need not have been so urgent that the vessel must have been lost to the owner without them | 937 | |
| BOUNDARIES. | ||
| A boundary “on,” “by,” or “to” to a stream, includes the land at least to low water mark | 946 | |
| A boundary “on” the bank of a river, referring to fixed monuments of the bank, limits the grant to the bank, and excludes the flats below it | 946 | |
| Where the land, according to a plan referred to in the deed, is bounded “on” a river, with no other specific boundaries, the flats will pass by operation of law | 946 | |
| Bounties. | ||
| See “Fisheries.” | ||
| CARRIERS. | ||
| See, also, “Affreightment” “Average” “Bill of Lading” “Charter Parties” “Demurrage” “Shipping.” | ||
| Gamblers and monte-men, whose purpose in traveling upon a train is to ply their vocation, may be excluded | 1192 | |
| A regulation by a railroad company that canal boats unloading coal at its dock to be received on its cars there should employ its shovelers and rent its hoisting tubs at certain rates, being the usual market price, held unreasonable | 1163 | |
| CHARTER PARTIES. | ||
| See, also, “Admiralty” “Affreightment” “Average” “Bill of Lading” “Demurrage”:' “Shipping.” “ | ||
| A vessel chartered on a time charter for a voyage at a specified rate must sail without unnecessary delay, and proceed with all reasonable dispatch to her destination | 343 | |
| Damages for a breach of such obligation are the difference between the fair market values of the cargo when it ought to have 1368been delivered, and at the time when the vessel actually arrived | 343 | |
| Under a charter party for a voyage to a certain port, or, in case it be blockaded, to a market and return, the vessel is not liable for the time necessarily consumed in the deviation to ascertain whether the port of destination was blockaded | 132 | |
| Insufficient sail, resulting in lost time on the voyage, held would render the vessel liable for subsequent injury and loss of the cargo, where she was obliged to put into port within 200 miles of home in anticipation of heavy weather | 995 | |
| The vessel is not liable for a loss or dam age on account of the deck storage, where it must have been contemplated from the very nature of the cargo that it should be stored on deck | 647 | |
| But where the loss arises, not on account of the cargo being stored on deck, but be cause it was improperly secured, the vessel will be held liable | 647 | |
| The master will be held negligent in not keeping a vigilant watch while at anchor, and in not being prepared to drop a second anchor when his chain parts in a sudden blow | 995 | |
| CHATTEL MORTGAGES.. | ||
| See, also, “Bankruptcy.” | ||
| Registry notice in New York of a chattel mortgage on a vessel does not affect third persons unless the owner continued to re side in the state | 952 | |
| A renewal notice in New York subsequent to Act July 29, 1850, is ineffectual unless the mortgage be also recorded in the office of the collector of the port | 952 | |
| COLIIISIOUR. | ||
| See, also, “Admiralty” “Pleading in Admiralty” “Practice in Admiralty” “Shipping” “Towage.” | ||
| Nature of liability: Contributive fault. | ||
| A steamboat unavoidably injuring another in the confusion incident to an attempt to extricate her from a threatened conflagration, will not be held responsible for the damage | 34 | |
| The master of a vessel will be held justified in bearing down on another vessel to leeward, which has hoisted her colors, as if to speak him, if it is the custom to do so | 156 | |
| A vessel will be held at fault for racing under full sail with another vessel on a dark night, when other vessels on the same course have taken in their light sails | 1001 | |
| The relative situation of a vessel, and the probability of a change therein at the time that a course is decided upon by another, will determine the question of negligence of the latter | 992 | |
| Rules of navigation. | ||
| The ordinary rules of navigation designed to prevent collision are binding on fishing vessels while engaged on their fishing grounds | 381 | |
| The rule of navigation on the Ohio river, giving the ascending boat the right to choose her course, does not give her the right where the boats are on opposite sides of the river with ample water between, unnecessarily or capriciously to require the decending boat to change her course | 1155 | |
| The ascending boat on the Ohio river should not cross the channel, when a descending boat is so near as to involve risk of collision | 1155 | |
| Between sail vessels. | ||
| In the case of sail vessels having the wind free, the one on the port tack must give way | 1001 | |
| In the case of vessels sailing on meeting courses nearly opposite, where both have the wind free and neither ports her helm, as required by Admiralty Rule 11, both will be held in fault | 588 | |
| Query, whether such rule is applicable in the case of sailing vessels meeting end on, or nearly so, one being closehauled and the other sailing free | 588 | |
| Vessels moored, etc. | ||
| A vessel moving out of a pier, where other vessels are moored alongside, is charged with the duty of seeing that all lines are unfastened | 1145 | |
| A canal boat lying at a pier is not bound, at the request of the master of a tug taking another boat out of the slip, to get out extra fastenings to prevent the canal boat breaking loose by the pressure of the tug carried against her by the tide | 1304 | |
| A vessel lying near to, but not moored at, a wharf, without a signal light, and with her boom rigged out board, is responsible for a collision with another vessel moving prudently to her accustomed berth | 80 | |
| A vessel anchored within 300 yards of the Battery, at night, without a light or a watch on deck, held solely liable where injured in a collision with a steamboat rounding the Battery in the usual manner to make her pier at Cortlandt street | 881 | |
| Tugs and tows. | ||
| In the case of a collision by a tow, where there is no proof as to the agreement for towage or the local usage, the tug will not be presumed to have been under the control of the tow | 487 | |
| Tug held liable for collision by stern tow with schooner anchored in the St. Clair river for an attempt to pass the bend in the river with more than one vessel in tow | 487 | |
| River and harbor navigation. | ||
| A steamer will be held in fault for running at a speed of 17 miles an hour in the night time, through a crowd of vessels, whose lights are seen by her | 594 | |
| A vessel which attempts to haul by another grounded in the entrance to a dock, after being warned that there is not room enough, is liable for all injuries caused by her jamming | 242 | |
| A vessel aground in a narrow channel, in a situation to permit of other vessels passing her in safety, should, on the approach of another, cease her efforts to get off, until such other vessel has passed | 992 | |
| It is not a fault for a tow to enter the channel of St. Clair Flats while another tow is coming through in an opposite direction | 541 | |
| Lights, signals, etc. | ||
| The vessel which did not carry the statutory lights is prima facie at fault | 773 | |
| The absence of lights on a canal boat just after sundown, when they would not have afforded any aid in discovering her, is not a fault | 1267 | |
| Neglect by a vessel, having the right of way, to show the regulation lights, does not relieve another vessel from observing the rules of navigation, and using all practicable precautions to avoid a collision | 554 | |
| A tug, lying in the open lake, waiting for a tow, and exhibiting colored lights, is held to the responsibility of a steamer under way | 413 | |
| Lookouts: Officers, etc. | ||
| A tug with her captain on deck and a man at her wheel, and no other lookout, has not a proper lookout | 1267 1369 | |
| The failure of the lookout of a sail vessel to reannounce the colored lights of another vessel, which was not under way, held not a fault | 413 | |
| The officer in charge of a sail vessel, whose lookout has reported a light in such a position that there is no apparent danger of a collision, is nor at fault in leaving the future watching of such light to the lookout | 413 | |
| Particular Instances of collision. | ||
| Between steamer and schooner, where the latter's torch was mistaken for that of a pilot boat, and the steamer continued to bear down upon her, instead of changing her helm, or stopping until she found out the schooner's course, and was held solely in fault | 1305 | |
| Between steamer and schooner, where the latter's lantern was not seen through the negligence of the steamer's lookout, and the steamer was held solely in fault | 1351 | |
| Between bark and tug lying at rest in Lake Huron, where the latter, exhibiting colored lights, was held solely at fault in not getting out of the way | 413 | |
| Procedure. | ||
| A proved fabrication of evidence, unexplained, will compel an adverse decree | 1266 | |
| Damages denied for want of preponderating proof in a great conflict of evidence | 381 | |
| Rule of damages. | ||
| The value of a cargo of bone and oil lost in the Arctic Ocean is to be estimated at its market value in the home port of the vessel at the time when it would ordinarily have arrived there, if shipped at the time and from the place of the collision | 554 | |
| In the case of a cargo of coal sold at private sale without notice to the parties charge able for the damages, held, that the loss shown thereby was recoverable, but the practice was disapproved | 996 | |
| The loss of a vessel, abandoned by an experienced and capable master in good faith, is to be taken as a total loss, although the other vessel, almost as badly injured, succeeded in reaching port | 554 | |
| Demurrage is allowed from the time the injured vessel is necessarily detained, if she has lost employment | 242 | |
| A collier, during the busy season, may be presumed to have lost employment | 242 | |
| Demurrage held not recoverable for the time lost by the vessel being frozen in while undergoing repairs at the place to which she was taken | 996 | |
| In estimating the damages to a ship on a whaling voyage, demurrage is to be allowed for the time she is in port undergoing repairs | 555 | |
| The pro rata share of the net earnings of an association of vessels, based upon the valuation on each vessel, held a proper basis for demurrage, where one of the vessels was injured in a collision | 422 | |
| The services of other vessels of an association, of which the injured vessel was a member, furnished a person under a contract for raising the vessel at a specific sum, are proper items of expense | 422 | |
| The salary and board of the master of a vessel while superintending her repairs held a proper charge | 422 | |
| Division of damages. | ||
| Where libelant has been guilty of gross fault, and that of respondent is in any degree doubtful, a decree for division of damages will not be rendered | 413 | |
| It being the usage in New York harbor to run steamboats in a dense fog, where two steamboats collided when running at the same speed the court will not hold either vessel at fault, and a division of damages will not be decreed | 586 | |
| COMPOSITIONS. | ||
| See, also, “Bankruptcy.” | ||
| A settlement with a debtor by accepting an offer of compromise, with a proviso that no other creditor should receive better terms, is not vitiated by the debtor's afterwards voluntarily paying some of his other creditors in full | 307 | |
| CONFLICT OF LAWS. | ||
| The forms or modes of remedies in one state to enforce contracts are not regarded in other states | 1312 | |
| CONSTITUTIONAL LAW. | ||
| Transportation of freight and passengers from one state to another, or through more than one state, either by land or water, is interstate commerce | 530 | |
| A denial of the writ of habeas corpus by a state judge is not a deprivation of liberty without due process of Jaw | 728 | |
| The examination of the books of a person, under section 14 of the revenue act, is not an infringement of the constitutional provision protecting persons from unreasonable searches, etc | 261 | |
| The appointment of supervisors of congressional elections by the federal circuit judges under Rev. St. § 2011, is a judicial act, and the statute is not unconstitutional | 430 | |
| A constitutional provision requiring a uniform rate of taxation does not prohibit municipal aid to railroads | 652 | |
| A constitutional provision that the state shall not be a party to or interested in any work of internal improvement does not prohibit the legislature from authorizing municipal aid to railroads | 652 | |
| CONTEMPT. | ||
| A person who brings an action in one court against a receiver appointed by another, without the consent of the latter, is guilty of a contempt, although the receiver's possession is not disturbed thereby | 1088 | |
| The proper remedy for a person, having a demand against a fund in the hands of the receiver, is to bring his demand into the court appointing the receiver | 1088 | |
| CONTINUANCE. | ||
| A continuance will be granted where depositions have been taken by one party without notice to the other | 210 | |
| Absence of a material witness may be good ground for a continuance, although he re sides more than 100 miles from the place of trial, so that the moving party might have taken his deposition | 591 | |
| The absence of a witness on the hearing of an admiralty appeal is no ground of continuance, where he failed to attend in the court below, and no effort was made to secure his attendance in the circuit court until five days before the case on appeal was called for trial | 773 | |
| CONTRACTS. | ||
| See, also, “Sale”; “Vendor and Purchaser.” | ||
| Where a contract to cut a channel in a river is partly performed, when a freshet clears out the balance, and the contractor is notified not to complete the contract, he is entitled to recover the fair and reasonable 1370profit which would hare been made by him had he been allowed to complete it | 1038 | |
| COPYRIGHT. | ||
| A copyright cannot be secured without compliance with the statutory requirements as to the deposit of a copy of the title before publication and a copy of the book after publication | 268 | |
| The doctrine of the right to abridge criticised, and held, that a copyright should be protected under the rule applicable to a patented machine | 171 | |
| A fair abridgment, though it injure the sale of the original book, is lawful; otherwise as to a compilation | 171 | |
| A compiler or reviewer cannot extract from a copyrighted work so as to convey the same knowledge as the original book | 171 | |
| One compiler cannot avail himself of the labor of another by copying from his book extracts from common sources | 171 | |
| A translation of a copyrighted romance into another language is not an infringement of the copyright, though the author has herself a copyrighted translation | 201 | |
| A book of 1856 pages held to be infringed by an abridgment in 348 pages, which copied one-sixtieth part of the former book in the form of scattered paragraphs, constituting one-fifteenth part of the infringing book. | 171 | |
| A part of a book may be an infringement and the other parts not. In such case the relief will only extend to the part considered an infringement | 171 | |
| Before granting an injunction on a charge of infringement, the court will generally refer the matter to a master with instructions to report the extent of the infringement, if any, that the court may act on the case. | 171 | |
| A purchaser under a sheriff's sale of a copper plate on which a copyrighted map is engraved, may take impressions therefrom, and sell the same | *15 | |
| Commissions received from sales of a pirated map are profits to be accounted for by the commission merchant selling them | 14 | |
| An account of profits may be decreed to the owner of a copyright as incidental to an injunction, but it must be prayed for in the bill, and cannot embrace penalties | 8 | |
| CORPORATIONS. | ||
| See, also, “Banks and Banking”; “Insurance”; “Marine Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers”; “Telegraph Companies.” | ||
| In Iowa a corporation for pecuniary profit becomes a body corporate as soon as the articles of incorporation are duly filed, though it has no paid-up capital, and does not file a sworn statement or procure a certificate authorizing it to commence business, as required by law | 137 | |
| In such case the individual members are subject to the penalties and liabilities provided by law, but they cannot be held liable as partners | 137 | |
| A by-law, adopted by the directors, and not by the incorporators, where two-thirds were present as required by the charter, is a nullity | 899 | |
| A corporation chartered for sawing and manufacturing wood cannot legally invest money in a bank for the purpose of carrying on the business of banking | 384 | |
| Such corporation cannot buy shares in a banking institution to more than its authorized capital, and bind the corporation or members for the payment of promissory notes given therefor | 384 | |
| An insurance company, though forbidden by its charter from investing in national bank stock, after holding the stock and receiving dividends thereon, is estopped from setting up the unlawful acquisition to escape liability for an assessment on the subsequent insolvency of the bank, where the latter did not know in what manner the stock was acquired | 251 | |
| A judgment against a corporation in a suit of which it had no notice is not binding on it in another state in which the corporation was domiciled | 384 | |
| A contract for the issue of stock at less than the charter price is not enforceable | 311 | |
| A sale of stock by the directors at a less rate than that fixed in the charter is unlawful and void | 311 | |
| The issuing by the directors of a bond convertible into stock is the same in effect as the sale of so much stock, and the sale of such a bond at a discount is unlawful and void | 311 | |
| A power given to the directors to sell the property of the company, or notes and bonds belonging to it, does not apply to the capital stock | 311 | |
| It is not necessary that the charter contain a prohibition against taking subscriptions at less than the charter price | 311 | |
| A contract by a corporation with purchasers of certificates of stock to pay them a higher rate of interest than that permitted by law is invalid, and a subsequent contract founded thereon, to apply the excess of interest in a manner contemplated, therein, will not be enforced in equity | 351 | |
| An agreement by the corporation to receive depreciated stock in other companies at its par value in payment of subscriptions is no defense to a suit against other stock holders on their subscriptions | 525 | |
| A stockholder is not exonerated individually from debts consequent on a lawful act against which he objected and protested, unless he seasonably sells out or withdraws as a member | 384 | |
| The members of a corporation are not bound in their individual capacity by a recovery in an uncontested suit against it in another state, where they had no notice and opportunity to defend | 384 | |
| COSTS. | ||
| Where several distinct causes of action are united in the same libel, the costs may be distributed, and each party recover costs on those branches of the action in which he succeeds | 942 | |
| A small undisputed claim, which has never been demanded, cannot be tacked to a contested claim so as to recover costs on the latter | 489 | |
| Full costs decreed claimant in admiralty, although the demands of libellants are less than $50 each | 489 | |
| Costs will be denied a seaman who has not given the master and owners a reasonable time for an amicable settlement of his claim | 443 | |
| Where a minority owner of a vessel objects to a proposed voyage, he is entitled to a bond for the safe return of the vessel, and his failure to demand it will not prevent his recovering costs on a libel therefor | 310 | |
| A third person, who appears and defends in behalf and in the absence of the party to a suit in admiralty, is personally liable for the clerk's fees | 189 | |
| Fees paid to the officers of the court by the claimant of property seized are not to be repaid by the United States, under Act Feb. 28, 1799, § 8, where the libel is dismissed. | 187 | |
| A dismissal “without costs to either party” does not relieve the parties from liability to 1371the clerk for fees for services rendered at their request | 189 | |
| No costs can be taxed save those allowed by the act of 1853 | 1131 | |
| Since the act of Feb. 26, 1853, the district court in admiralty has no power to award an additional sum to libelants in the court's discretion under the name of a counsel or proctors fee | 326 | |
| The rate of compensation of proctors in admiralty is controlled by the statutes in force at the time the right to costs accrues, or at the time of taxation | 326 | |
| In an equity case, where depositions are not admitted on final hearing, the solicitor's fee of $2.50 is not allowed (Act Feb. 26, 1853.) | 100 | |
| The distinction between an affidavit and a deposition considered | 100 | |
| Security for costs in the case of a nonresident plaintiff may required at the trial term, in default of which a continuance will be granted | 986 | |
| COURTS. | ||
| See, also, “Admiralty”; “Bankruptcy”; “Equity”; “Maritime Liens”; “Removal of Causes”; “Rules of Court” | ||
| Comparative authority of federal and state courts: Process. | ||
| The pendency of a replevin suit in a state court to settle the right of property in a vessel will be held to bar a libel in admiralty to settle the same right between the same persons | 797 | |
| But a replevin suit in a state court by a part owner of a vessel does not affect the jurisdiction of a court of admiralty in a proceeding by libel in which all the parties in interest are before it | 1186 | |
| While a court of chancery in another state than that in which land is situated cannot make a decree affecting the title, they may decree a conveyance where they have jurisdiction of the person of the owner, and enforce the same by attachment ox otherwise | 700 | |
| Federal courts—Jurisdiction in general. | ||
| The repeal (Act July 13, 1866, § 68) of Act June 30, 1864, § 50, leaves the jurisdiction of the federal courts in cases arising under the revenue laws to stand on Act March 2, 1833, and that act does not confer jurisdiction in cases arising under the internal revenue laws | 20 | |
| ——Grounds of jurisdiction. | ||
| The federal court has no jurisdiction on the ground of diverse citizenship, unless all the persons on one side of the controversy are citizens of different states from all the persons on the other side | 822 | |
| The limitation in section 11 of the act of 1789 is confined to the time when the suit is commenced | 897 | |
| Where a suit is auxiliary to one previously commenced and still pending between citizens of different states, it is no objection to the jurisdiction that the parties are citizens of the same state | 154 | |
| Under the act of 1839, a party defendant who does not reside in the district may voluntarily become a party to the suit without ousting the jurisdiction of the court | 762 | |
| The rule that jurisdiction once acquired by virtue of the citizenship of the parties cannot be ousted by a change of residence applies only where jurisdiction has vested by a suit | 897 | |
| The marshal's return should show affirmatively that the subpœna was served on defendant within the district in which the suit was brought in order to confer jurisdiction, where the bill alleged that defendant was a resident of another state | 903 | |
| An allegation in the complaint of residence of the parties is not necessary to give jurisdiction | 831 | |
| ——Circuit courts. | ||
| A foreign corporation, filing with a state auditor, pursuant to the state laws, a stipulation that service on the auditor will bind the company, is not, by virtue thereof, an “inhabitant” of, or “found” within the state, under Act March 3, 1875 | 90 | |
| The court acquires jurisdiction over a defendant corporation by service of its subpœna upon the superintendent and general managing agent within the district | 1113 | |
| Whether the circuit court can obtain jurisdiction of a snit against a citizen of another state residing in a foreign country by process of foreign attachment, where defendant is not found in the district,—quere? | 1353 | |
| ——Administration of state laws. | ||
| The settled construction of a state law by the highest court of the state is controlling on the federal circuit court | 1070 | |
| A decision of the highest court of a state, holding an act of its legislature unconstitutional, is binding on the federal court only where it is based upon special provisions of the state constitution | 652 | |
| The decisions of the supreme court of a state construing its state constitution and laws in relation to securities given by municipalities to aid railway companies, are not necessarily binding on the federal courts | 968 | |
| The federal court refused to follow a decision of the highest court of the state, holding laws authorizing municipal aid to railroads to be unconstitutional, where opposed to repeated decisions on other laws involving the same principle, and to the unanimous decisions of courts of other states in analogous cases | 652 | |
| The federal courts will follow the decisions of the state courts on questions of pleading. (Act June 1, 1872.) | 735 | |
| The federal courts are not bound in the interpretation of deeds by the decisions of the state courts | 946 | |
| A decision by the highest court of a state, that a foreclosure of the mortgage under a law of the state was bona fide, and made in conformity thereto, is binding on the federal court | 351 | |
| ——Procedure. | ||
| The circuit courts adopt the local remedies of the respective states | 214 | |
| The federal courts are not implicitly bound by the practice and decisions of the state courts with regard to amendments | 1323 | |
| COVENANT, ACTION OF. | ||
| Covenant will not lie on the condition of an injunction bond | 381 | |
| COVENANTS. | ||
| See, also, “Vendor and Purchaser.” | ||
| Construction of covenant in relation to lands taken in execution to satisfy a debt | 905 | |
| CREDITORS' BILL. | ||
| A creditors' bill is maintainable in the federal court in the form prescribed by the state statutes | 472 | |
| The Illinois statute of 1877, giving the county court full jurisdiction in the case of assignments for creditors, does not deprive courts of equity of jurisdiction of a creditors' bill to set aside a fraudulent assignment or preference consummated prior to the assignment | 247 1372 | |
| Reduction of a claim to judgment is an indispensable prerequisite to a creditors' bill | 55 | |
| Where the debtor disposed of $200,000 worth of stock before making a general assignment of $18,000, held, that a receiver would be appointed | 247 | |
| On a creditors' bill to recover assets pledged to a national bank as security on the ground that the loan secured was ultra vires, it appeared that afterwards the debtor had made a general assignment for creditors. Held, that complainant could have no relief, for if the bank had no title the title became vested in the assignees under the general assignment | 68 | |
| CRIMINAL LAW. | ||
| See, also. “Arrest”; “Bail”; “Extradition”; “Fines”; “Habeas Corpus”; “Witness.” | ||
| The federal district court has exclusive jurisdiction of crimes committed in the Gosport navy yard in Virginia. (Rev. St. § 711.) | 708 | |
| The “navy yard” includes contiguous waters necessary to float vessels of the navy while at the navy yard | 708 | |
| CURTESY. | ||
| In Rhode Island, a husband is not entitled to a life estate, as tenant by the curtesy, of a remainder or reversion owned by the wife, but only of real estate of which he had actual seisin and possession in fee | 126 | |
| CUSTOM AND USAGE. | ||
| A general custom of the Lake ports as to delivery will not control as against a particular custom of one port | 242 | |
| CUSTOMS DUTIES. | ||
| Customs laws. | ||
| Foreign goods once lawfully imported lose the character imparted to them by such admission on their re-exportation, and cannot again be imported without a permit | 840 | |
| Goods of whatever growth or manufacture, brought from a foreign port or place, and landed at a port or place within the United States without a permit, are forfeited | 840 | |
| Opium shipped from San Francisco to Portland by the way of Victoria, B. C., and taken ashore there, for however short a time, cannot be landed by the same vessel at Portland without a permit | 840 | |
| The question whether certain articles upon which a specific duty is imposed by name is, like certain other articles, within a treaty stipulation for nondiscriminating duties, is exclusively for congress | 784 | |
| Rates of duty. | ||
| Goats' hair plush or mohair plush, composed partly of cotton, held dutiable as a manufacture of “goats' hair or mohair,” under Act Aug. 30, 1842 | 1159 | |
| Shingles not specifically enumerated in Act March 2, 1861, held dutiable at 30 per cent., as manufactures of wood | 116 | |
| Invoice: Entry: Appraisal. | ||
| Under Act Aug. 30, 1842. § 16, and Act July 30, 1846, § 8, duties are to be assessed upon the appraised value of goods imported by their manufacturer, notwithstanding there is an invoice sworn to by their owner. | 1100 | |
| The additional duty of 20 per cent. (Act July 30, 1846, § 8) is not imposed where the invoice price is raised more than 10 per cent., where the importer is the manufacturer, or procured the goods in the country of their production otherwise than by purchase | 1100 | |
| The lowest cash price given by a merchant in a regular proposition for wine for export in quantities will fix a market value for the purpose of invoicing wines in substance the same as those offered | 1168 | |
| The “actual market value” of wines at the “place” where they were procured or manufactured determined in the case of wines dosed and prepared for export | 1168 | |
| An appraisement regularly made under Act April 20, 1818, c. 74, for the purpose of ascertaining the value of goods subject to an ad valorem duty, is conclusive as to the value on which the duty is to be estimated. | 690 | |
| Under such act, the actual cost is still the true basis of valuation | 690 | |
| Payment: Protest. | ||
| Where the protest is written on the entry, the description given of the goods in the entry need not be repeated in the protest | 1100 | |
| The protest must state distinctly every ground of objection intended to be relied on, and no others are available 516. | 1100 | |
| Objection to the regularity of the appraisal proceedings is not raised by a protest “against paying additional duty and penalty on” the goods described, “they being appraised too high.” | 1100 | |
| Violations of law: Forfeiture. | ||
| Debt is the proper form of action for the recovery of penalties for violations of the law | 116 | |
| Counts for duties and for double values may be joined in the same case | 116 | |
| A count for illegally receiving, concealing, or buying may be joined with one for illegally importing | 116 | |
| A district court judge has power on complaint or affidavit to issue a warrant for the seizure and production of books or papers relating to merchandise, in respect to which a fraud on the revenue is alleged to have been committed | 116 | |
| Sufficiency of the warrant in such case and waiver of defects therein | 110 | |
| The objections to books, etc., offered in evidence on the ground that there was no authority to issue or serve the warrant, is insufficient to raise the question of defects therein at the hearing | 116 | |
| A sentence of condemnation forfeiting a portion of a cargo from an omission to enter the same in the manifest is erroneous, unless the libel charge the particular omission | 988 | |
| A bail bond given by the claimant is good, though the condition does not exactly conform to Act March 2. 1799, c. 128. § 89 | 268 | |
| Such section does not extend to delivery on bail on seizures under other acts | 268 | |
| DAMAGES. | ||
| See. also, “Contracts”; “Collision”; “Patents.” | ||
| A stipulation “to forfeit $1,000 if we fail to carry out this contract,” held a provision for a penalty to cover actual damages, and not for liquidated damages | 782 | |
| The measure of damages for a failure to transfer corporate stock according to contract is the price of the stock on the day when it ought to have been transferred | 727 | |
| Substantial doubts existing as to any of the elements of damage in a case of tortious taking must operate against the wrongdoer | 605 | |
| The measure of damages for the tortious taking of a whale is full indemnity to the owner; and in the case of whale ships the labor of securing and transporting the proceeds is not to be considered | 605 1373 | |
| DEATH BY WRONGFUL ACT. | ||
| The father of a minor child, killed by the wrongful act of defendant, may recover for the loss of his services to the time when he would have become of age, irrespective of the time when death ensued | 368 | |
| An action for the injury to a minor child by the wrongful act of defendant, in the absence of a statute, does not survive the death of the person injured, and cannot be brought by his representatives or nest of kin | 368 | |
| DECEIT. | ||
| The gist of an action for a false affirmation of the credit of another is fraud; and the action is not sustained if the representation was in substance true according to the party's knowledge and belief | 688 | |
| A warehouseman who draws a fabricated receipt is liable to the person who accepted and paid a draft on the faith of it for the in jury received | 479 | |
| In the case of commission merchants, the amount of commissions which they expected to receive is an item of damage | 479 | |
| DEED. | ||
| See, also, “Vendor and Purchaser.” | ||
| A conveyance to a parent by a child recently of age is prima facie valid, and its validity does not depend on adequacy of price | 362 | |
| A deed of lands not in the grantor's possession at the time of its execution does not convey the lands, and a covenant of seisin therein is not broken as to them | 964 | |
| A plan of a tract of land referred to in a deed for purposes of description is to be treated as if it were annexed to and made part of the deed | 946 | |
| Deeds are always construed according to the force of the language used by the grantor, and the apparent intentions of the parties deducible therefrom | 946 | |
| The description, said to contain “about” so many acres, “more or less,” will be considered as a representation of quantity, and in the case of an unreasonable excess or deficit equity will correct the mistake | 964 | |
| A deed, in Indiana, until properly acknowledged, is not notice, though it is recorded, and is valid between the parties | 254 | |
| As between a deed executed before an attachment and a deed under the attachment, held than the former, being first properly acknowledged and recorded, conveyed the paramount title | 254 | |
| A deed executed out of Indiana for land within it, acknowledged before a justice of the peace, should bear the county clerk's certificate, and not that of the secretary of state | 254 | |
| The recording of a deed in the proper office is only prima facie evidence that it was regularly proved and admitted of record | 644 | |
| The surrender and cancellation of a deed does not reinvest the title in the grantor | 472 | |
| DEMURRAGE. | ||
| The refusal to admit a claim for demurrage in loading will not justify a refusal by the master to sign bills of lading, and the owners cannot recover for a delay caused thereby | 1167 | |
| An agreement for quick dispatch supersedes any custom of discharging vessels by which they are to take their turn at the wharf | 874 | |
| Naming a wharf in a charter party containing such a stipulation amounts to an undertaking that the wharf shall be unincumbered | 874 | |
| A proviso against liability for detention, unless by “default” of the charterer, exempts him only from delay from causes beyond his control acting directly to retard the discharging | 874 | |
| The master is entitled to the presumption that he knows best where his vessel should anchor, and his changing the place of anchorage to a greater distance from the shore held no defense to a claim to demurrage in loading | 1167 | |
| A carrier is not justified, from press of business at a port preventing delivery for several days, in taking the goods to another place, and forwarding them from there to the consignees | 242 | |
| Demurrage allowed without interest | 1167 | |
| DEPOSITION. | ||
| A commission to take depositions in another state will not be granted without an affidavit showing it to be necessary for the purposes of justice | 471 | |
| A deposition, taken before trial, of an informer, who is entitled under the act of congress to a portion of a fine, forfeiture, or penalty, is not admissible | 988 | |
| In taking ex parte depositions under the act of congress, the requirements of the act must be strictly complied with | 1160 | |
| Where the name of the magistrate is written across the place where the envelope is sealed, it is sufficient evidence that the deposition was sealed up by him | 1160 | |
| Directing the sealed deposition to “the judges” of the court is sufficient | 1160 | |
| The party offering a deposition taken de bene esse must show that the requirements of the act have been complied with to entitle it to admission in evidence | 988 | |
| An objection to a deposition taken de bene esse, that it was not taken and returned according to law, held to apply to it as a deposition in chief | 988 | |
| A waiver of all objection to a deposition taken de bene esse does not impart any new character to it, and does not make it a deposition in chief | 988 | |
| DESCENT AND DISTRIBUTION. | ||
| See, also, “Executors and Administrators” “Wills.” | ||
| The Rhode Island statutes of 1768 and 1822 respecting estates of persons dying without known heirs or representatives in the United States, apply to undivided interests in an estate | 27 | |
| Discharge. | ||
| See “Bankruptcy”; “Insolvency.” | ||
| DISCOVERY. | ||
| See, also, “Creditors' Bill.” | ||
| After a verdict at law, plaintiff may maintain a bill in equity for a discovery as to usury in the contract on which the verdict was founded | 506 | |
| Defendants cannot be compelled to answer whether, upon a note being sent to them to be signed, they did not substitute a note for the same amount, dated on Sunday, as this would subject them to a penalty for violating the Sabbath | 54 1374 | |
| DISTRICT OF COLUMBIA. | ||
| The commissioners of the city of Washington, under Act Md. 1793, c. 58, § 2, may resell public lots as often as a purchaser should fail to pay for them, and charge each preceding purchaser with the loss upon the resale | 1149 | |
| DOMICILE. | ||
| See, also, “Courts”; “Prize”; “Removal of Causes.” | ||
| The presumption that a domicile once acquired continues does not prevail when its effect would be to impose upon the party the character of an enemy to his government | 179 | |
| EJECTMENT. | ||
| See, also, “Adverse Possession”; Real Property”; “Right, Writ of.” | ||
| Where a defendant in ejectment, in fraud of his agreement with a purchaser on a mortgage foreclosure pending the ejectment suit, confessed a judgment to the latter, held, that the judgment would be set aside, and defendant continued as a nominal party to preserve the jurisdiction of the court | 962 | |
| The owner of the fee in ejectment against a squatter, who has neither claim nor color of title, and has admitted title in plaintiff's grantor, need not produce other evidence of title than the conveyance from his grantor | 584 | |
| EMBARGO AND NONINTERCOURSE. | ||
| Act March 1, 1809, c. 91, applies to all goods of British manufacture, etc., although imported into a neutral country before the passage of that act. | 846 | |
| The arrival of a vessel within the Chesapeake Bay for the purpose of procuring a pilot in anticipation of a storm, held, sufficient to subject her to forfeiture | 1107 | |
| The nonintercourse law was not repealed by the declaration of war with Great Britain, except so far as its provisions were inconsistent with a state of war | 1107 | |
| EQUITY. | ||
| See, also, “Courts”; “Injunction”; “Pleading in Equity”; “Practice in Equity.” | ||
| A court of equity cannot enforce the performance of a judicial function. The proper remedy in such case is by mandamus | 1313 | |
| A bill in equity is not the proper remedy to enforce a decree in equity for the payment of money, as the remedy at law is adequate and complete | 1222 | |
| Where a paper deliberately agreed upon to effect an object fails to do so by the death of the party who was to do the necessary act, equity will not give a remedy by setting up a previous agreement | 1243 | |
| An agreement to submit a question to arbitration will not be enforced in equity. Such an agreement is revocable before the award is given | 1313 | |
| In cases of concurrent jurisdiction, courts of equity consider themselves bound by the statute of limitations which governs courts of law in such cases. In other cases, they act upon the analogy of the limitation at law | 351 | |
| In a case of gross laches in prosecuting, or long acquiescence in the assertion of adverse rights, where the statute of limitations does not apply, the court will consider the claim barred | 351 | |
| Constructive trusts being purely of equitable cognizance, lapse of time is no absolute bar to relief; and, when the trust arises out of fraud, each case is to be deter mined on its own circumstances | 32 | |
| Long acquiescence and lapse of time is a good ground against permitting a deed to be impeached as fraudulent | 362 | |
| Equity will not reform a written contract by a previous parol contract on the same subject | 1243 | |
| A party seeking to set aside a contract on the ground of misrepresentation and concealment has the burden of showing the same | 816 | |
| Where a court of equity obtains control of a fund and the parties entitled to it, its distribution will be directed to the parties ultimately entitled thereto | 1098 | |
| ESCHEAT. | ||
| An inquest of office for lands escheating to the government by reason of alienage is not conclusive against a person neither party nor privy thereto, nor a tenant at the time, and he may show that there are lawful heirs, not aliens, in esse | 135 | |
| Seisin by the commonwealth under inquest of office of lands will be deemed to continue until the title is lawfully parted with | 135 | |
| A resolve of the legislature, releasing such title to another, may be construed as a grant if necessary to give it effect | 135 | |
| ESTOPPEL. | ||
| The grantor is not estopped by recitals in the deed to show in an action for the purchase price that the consideration has not been paid | 615 | |
| An agreement made by plaintiff with a warehouseman to take certain winter wheat in part payment for a special deposit of spring wheat converted by him will not estop plaintiff from suing for the conversion where defendant had no title to the winter wheat | 919 | |
| EVIDENCE. | ||
| See, also, “Trial”; “Witness.” | ||
| Judicial notice. | ||
| The court will take judicial notice that Astoria is on Long Island, and that commerce is carried on by its inhabitants by means of ferry boats | 424 | |
| Presumptions: Burden of proof. | ||
| Where defendant, who has received payment of a joint debt, admits the joint interest of plaintiff without stating its amount, of which he had knowledge, plaintiff's interest will be deemed to be an equal interest, nothing appearing to the contrary | 142 | |
| Declarations and admissions. | ||
| The admissions of a party to a suit may be given in evidence as independent testimony, though he has been sworn as a witness, and no impeaching questions asked him | 220 | |
| Documentary. | ||
| In an action at law by one partner against the other, a partnership book kept by defendant is not evidence against plaintiff, although it has been in his possession | 470 | |
| Copies of accounts and papers in the office of the quartermaster general, certified by the third auditor of the treasury, whose official character is certified to by the secretary 1375of the treasury, are admissible in evidence | 1092 | |
| A document attested by the clerk of a court with its sea and the certificate of its presiding judge, and called an “exemplified copy,” is competent evidence of the judgment described in it under Act May 26, 1790, though not sufficient at common law or under the state laws | 744 | |
| A copy of a manifest of a cargo certified by a notary held not admissible | 651 | |
| A copy of a judicial record, having a flourish with the pen on the margin of each page, instead of a seal, held not admissible | 651 | |
| A copy of a deed duly recorded is, after 60 years, admissible to establish a grant under which a person claims title to land | 135 | |
| Record copy of deed held admissible without producing the original or accounting for its nonproduction | 962 | |
| An execution is inadmissible without the judgment on which it was issued | 1291 | |
| A recital in a deed under which possession has been held for 60 years, that the grantor is heir, and sells as such, is prima facie evidence of the fact | 135 | |
| Parol evidence. | ||
| Parol evidence is not admissible to explain or contradict a contract to convey land or an agreement to give a bond or writing to convey, where the party to be charged derived his title from a stranger | 1324 | |
| Parol evidence is admissible to show that an absolute deed was intended as a mortgage, and the defeasance has been omitted or destroyed by fraud or mistake, or omitted by design upon mutual confidence between the parties | 778 | |
| Parol evidence cannot be given of a statement of account by a master in chancery in a suit pending in another court | 470 | |
| In an action against an indorser of a note parol evidence is admissible to show an agreement with plaintiff whereby defendant was to be discharged on the happening of a particular event | 450 | |
| Competency: Materiality: Relevancy. | ||
| The acts and declarations of a person as to his intention in remaining in or removing from a country, though not simultaneous therewith, are admissible to prove his intention | 1346 | |
| A notary who has no personal recollection of making a demand may testify from entries made in his book at the time | 1146, 1152 | |
| Weight and sufficiency. | ||
| The unsupported evidence of a witness of admissions obtained by him from a party for the purpose of charging him thereby, is entitled to but little weight | 408 | |
| EXECUTION. | ||
| See, also, “Attachment”; “Bankruptcy”; “Bonds”; “Garnishment” “Judgment.” | ||
| A justice of the peace cannot issue an execution as on a supersedeas upon the mere indorsement on the back of the original judgment that it is superseded | 973 | |
| An alias fi. fa. or a new levy is not necessary where the first levy and inquisition are set aside by the court | 1070 | |
| A vague levy on land may be rendered certain by an appraisement in which it is particularly described | 389 | |
| The writ first executed will take personal property without regard to their dates or the time of delivery to the officers, and the lien given by such delivery binds the goods against a voluntary transfer | 1273 | |
| A fieri facias, received by the marshal before an attachment for rent not due, is entitled to priority, and must be first satisfied | 80 | |
| The return to the execution nulla bona need not state that the officer made search for property | 472 | |
| The death of defendant after the levy does not affect the power of the sheriff to sell: otherwise in the case of a death before levy. | 389 | |
| Execution issued on a dormant judgment is irregular, but a title acquired under a sale thereon is good | 389 | |
| A sale for a grossly inadequate consideration will be set aside where the attorney prepared the writ for the clerk, taxed the costs, prepared the advertisement directed a large quantity of land to be levied on, and himself became the purchaser. | 436 | |
| An agreement to prevent a sacrifice of property, under which it is bid off for its full value, is no ground of setting aside the sale | 887 | |
| The acknowledgment of a sheriff's or marshal's deed held a judicial act, which would cure all defects in process or its execution which the court had power to remedy by their order | 1070 | |
| Where a sheriff's deed is certain, it cannot be avoided collaterally by a defect in the levy | 389 | |
| The title of the purchaser at a sheriffs sale cannot be affected by irregularities in the proceedings, unless they are such as to render the proceedings absolutely void | 389 | |
| An execution, after the expiration of the time within which it is made returnable, is of no force, and an arrest under it is a trespass | 210 | |
| EXECUTORS AND ADMINISTRATORS. | ||
| See, also, “Descent and Distribution”; “Wills.” | ||
| Where it appears that a large sum of money is likely to come into the administrator's hands, he may be ordered to give additional bonds, failing which he may be re moved | 805 | |
| An administrator who after a decree ascertaining the distributive shares, takes guardianship of a minor distributee, will hold his share as guardian, and not as administrator | 763 | |
| In such case the sureties in the administration bond are not liable for the ward's share | 763 | |
| The executor or administrator may submit an account of his testator or intestate to arbitration, and his acceptance of the award is binding on all concerned | 237 | |
| Where an executor was directed to apply $500 to the manumitting of certain slaves, which he wrongfully failed to do for several years, held, that he was not chargeable with interest thereon for the benefit of the residuary legatees | 53 | |
| A contract by a person, as administratrix and as guardian of infant heirs, with an agent, to redeem lands from tax sales, and to perfect titles in consideration of a conveyance of a moiety, will be held personally binding upon the administratrix as to her share, and upon the infants to the extent of a liberal remuneration for services performed | 816 | |
| A covenant by an executor on a conveyance of land of his testator in his capacity as executor, and not otherwise, is not binding upon him in his individual capacity, although it may not be binding on the estate. | 905 | |
| A sale of a final settlement certificate by the administrator for the highest market price, though below its nominal value, is valid | 237 | |
| A judgment for the purchase price of lands, sold by commissioners at a public sale, by the acre, as directed by a decree of 1376the court, will be enjoined to the extent of any deficiency, though the commissioners declared that the purchaser must buy at his own risk, both as to quantity and title | 237 | |
| A scire facias will issue on a suggestion of a devastavit to subject the executor or administrator de bonis propriis | 823 | |
| The administrator of decedent's domicile is entitled to receive from the administrator appointed in another state the balance of assets remaining after paying debts therein | 525 | |
| An administrator appointed in one state may sue in the courts of another before obtaining letters therein, and after he has obtained such letters may aver the fact by amendment | 525 | |
| Exemptions. | ||
| See “Bankruptcy”; “Homestead.” | ||
| EXTRADITION. | ||
| A subject of the king of Prussia, charged with having committed a crime in Belgium, is extraditable under the treaty with Prussia of June 16, 1852, as for a crime “committed within the jurisdiction” of Prussia, where such person is punishable for such crime in Prussia, where a prosecution therefor has been commenced | 281 | |
| The treaty of extradition with Bavaria of 1853 was not abrogated by the operation of the constitution of the German empire, adopted in 1871 | 927 | |
| Where the treaty of extradition does not require the issuing of an executive mandate, it is not a prerequisite to jurisdiction | 927 | |
| It is not a necessary preliminary to an investigation that a warrant of arrest should have been issued or proceedings had against the accused in the foreign jurisdiction | 927 | |
| The statutes in relation to documentary evidence from abroad in extradition cases (Act Aug. 12, 1848. § 2; Act June 22, 1860: Rev. St. § 5271) examined | 296 | |
| In the case of a person held in custody under commitment by a commissioner for surrender under a treaty of extradition, writs of habeas corpus and certiorari may both be issued | 296 | |
| On the return to such writs the court has no power to revise the decision of the commissioner on the question of fact as to the criminality of the accused | 296 | |
| But the court must inquire whether the commissioner acquired jurisdiction, and whether he had legal or competent evidence before him of the facts found, but has no right to inquire into the sufficiency of such evidence as is competent | 296 | |
| The president may lawfully decline to surrender the accused, after his commitment for surrender and the refusal of a discharge on habeas corpus, on the ground that the case is not within the treaty, or for insufficiency of the evidence | 296 | |
| FACTORS AND BROKERS. | ||
| See, also, “Principal and Agent.” | ||
| When the principal can trace his property as distinct from that of the factor, he can recover it in whosesoever hands it may come | 1066 | |
| Where the proceeds of notes taken by a factor del credere on the sale of his principal's goods are received by the assignees in insolvency of the factor, they may be recovered by the principal, subject to a deduction for the factor's commissions and charges | 1066 | |
| FALSE IMPRISONMENT. | ||
| A collector of taxes may be sued in trespass for imprisoning a party taxed as an inhabitant of a town, who is not an in habitant | 1189 | |
| FINES. | ||
| Fines and penalties may be enforced either by an execution against defendant's property or by capias; but where the sentence directs collection by execution a subsequent imprisonment under a capias is illegal | 867 | |
| FISHERIES. | ||
| See, also, “Seamen”; “Shipping.” | ||
| The fastening of a harpoon in a whale, with a line attached, gives the boat, the right to the whale, under the usage of whaling, though the whale subsequently escape, and is captured by another | 558 | |
| A whale, killed and left anchored with marks of appropriation, is the property of the captors, and their title is not divested by a subsequent removal by others | 605 | |
| A seaman in the whale fisheries has no property in the oil or bone taken, and the vessel owners are the proper persons to sue for a wrongful taking by another | 605 | |
| A vessel is not subject to forfeiture under the act of July 29, 1813, on the improvident payment of a bounty, where not entitled to it, but only for the act of fraud and deceit in obtaining it, whether rightfully entitled to it or not | 494 | |
| Forfeiture. | ||
| See “Customs Duties”; “Fisheries”; “Informers”; “Internal Revenue”; “Shipping.” | ||
| FRAUD. | ||
| Fraud may be proved by circumstances | 700 | |
| FRAUDS, STATUTE OF. | ||
| A promise by a third party to pay a judgment debt if the creditor will suspend collection for six months is an original promise, and need not be in writing under the Ohio statute | 60 | |
| A verbal agreement to pay the debt of another, although confessed in the answer, will not be enforced in equity if the statute of frauds is insisted upon in the answer | 1051 | |
| The admission of a parol agreement in the answer will not prevent defendant from protecting himself against a performance by pleading the statute | 1094 | |
| Fraudulent Conveyances. | ||
| See, also, “Assignment for Benefit of Creditors”; “Bankruptcy”; “Insolvency.” | ||
| GARNISHMENT. | ||
| Funds of the debtor in the hands of a third person are subject to garnishment, though such third person is liable as indorser on the bills of the debtor, which he is subsequently compelled to pay | 766 1377 | |
| The undivided interest of defendant in a negotiable treasury certificate issued in payment of an award can be attached in the bands of a garnishee, even before it is due | 225 | |
| A judgment rendered in the federal circuit court cannot be attached by process issued out of a state court against the plaintiff in the judgment | 986 | |
| Any corporation having property in the state is “a body politic within this state.” within section 13 of the Nevada act, directing proceedings against trustees of debtors. | 1113 | |
| GRANT. | ||
| See, also, “Mines”; “Public Lands.” | ||
| Ordinary grants and those for meritorious services are governed by the same principles and regulations | 862 | |
| The rule at common law, that in the construction of deeds quantity must, yield to specific metes and bounds, cannot be applied to Mexican grants | 1338 | |
| HABEAS CORPUS. | ||
| See, also, “Army and Navy”: “Extradition.” | ||
| A person under arrest by state officers for an act done under process of a federal court or in executing a federal law may be discharged on habeas corpus | 1015 | |
| Where a writ of replevin from a federal court was fraudulently obtained with the purpose of carrying off property, and the party is indicted for larceny therein, the federal court will not discharge him on habeas corpus | 1015 | |
| The federal court may issue the writ in the case of an arrest and imprisonment by state authorities of a person accused of a crime committed in one of the places mentioned in Rev. St. § 711 | 708 | |
| An agent of a state arrested in a suit for malicious prosecution for obtaining from the governor of another state, on the presentation of an authenticated indictment, a man date for the arrest of a fugitive from justice, under which a person is arrested, is en titled to his discharge on habeas corpus by a federal court | 1309 | |
| Proceedings on habeas corpus in a federal court will be quashed where it appears that the prisoner is confined upon a regular charge and commitment, after examination duly had by a court of competent jurisdiction, for a criminal offense exclusively cognizable in the state court, and that the prisoner is not restrained of his liberty without due process of law | 728 | |
| HEALTH. | ||
| Where a vessel is detained an unreasonable length of time by the board of health of a city, acting as quarantine officers, before permitting her to land, the city is liable in damages. | 392 | |
| HOMESTEAD. | ||
| See, also, “Bankruptcy.” | ||
| In Nevada the interest of a tenant in common in the dwelling house and land occupied by him as a homestead, not exceeding $5,000, is exempt | 527 | |
| In Texas a homestead may embrace any number of city or town lots, designated and used as a homestead, and not exceeding in the aggregate $5,000 in value, irrespective of improvements thereon, whether remote from or contiguous to each other | 906 | |
| A person, in Georgia, who keeps a rented house, with hired servants, and makes his home therein with a widow, whom he has educated, and regards as his adopted daughter, though not legally adopted, is entitled to a homestead exemption, as the head of a family, but is not entitled to additional land for the children of such widow, forming part of his household | 730 | |
| An unmarried man, having orphan children bound to him under the apprentice laws of Texas, and conducting a household with hired servants, is not entitled to a homestead as the head of a family | 379 | |
| HUSBAND AND WIFE. | ||
| The wife's portion of a marriage settlement was to be raised out of her real estate, of which her father was tenant by the curtesy, by a sale after she arrived of age. The wife died shortly after arriving of age, without any act done by her, or request by her husband. Held, that her father was not liable for nonperformance | 1243 | |
| In Indiana the wife may require that her interest in her husband's land, which she has mortgaged to secure his debt, shall not be sold if her husband's interest will sell for enough to satisfy the debt | 890 | |
| INDIANS. | ||
| An actual settler on “Cherokee neutral lands” under the treaty of July 19, 1866, may transfer his right to purchase the land, and the grantee may make the required proof | 257 | |
| INJUNCTION. | ||
| See, also. “Equity”; “Patents.” | ||
| Upon an attachment for contempt in disobeying an injunction, evidence is not admissible to contradict the affidavit on which it was granted, nor will the court grant a rule to show cause | 1147 | |
| The attachment will not be quashed on account of a misnomer in the injunction, nor will the court receive a plea in abatement. | 1147 | |
| The irregularity in the service of the subpœna to answer is no ground for with holding an injunction against defendant, who had notice of the motion, and appeared to oppose it | 902 | |
| A notice to dissolve an injunction must be given 10 days before the term. If given in term, a term's notice is required | 132 | |
| INSANITY. | ||
| A man may be mentally so deranged as to authorize relief against judgments obtained against him during such a state of mind, though he be not so absolutely insane as to avoid all his contracts | 595 | |
| As to the validity of a sale of lands by a guardian of a non compos tenant in common, joining in a deed with the cotenants | 946 | |
| INSOLVENCY. | ||
| See, also, “Assignment for Benefit of Creditors”: “Bankruptcy”; “Compositions.” | ||
| A trustee in insolvency may maintain a bill for relief against judgments confessed by the insolvent, on notes given upon usurious and gambling considerations | 974 | |
| In such suit defendant will not be relieved from stating the true consideration of 1378the notes as prayed in the bill, on the ground that his answer might subject him to a penalty or forfeiture | 974 | |
| Effect of discharge after arrest on a cap. ad resp. and before the return | 190 | |
| Costs accruing partly before and partly after the discharge are barred thereby | 849 | |
| A certificate of discharge under the insolvent laws of one state is no bar to an action by a citizen of another state | 49 | |
| Where the discharge does not affect the contract, but only exempts the insolvent from future imprisonment, a suit may be brought on the contract in another state according to the lex fori | 1312 | |
| INSURANCE. | ||
| Stipulations in a policy not required by or conforming to the state statutes, held should be disregarded | 1060 | |
| A life policy, taken for the benefit of and assigned to a person who has no insurable interest in the risk, is void | 550 | |
| A contract of life insurance, entered into by a Northern insurance company with a resident of a Southern state before the Rebellion, which provides that it shall be void on the nonpayment of premiums, is not suspended by the war, though the performance of the condition is made impossible, or the contract made illegal by the war; and a court of equity cannot relieve the party from a forfeiture | 620 | |
| The agency of one representing an insurance company, authorized to receive premiums and renew policies, becomes unlawful when the insured and the insurer become public enemies | 620 | |
| The concealment of incendiary threats, made so long prior to the insurance as not to increase the hazard, will not avoid the policy | 1060 | |
| The failure of the company, when not fraudulent, to give notice to the assured that a premium or premium note was abom falling due, as customary, will not save the policy from a forfeiture provided therein for failure to pay the premium or premium notes | 1057 | |
| No notice by the company is necessary to render the policy void | 1057 | |
| A custom of the company to allow 30 days' grace cannot affect the rights of the parties under the contract | 1057 | |
| Where payment of the premium was to be made on the first day of the succeeding month, which fell on Sunday, held, that an offer to pay made on Monday was sufficient, though the building burned on Sunday | 772 | |
| The local agent of a foreign company, who has power to effect insurance and collect premiums, is presumptively authorized to make a verbal contract to renew a risk, and to give time for payment of the premium | 772 | |
| The distinction pointed out between untruthful answers to specific questions and the mere failure to make full answers | 550 | |
| Warranty that the assured had never “been addicted to the excessive or intemperate use of any alcoholic stimulants,” and does not “use habitually intoxicating drinks is a beverage,” construed | 550 | |
| Warranty in relation to “good health” and being “free from any symptoms of disease” construed | 550 | |
| The involuntary omission of an existing mortgage from proofs of loss is immaterial | 1060 | |
| Specific objections to proofs of loss are considered as a waiver of all other objections of which the company had knowledge | 1060 | |
| Where proofs of loss are received without objection, all objections to their sufficiency will be considered as waived | 1302 | |
| One who holds a life policy to secure a past debt and future advances may recover the full amount due thereon, irrespective of the amount of his debt against the assured | 550 | |
| The burden to establish a defense of a breach of specific warranties as to existing facts in an action on a life policy is upon the insurer | 550 | |
| There is no presumption of law, prima facie or otherwise, that self-destruction arises from insanity, and plaintiff has the burden of showing it | 856 | |
| Insanity defined, which will excuse an act of self-destruction so as to render the insurer liable, notwithstanding a condition avoiding liability where the insured shall “die by his own hand.” | 856 | |
| The mere fact of the disappearance of the insured without apparent motive is not a sufficient ground from which his death can be inferred | 1302 | |
| The grant of letters of administration on the effects of the insured is prima facie evidence of his death | 1302 | |
| The actual loss is the measure of damages where recovery is restricted to the cost of replacing the property destroyed, less its depreciation from use, etc., and the difference in values before and after the fire will not give such indemnity | 1060 | |
| INTEREST. | ||
| See, also, “Usury.” | ||
| Interest is allowed on liquidated demands in admiralty the same as at law, and on seamen's wages from the time they are due | 491 | |
| Where a vessel is lost by explosion while in the possession of a lessee, and he is held liable for her value, he may be charged with interest from the date of the explosion | 76 | |
| INTERNAL REVENUE. | ||
| The procuring of a false certificate to be made by a gauger, as to the emptying of spirits to be rectified and the destruction of the stamps, will forfeit the spirits, though the fraud was not successfully carried out | 875 | |
| A regulation requiring a regauging of distilled spirits on their being emptied to be rectified, and the certificate of the gauger as to the destruction of stamps, held valid and reasonable | 875 | |
| Where the distiller refuses to fix the time to run off the mash on hand before the notice of suspension takes effect there can be no legal suspension | 208 | |
| INTERNATIONAL LAW. | ||
| The right of search is not allowable in times of peace, except against pirates or other offenders against the law of nations | 1220 | |
| JAIL AND JAILER. | ||
| The court will not interfere in the exercise of the discretion vested in a jailer, as to the custody of his prisoner, unless it appear that he has abused such discretion for the purposes of oppression | 725 | |
| JUDGMENT. | ||
| Rendition and entry. | ||
| Where the record produced upon the plea of nul tiel record shows a verdict only, the court will presume that a judgment was entered pursuant thereto | 823 1379 | |
| A decree nisi on default of appearance does not become absolute until the end of the term succeeding that to which the decree shall be returned “executed.” | 72 | |
| Validity. | ||
| Where the record shows that there was no personal service on defendant, who entered no appearance, the judgment is a nullity | 1035 | |
| Lien. | ||
| A judgment in Ohio has relation to the first day of the term, and from that time constitutes a lien on the lands of defendant which lie within the jurisdiction of the court | 316 | |
| The Pennsylvania law of 1798 limiting the lien of judgments is a law of property and title applicable to judgments in the federal circuit court, of record before its passage | 1070 | |
| In Pennsylvania, a sale by a sheriff under a judgment in the state court passes a title to the purchaser discharged from a prior judgment in the federal court, either against defendant, as whose property it was sold, or against any persons from whom it was, conveyed to defendant | 1070 | |
| Operation and effect. | ||
| A former judgment is no evidence in an action, except between the same parties or their privies | 609 | |
| A judgment in plaintiff's favor on coupons of county bonds is not conclusive in a suit by him on other coupons of the same bonds. | 62 | |
| A decree in a suit by the vessel owners, against a shipper for freight, where the defense is nondelivery, is not evidence either for or against the master in a future suit against him by the shippers | 544 | |
| Actions on judgments. | ||
| A judgment is not an agreement, contract, promise in writing, or a specialty, within the Ohio statute of limitations | 1350 | |
| A judgment on an attachment, being a proceeding in rem, will not support an action out of the state | 1035 | |
| An averment that the court which rendered the judgment was a court of general jurisdiction, duly created by the state laws, is sufficient on demurrer, without alleging that it had jurisdiction of the person of defendant, either by service of process, appearance, or otherwise | 847 | |
| Under the act of 1790 the certificate of a judge styling himself “one of the judges” is not a sufficient authentication. It should appear that he was the chief justice or presiding judge | 59 | |
| JUSTICES OF THE PEACE. | ||
| Separate actions may be brought on notes held against the same person, though their aggregate amount exceeds the jurisdiction of the justice | 908 | |
| No appeal lies from a judgment of a justice of the peace in the District of Columbia unless the debt or demand exceed the sum of five dollars | 1153 | |
| On an appeal from the justice of the peace the cause should be tried de novo on the merits | 777 | |
| It is no ground of reversing the judgment of a justice rendered on a specialty that neither plaintiff nor his agent appear ed at the trial | 777 | |
| LIENS. | ||
| See, also, “Admiralty”; “Bankruptcy”; “Maritime Liens”; “Shipping.” | ||
| An equitable lien, though not necessarily creating a property in a thing, must amount to a charge upon it so that it may be recognized and enforced in a court of justice | 351 | |
| LIMITATION OF ACTIONS. | ||
| See, also, “Adverse Possession”; “Ejectment”; “Equity”: “Maritime Liens.” | ||
| Act April 30. 1790, § 32. limiting suits for penalties to two years, is repealed by implication by Act Feb. 28, 1839, § 4, which extends the time to five years | 101 | |
| The Ohio statute of limitations barring actions founded upon a specialty or any agreement, contract, or promise in writing after 15 years, and all other actions after 4 years, is inapplicable to a judgment | 1350 | |
| A state statute of limitations is not applicable to a sale of land exempted by federal authority from state taxation | 576 | |
| State statutes of limitation are inapplicable to suits in equity in the federal courts, but under ordinary circumstances the limitations prescribed by them will be adopted | 32 | |
| The immunity from suit arising when a cause is barred by limitation is a personal immunity, which follows the person of the debtor into whatever state or territory he may go | 650 | |
| When a cause of action is once fully barred by the statute of limitation, the legislature has no authority to again revive it by lengthening the period of limitation or excepting certain cases from the operation of the statute | 650 | |
| A debt contracted in Indiana and barred by the laws of the state to which the debtor subsequently removed, is barred in Indiana, though it would not have been barred if the debtor had remained in such state | 650 | |
| In the case of an unliquidated demand, where the parties have come to a settlement, and determined the sum due by mutual agreement, the limitation begins to run from the time of such settlement | 162 | |
| In Maine, in the case of a mutual and open account current, where the party sleeps on a demand without entering it on his account until the period of limitation is elapsed, the account is barred | 162 | |
| A person in Alexandria county. D. C, is not “beyond seas” in respect to persons re siding in Washington county | 345 | |
| The plea of the statute cannot be put in after the rule day, unless it be shown by affidavit to be necessary to the justice of the case | 1023 | |
| LOTTERIES. | ||
| Lottery tickets cannot be sold in the District of Columbia for a lottery authorized by a state law | 1062 | |
| MARINE INSURANCE. | ||
| See, also. “Average.” | ||
| The owner of a vessel, who has contract ed to sell her for a certain sum, and to make title, has an insurable interest to the extent of the value of the vessel | 270 | |
| Construction of time policy in relation to destination and voyage | 270 | |
| The policy covers belligerent risks where there is no warranty of neutrality | 210 | |
| A policy insuring freight on a steamboat and barge against total loss “at and from St. Louis to New Orleans.” covers freight on additions to the cargo made during the voyage | 92 | |
| Where in such case the barge was sunk, and her cargo transferred to the steamboat, 1380and no other barge could be procured to carry cargo previously engaged at intermediate ports, held, that the policy covered all freight which would have been earned but for the loss of the barge | 92 | |
| Upon a valued policy, a misrepresentation as to the age and size of the vessel will not avoid the policy | 210 | |
| Where the defenses are misrepresentation, negligent navigation, deviation, and unseaworthiness, the onus probandi as to the three former is on defendant, but the assured must prove seaworthiness | 1197 | |
| In cases of double insurance the insurers are liable ratably for the amount of the loss, and not according to priority of contract; and one who has paid the whole loss can compel the others to contribute their proportions | 1183 | |
| MARITIME LIENS. | ||
| See, also, “Admiralty”: “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Demurrage”; “Salvage”; “Seamen”; “Shipping.” | ||
| The right to a lien. | ||
| By the general maritime law a shipwright has a lien for materials, labor, etc., expended in repairs | 29 | |
| A person who furnishes repairs upon the order of the master is entitled to a lien, though the master was in fact, without his knowledge, holding the vessel as custodian for the marshal | 379 | |
| A lien arises for repairs and supplies furnished a vessel at a port other than that in which her legal owners reside, at the re quest of one to whom they had agreed in writing to transfer the title, where the purchaser subsequently assigned the con tract to a resident of the port, who completed the contract | 447 | |
| A lien arises for supplies furnished on the credit of a vessel in New York, where she is registered, where the owner resides in New Jersey | 952 | |
| A lien arises for advances made in good faith to enable the master of a foreign vessel to pay customhouse charges and the wages of his crew | 684 | |
| Repairs and materials furnished in a foreign port do not create a lien where the owners have ample credit and actual funds in the port, of which the creditor has implied notice | 459 | |
| Where the owners inform persons who furnish supplies at the request of a charterer that the ship would not be responsible, they cannot acquire a lien therefor | 554 | |
| A lien for supplies furnished in the home port of a vessel by material men residing in another state can only by enforced under the local law of the owner's domicile | 952 | |
| Priority and enforcement. | ||
| A lien for repairs furnished in the home port is entitled to be paid in preference to a subsequent mortgage | 910 | |
| A mortgage duly recorded takes precedence over a lien for supplies to a domestic vessel, subsequently furnished, although the mortgagor retains possession | 952 | |
| Maritime liens in favor of seamen and material men are to be enforced in rem only under salutary restrictions arising from the* demands and interests of navigation | 82 | |
| A lien for repairs may be enforced not withstanding the bond and mortgage given to secure it are not tendered back to the mortgagor, or surrendered in court at the trial. | 910 | |
| A sale under an admiralty decree, obtained without fraud, cuts off all claims of the builders of the boat, her owners and creditors | 55 | |
| Waiver: Discharge: Extinguishment. | ||
| Limitations prescribed by the common law do not apply to claims in admiralty except by statutory provisions, but admiralty liens will not be permitted to lie dormant to the injury of third parties | 82 | |
| A maritime lien should not be protracted beyond a reasonable opportunity for its enforcement | 82 | |
| On the Great Lakes tacit maritime liens will not be extended beyond the season of navigation except under special circumstances | 82 | |
| No cognizance will be taken of tacit liens where the circumstances create a presumption that the same are waived and other security looked to | 82 | |
| Allowing a claim to slumber three years with repeated opportunities to enforce it, and no excusatory circumstances, is conclusive that it is waived | 82 | |
| A lienholder is bound to diligence in the enforcement of his right, though a subsequent mortgagee may not have suffered directly by the delay | 910 | |
| A lien for repairs is waived by acts showing that other securities have been substituted therefor, and, in examining testimony to this point the court will make all presumptions that a jury ought to make on a trial of a question of fact | 29 | |
| A mortgage received simply as collateral security, though payable at a distant day, does not operate to extend the time of payment of the original debt, and the lien is not waived thereby | 910 | |
| Where the person doing work on a vessel stipulates for other and different security from that of the vessel, the maritime lien is waived. (Reversing 758.) | 756 | |
| As to the right of subrogation in admiralty in the case of the payment of the claims of seamen and others | 684 | |
| A sale by order of a state court under a foreign attachment law does not divest a lien in admiralty for seamen's wages | 797 | |
| On a sale of a vessel on a final decree in a proceeding in rem. all liens and incumbrances are transferred from the vessel to the proceeds | 592 | |
| A purchase by a mortgagee at such a sale will not extinguish the mortgage by a merger of title | 592 | |
| Liens under state laws. | ||
| The lien given by Act Pa. June 13. 1836, is not discharged by taking a note and giving a receipt in full, where such was not the intention | 465 | |
| A lien acquired under the New York statute by rendering services or furnishing materials to a vessel in distress in a port of the state is lost if she depart therefrom more than 12 days before commencement of the action to enforce the same | 329, 330 | |
| MARSHAL. | ||
| The marshal of the District of Columbia is not entitled to poundage upon the arrest of a debtor on a ca. sa. in Alexandria county, who has been discharged from such arrest by order of the plaintiff without payment | 508 | |
| MASTER AND SERVANT. | ||
| See, also, “Apprentice.” | ||
| Defendant, employing children, is not liable for an injury, caused by dangerous machinery where the child left his work, and carelessly exposed himself to danger | 1276 1381 | |
| MECHANICS' LIEN'S. | ||
| In Iowa, mechanics and material men are entitled to a lien on railways for their work and labor | 737 | |
| Such lien dates from the commencement of the building of the road, and is prior to a mortgage executed pending such building, and before the particular work was done or materials furnished for which the lien is claimed | 737 | |
| The Virginia mechanic's lien law does not apply to a ship building in a public shipbuilder's yard under a contract by which she becomes the property of the owners from the laying of her keel, where credit is given to the builder | 57 | |
| MINES. | ||
| Under the act of congress a location may include 1,500 feet along the linear course of the lode and 150 feet on either side of it. | 44 | |
| If a locator fails to locate his claim parallel with the apex, so that the latter passes out through a side line, he can take nothing except what lies within his boundaries | 44 | |
| “Top” and “apex,” as used in the act of congress, mean that part of the vein which comes nearest to the surface, and may include a part standing in the solid rock below a body of the superficial mass | 44 | |
| The apex of a vein is the part which approaches nearest to the surface, if it there discloses a broken edge; but if, at the highest point it merely turns over and pursues its downward course, such point is merely a swell, and not a true apex | 40 | |
| A vein, lode, or ledge, in the meaning of the acts of congress, is a mineral body of ore within defined boundaries in the general mass of a mountain | 40 | |
| “Vein” or “lode,” in the acts of congress, embrace any description of deposit inclosed in the general mass of the country rock, regardless of technical geological distinctions as to beds, segregated veins, gash veins, true fissure veins, or mere deposits | 44 | |
| If, in following the vein, the contact should be found barren of ore for a considerable distance because the two kinds of rock come together, then the deposit ceases to be a vein, and cannot be followed until another body of ore some distance beyond is reached | 44 | |
| The right to follow the dip beyond the vertical side lines includes all veins which do not lie in a practically horizontal position | 44 | |
| The owner of a claim may follow the dip beyond his vertical side lines at any point where the apex is within his boundaries, though his location is not for its entire length along the apex. He may follow the vein in its departure in any degree from the perpendicular until it reaches the horizontal | 40 | |
| A vein is “in place,” in the meaning of the acts of congress, when inclosed in the general mass of the “country rock,” as distinguished from the superficial mass known as “alluvium,” “detritus,” or “debris” | 44 | |
| “In place,” in the statutes, means in the general mass of the mountain, as distinguished from merely on the surface, or covered only by “slide” or “debris” | 12 | |
| Where the mass overlaying the ore is mere drift, or a loose deposit, the ore is not “in place,” within the meaning of Rev. St § 2320, so as to give the owners of a claim the right to follow the dip within the lines of an adjoining claim | 615 | |
| Whether or not “the contact” is to be regarded as a lode or vein is to be determined by its value, whatever may be the rule in regard to true fissures. | 12 | |
| Where the “contact” of a lode existing in one claim comes to the surface in an adjoining claim, the question whether the apex is in the latter is to be determined by finding whether there is something of value there; not for purposes of treatment, but something more than a mere trace, something positively verifiable as existing in the ore. In the case of silver, the value must be reckoned by ounces, one or more to the ton of ore | 12 | |
| A court of equity has the power in a mining case to compel an inspection and survey of the claims and works of the parties. | 1113 | |
| MORTGAGES. | ||
| See, also, “Chattel Mortgages”; “Shipping.” | ||
| A mortgage, under Act Ohio 1831, takes effect only from the time it is left for record, and a mortgage of subsequent date, first recorded, is a prior lien | 316 | |
| The rule governing the application of payments does not apply to mortgage notes given to secure indorsements | 1098 | |
| A bill of foreclosure by a junior mortgagee will not be sustained where he has already been impleaded by a prior mortgagee | 459 | |
| Prior incumbrancers are necessary parties to a bill of foreclosure by a junior mortgagee, where there is substantial doubt as to the amounts due them, or the property covered by their liens | 459 | |
| A court of equity may sell mortgaged premises free from incumbrances, remitting the lienholders to the proceeds of sale. | 459 | |
| MUNICIPAL CORPORATIONS. | ||
| See, also, “Railroad Companies.” | ||
| Power to grade streets, etc., necessarily implies power to make contracts respecting the same in regard to the work to be done and the compensation to be paid | 338 | |
| NEGLIGENCE. | ||
| Negligence is the doing of some lawful act in a careless, unusual, and improper way, or omitting the performance of some act required by law to be done, by which injury results to the person or property of another | 180 | |
| The failure of a railroad company to keep its turntable locked, so as to prevent its being turned by children or others, is not negligence, where prudent and well-managed railroads are not in the habit of guarding or securing their turntables. (But see 183.) | 180 | |
| Under what circumstances a railroad will be held liable for an injury to a child of tender years, caused by playing on its unguarded and unlocked turntable | 183 | |
| Negligence of the parents in permitting a child to wander from home and go upon a dangerous piece of machinery will not prevent liability of the owner for an injury to the child, resulting from his carelessness in not properly guarding and securing the same | 180 | |
| Negotiable Instruments. | ||
| See “Bills, Notes, and Checks”; “Bills of Lading.” | ||
| NEUTRALITY LAWS. | ||
| Property may be seized by the commanding officer of a military force ordered out to 1382prevent the violation of the neutrality act of 1838, with a view to detaining the same until it should be proceeded against in the manner directed by law | 177 | |
| A vessel laden with arms for insurgents in Canada, though not intended to pass the frontier herself, is subject to seizure, and, where wrecked after such seizure, without any fault on the part of the seizing officer, he is not liable | 177 | |
| NEW TRIAL. | ||
| A new trial will not be granted in a case of tort on the ground of excessive damages, unless they were so excessive as to imply gross partiality or corruption on the part of the jury | 504 | |
| A new trial will not be granted on ac count of excessive damages unless the jury have mistaken the principles of law which govern their estimate, or have been guilty of some gross error which shows an improper feeling or bias | 1189 | |
| Where the judge used the expression “exemplary damages,” but it appears that the jury did not go beyond the actual injuries sustained, the verdict will not be disturbed. | 744 | |
| OFFICE AND OFFICER. | ||
| The commission of a justice of the peace and judge of the court of common pleas in Pennsylvania is conclusive evidence of his appointment | 644 | |
| A public officer, who buys a bill of exchange for public use, is not personally responsible | 157 | |
| An officer is personally liable where he did not act in good faith, and with intention to perform duly the duties of his office, and where he acted with malice | 140 | |
| PARTIES. | ||
| A person who, from incapacity of mind or other cause, cannot be made to understand the English language, cannot be a party to a sworn libel in admiralty | 408 | |
| An assignee of a nonnegotiable contract cannot sue upon it in his own name in the circuit court for the Southern district of New York, as the state procedure is not adopted by such court | 474 | |
| An assignee of a chose in action may sue in his own name in the admiralty | 544 | |
| Where a husband, with the assent of his wife, filed a libel as owner for injury to a canal boat, wholly owned by her, and she gave material testimony at the trial, held, that she would be estopped from bringing another suit, and the libel could be maintained. | 1267 | |
| Where two whalers are under a contract of mate-ship, there is no such joint property in a whale taken by one of them as requires the owners of both to join in an action for its tortious conversion | 605 | |
| In a suit by a surety to cancel a conveyance of land made by him in trust to secure a note of the principal, the trustee is a necessary, and not a nominal, party | 822 | |
| The court has no jurisdiction where a per son within its jurisdiction, deemed an in dispensable party, is not joined | 1331 | |
| Bondholders of a railroad company which has united with another railroad company cannot join the trustees of the latter company as defendants in a suit for the removal of the trustees of the former for misconduct or negligence | 9 | |
| A mortgagee in possession of a vessel may intervene, and contest claims affecting his lien | 952 | |
| An assignee of complainant's interest in the subject-matter, pending the litigation, must file an original bill in the nature of a supplemental bill to be substituted to complainant's right | 688 | |
| PARTNERSHIP. | ||
| See, also, “Bankruptcy.” | ||
| A contract to work a farm on shares held to constitute a partnership, and to be abandoned by the failure of the party who went into possession to carry out its terms | 1193 | |
| A purchase of land for speculation by several persons, where a part of the lots were sold, and others built upon, and debts incurred, held a partnership adventure, and on the bankruptcy of one party the other would be protected, as to the partnership debts, as against individual creditors of the bankrupt. | 1161 | |
| A person loaning money to another carrying on business in his own name with the suffix “& Co.” cannot be held liable as a partner, where he neither held himself out as such, nor allowed others to do so | 511 | |
| On an issue of partnership, an offer to pay the partnership note if the holder would take property is evidence in connection with defendant's confession that the note was signed by his partner | 982 | |
| Partners are liable for the tort of one of their number committed by him as a partner in the course of the partnership business. | 116 | |
| A member of a firm cannot engage the firm in another partnership, so as to bind a member, not privy thereto. But his consent or ratification may be presumed by his silence without objection after he has knowledge of the fact | 595 | |
| An agreement to sell a member certain articles expressly for his individual use, to be paid for out of the partnership goods, is void as to the other partners | 789 | |
| The firm is liable on a note signed by the members with their individual names, where the consideration is treated as copartnership funds | 923 | |
| In Massachusetts all the partners are held as general partners, if the transaction, while showing an apparent contribution in cash by a special partner, resulted in fact in putting in goods and debts equivalent to cash | 898 | |
| In Illinois, if the certificate of dissolution of a limited partnership does not fulfill the requirements of the statute, the partnership still continues as to creditors | 852 | |
| Persons dealing with a limited partnership are chargeable with notice as to the scope of its business as set forth in its duly-recorded articles | 788 | |
| A common or long-continued departure by general partners, not consented to or acquiesced in by the special partners, cannot change the scope of the business as specified in the copartnership articles | 788 | |
| Where all the property of a partnership belongs to one member, and the others have no interest in the gains and profits, such property will be liable in the first instance to the individual debts of the person owning it | 511 | |
| The interest of a partner in the firm's brand or trade-mark cannot be reached in equity at the suit of a judgment creditor. | 733 | |
| A partner in a steamboat company, who acted as master and engineer, cannot maintain an action at law against his copartners for compensation as engineer | 806 | |
| PATENTS. | ||
| Patentability. | ||
| The invention must be both new and useful to authorize a patent | 1040 1383 | |
| The abandonment of a perfected invention or the fact that it fell into disuse will not affect the question of priority | 336 | |
| The mere making of a model by a person does not constitute invention, as against a patent granted another for the same thing. | 95 | |
| The omission of an element from a device so that the less number of parts will per form all the functions of the greater may be an invention | 195 | |
| The inventor of a new means of carrying into effect a patented process is entitled to a patent therefor, but he has no right to use the process | 1236 | |
| An old combination of machinery, applied in the practical development of a newly-discovered principle, producing a new and useful result, is patentable | 718 | |
| A change of a machine, not involving invention, so as to adapt it to different uses, is not patentable | 563 | |
| The desirability of an improvement, the difficulties to be encountered, and the unsuccessful experiments of others, tend to show inventive skill in the successful inventor. | 858 | |
| The covering of a whip with a tubular knit fabric is patentable, though such fabric and the whip, and the idea of covering the whip, taken separately, were all old | 249 | |
| Who may obtain patent. | ||
| Where the idea, although not executed, was suggested to the patentee by another, a patent executed to him as the sole inventor is invalid | 978 | |
| Abandonment: Laches. | ||
| The inventor must sue out his patent where the invention is yet recent, and before it has come into general use | 1040 | |
| Application and issue: Interference. | ||
| On the death of the inventor, the patent may be issued to his executor as such, though it is not stated to be in trust for the devisees in the will. (Act July 4, 1836, § 10.) | 105 | |
| Appeal from commissioner's decision. | ||
| Where the reasons of appeal in an interference case take no exception to the claim of the appellee, upon the ground of forfeiture by laches, the court cannot consider such question | 336 | |
| Where the applicant is put upon inquiry by the ruling of the board of appeal that his claim is not properly limited, the court, upon appeal, will not relieve him from the effect of a failure to amend his specifications | 921 | |
| Validity. | ||
| The degree of utility is not pertinent to the question of the validity of a patent | 1260 | |
| A patent taken out by assignees of an alien and nonresident inventor is invalid | 720 | |
| An American assignee of an alien inventor, who obtained letters patent in his own name under Act March 3, 1837, § 6, is not required to put and continue the invention on sale, under Act July 4, 1836, § 15 | 721 | |
| The common knowledge in the business of life must be kept in view in construing the general terms of a description | 1236 | |
| The specification must be sufficiently clear to distinguish the thing patented from all others previously known, and to enable a person skilled in the art to construct it. | 832 | |
| The invention should be so clearly described as to enable the public to put it in use | 357 | |
| A patent for an improvement should describe the machine in use | 357 | |
| Where the specification in a patent for “a new and useful improvement in the steam towboat” did not mention the invention as an improvement, but simply described a towboat, held, that the patent was void | 357 | |
| A failure to deposit in the patent office a sample of one of the ingredients of a composition of matter does not invalidate a patent for such composition, when the specification describes all the ingredients. | 704 | |
| After a patent is granted for a composition it cannot be impeached on the ground that the deposit of the ingredients in the patent office Ms not been made | 704 | |
| Extent of claim. | ||
| Unless plainly so intended, a construction will not be put upon the specification which would extend the claim so as to make the invention unpatentable | 1269 | |
| An inventor may claim in one patent a combination covering the entire machine, and also a combination of a less number of elements, when he is the inventor of both. | 24 | |
| A claim to “the communication of motion * * * produced as follows” held limited to the specific machinery described in the specifications | 161 | |
| Alien patentee. | ||
| An alien patentee need not take active measures for putting his invention in the market within 18 months after the grant. It is sufficient if he is ready at all times to sell at a fair price when a reasonable offer is made. (Act 1836, § 15.) | 718, 721 | |
| Vacation or repeal of patent. | ||
| The entitling of an affidavit intended to be used as the foundation for a rule to show cause why a patent should not be vacated as in a proceeding already pending in court, when in fact no proceeding has yet been instituted, is good ground for vacating the rule to show cause | 1039 | |
| An affidavit to the effect that a patent has been obtained “surreptitiously and upon false suggestions” is sufficient to warrant a judge in his discretion to grant a rule to show cause why the patent should not be vacated. He may also receive other affidavits and evidence in corroboration | 1039 | |
| Error committed in granting a rule to show cause why a patent should not be vacated as surreptitiously obtained cannot be corrected upon a motion to make absolute such rule | 1039 | |
| Form, of decree declaring a patent void and ordering the same canceled, under Act July 8, 1870, § 58. | 315 | |
| Reissue: Disclaimer. | ||
| A reissue may be obtained in order to claim a subcombination omitted from the original by inadvertence or mistake | 24 | |
| New features cannot be introduced in a reissue, but errors and defects may be cured, and ambiguities made clear | 24 | |
| A reissue is presumed to be for the same invention as that of the original, until the contrary appears | 24 | |
| A reissue will be upheld unless, on a comparison with the original, it appears as matter of legal construction that it is for a different invention | 24 | |
| The claims in the reissue must be construed so as not to embrace any invention broader than that described or substantially indicated in the original patent | 485 | |
| In the reissue, under Act July 8, 1870, § 53, of a chemical patent, it is necessary to its validity that the subject-matter should be found described in the original patent. | 706 | |
| The reissue is void where it was fraudulently extended beyond the claims of the original for a deceptive purpose. | 563 | |
| The patentee or his assignee may incorporate in the claims for a reissue any portion of his invention which was omitted in his original specification and claim | 563 | |
| New features cannot be interpolated into a reissue which are not described, suggest ed, or substantially indicated in the specification, drawings, or patent-office model of the original patent | 971 | |
| A reissue may be granted to an assignee of letters patent upon his application without 1384the consent, approbation, or knowledge of the original patentee | 563 | |
| The decision of the commissioner in granting a reissue is final and conclusive, except where he has apparently exceeded his authority | 971 | |
| Where a disclaimer has been filed pending the suit, plaintiff is not entitled to costs | 731 | |
| Sufficiency of disclaimer limiting the claim of a patent. | 731 | |
| Extension: Renewal. | ||
| The expiration of a prior English patent will not affect the validity of the subsequent extension of the patent for the United States | 1231 | |
| Assignment. | ||
| The subject-matter of a patent is not separable except territorially | 473 | |
| Assignees of an invention can take only such rights as the inventors could have taken | 720; contra, 721 | |
| The conveyance of an undivided interest in the “invention as secured” by letters patent, to be enjoyed “to the full extent of the term for which said letters patent are or may be granted,” passes an interest in the extended term | 903 | |
| Infringement—What constitutes. | ||
| Where the gist of an invention is the discovery of a principle in science made practically useful by the process described, he who adopts the principle to a practical ex tent is guilty of infringement | 1260 | |
| The fact that the patentee did not know that his device would perform a certain function or office will not prevent the patent from protecting it in such use | 195 | |
| Tests for determining what is a substantial change in a machine | 709 | |
| A screw and a lever are mechanical equivalents. So, also, a spring, a weight, and a pulley are mechanical equivalents | 709 | |
| Though the machine is not in its arrangement substantially different from that of the patent, yet there is no infringement if its action upon the material operated upon is essentially different, and the result is new. | 718 | |
| The sale of a substance containing caustic alkali, with oil or rosin mechanically distributed through, but not in chemical union with it, inclosed in a metallic integument, in fringes a patent for caustic alkali inclosed in a metallic integument | 1053 | |
| —Who liable. | ||
| Principals are responsible for infringements by their agent, acting within the scope of his authority, and the legal implication of their concurrence therein will dispense with proof of it | 10 | |
| A principal is not liable for the claim of a patentee under work done by a contractor who held a license, even though he has not paid his license fees or royalty | 195 | |
| —Remedy generally. | ||
| Patent infringement suits are of equitable cognizance, though no injunction has issued, and the patent has expired | 19 | |
| The suit may be brought in any district in which defendant is found, regardless of the place where the infringement was committed | 1061 | |
| Quære, whether state statutes of limitation are applicable to suits for infringement | 19 | |
| The mere discontinuance of a suit and forbearance to sue any of the parties there to for over a year thereafter held not an acquiescence in the infringement | 1053 | |
| Permitting infringement for several years does not waive or impair the patentee's rights, but it deeply affects his claim to an injunction | 10 | |
| ——Preliminary injunction. | ||
| Act Feb. 15. 1819, does not alter the principles on which injunctions are granted, but merely extends the jurisdiction of the court to parties not before falling within it. | 357 | |
| An inventor himself suing for infringement must make oath that he is the true inventor, and this, together with the patent, is adequate proof on which to claim an in junction | 10 | |
| Complainant is not required, in addition to his patent, to present, in the first in stance, full evidence that he is the first inventor. Very slight evidence thereof is sufficient to put defendant on his justification | 10 | |
| An injunction will not be granted unless the right has been settled by suit at law, or the patentee's possession has been undisputed for a long time | 10 | |
| The case should be such as to leave little, if any, doubt in the minds of the court as to the validity of the patent, especially if it rests upon complainant's own showing | 357 | |
| It must be stated in the bill or by affidavit that complainant is the first inventor, and the bill must be sworn to | 357 | |
| Where the patent was not attacked for want of novelty, and the infringement was clear, but it appeared that defendant had publicly used his apparatus for three years without objection, tie application was denied, with leave to renew the motion on defendant's giving security and keeping an account | 585 | |
| The patentee must either show an exclusive possession for such a length of time as to warrant the presumption of right, or show a clear and unquestionable right in the first instance | 978 | |
| It is not a sufficient reason against the awarding of an injunction that it does not furnish plaintiff effectual relief, or that it may be avoided by defendant | 1061 | |
| Assignment by complainant after preliminary injunction granted is no ground on which to dissolve it | 1023 | |
| —Procedure. | ||
| An assignee of a patent has an exclusive right of action for an infringement only where his assignment gives him a whole interest in the patent with or without territorial limitations | 473 | |
| A person having only an exclusive right to manufacture a certain class of articles under a patent cannot sue in his own name for an infringement of such right | 473 | |
| In a suit for infringement of a patent issued to an executor in trust for the devisees of the inventor, both the executor and the devisees should be joined as plaintiffs | 105 | |
| Where the original patent was reissued in divisions, the bill need not aver that each division was for a distinct invention | 1053 | |
| An allegation of the particular claims in fringed is not necessary; a general allegation of infringement is sufficient | 894 | |
| The affidavit annexed to the bill that the patentee was the original and first inventor of the thing patented, can be made by the assignee of the patented, as well as by the patentee himself | 1053 | |
| Whether an invention is patentable is a mixed question of law and fact, and will not, in ordinary cases, be disposed of on demurrer | 831 | |
| Letters patent cannot be attacked by defendant on the ground that they were pro cured by fraud in prosecuting the application before the commissioner | 971 | |
| A license to practice the invention is a complete defense to a suit for infringement, though defendant has not fulfilled his contract | 1223, 1224 | |
| A license under a patent to another is no defense | 272 1385 | |
| Where defendant claims to have manufactured the machines in question under patents issued to him, the only question is one of infringement where complainant produces a patent of prior date | 168 | |
| The construction of the specification in the application is a question for the court | 832 | |
| ——Evidence. | ||
| The production of the patent is prima facie evidence of novelty | 832 | |
| Testimony of eminent chemists and books of reputation in science and art are competent evidence that a coloring matter patented was not previously known | 10 | |
| Where defendants offered no testimony, held the infringement was sufficiently proved by testimony of their admissions that they had sold certain articles, which were substantially the same as the articles described in plaintiffs patent | 897 | |
| —Accounting: Damages. | ||
| An account of profits taken before a master should be made up to the time of the hearing before him | 722 | |
| Where defendants have not all been jointly concerned in the infringement for the whole time covered by the account their several liability must be apportioned in making up the decree | 722 | |
| Computation of profits in the use of an invention in producing fat acids and glycerin from fatty bodies | 1224 | |
| Interest will be allowed on the profits to the date of the master's report | 722 | |
| Necessary expenditures for counsel fees and other charges, though not taxable costs, cannot be allowed as part of plaintiff's dam ages | 103 | |
| A verdict making such allowance under the court's direction will not be set aside where the misdirection was not assigned as a reason for new trial, and the same result might have been reached by trebling the damages | 103 | |
| Interest by way of damages may be given by the jury | 709 | |
| Various particular inventions and patents. | ||
| Boiler. Reissue No. 3,618 (original No. 93.244), for feed-water heater and filter, held valid and infringed | 95 | |
| Boots and Shoes. Nos. 28,181. 39,546, 42,555, for improvements in machines for burnishing the edges of soles and heels of boots and shoes, held not infringed | 544 | |
| Candles. No. 12,492, for improvement in machine for making candles, held valid and infringed | 902 | |
| Clocks. No. 84,517. for improved pallet of clock escapement, held invalid for want of novelty | 859 | |
| Cofhn handles. Patent to Strong of December 14, 1869. for improvement in, held void for want of novelty | 225 | |
| Corsets. Reissue No. 6,100 (original No. 97.418), for improvement, held valid and infringed | 1099 | |
| Furnaces. No. 71,244, for improvement in hot-air furnaces, held valid | 894 | |
| Glycerine. No. 11,766, for a process for producing fat acids and glycerine, held valid and infringed | 1224, 1231, 1260 | |
| Mop-head. Reissue No. 3.682 (original No. 22,990), for improved mop-head, construed, and held not infringed | 767 | |
| Paints. Reissue No. 1,598 (original No. 40,515), for paints for ship's bottoms, held invalid for want of novelty | 706 | |
| Paints. Reissue No. 4,599 (original No. 40,515), for paints for ship's bottoms, held valid and infringed | 704 | |
| Pavements. Tillman's invention held no infringement of Kirk's invention | 1269 | |
| Pipes. No. 1,980, for machine for making lead pipe by pressure, held valid and in fringed | 709 | |
| Pipes. No. 1,980, for machine for making lead pipe by pressure, construed, and found not to be infringed | 718 | |
| Planing machines. No. 32,904. for improvement, held valid and infringed. | 190 | |
| Rubbing machine. Nos. 75,217 and 75,218, for an apparatus for exercise, held infringed by Wood's patent for an improved apparatus for treating diseases by mechanical movement | 807 | |
| Rubbing machine. No. 77,933, for an oscillating rubbing machine for medical uses, held infringed by Wood's patent for an improved apparatus for treating diseases by mechanical movement | 807 | |
| Sand cutting. No. 108,408, for improvement in cutting and engraving stone, metal, glass, etc., held valid and infringed | 1238 | |
| Sewing machines. Reissue No. 6,550, for improvements, held valid and infringed | 971 | |
| Shoes. Priority of invention of an improvement in pegging machines awarded to Greenough | 336 | |
| Stamper. No. 114,068, for improvement in machines for punching and stamping sheet metal, held null and void, and ordered to be canceled | 315 | |
| Stoves. No. 80,235, for an improved guard plate, held valid and infringed | 272 | |
| Towboat. Patent to John L. Sullivan for improvement held invalid for want of invention | 357 | |
| Tubing. No. 46,507, for improved flexible tubing for illuminating gas, held valid and infringed | 731 | |
| Well. Tillotson's patent for an improved filter well, held invalid for want of novelty | 1272 | |
| Whips. No. 60,606, for improvement, held valid and infringed | 249 | |
| Unlawful marking of articles as patented. | ||
| The penalty of not less than $100 (Act Aug. 29, 1842, § 5) for the offense of marking the word “Patent” on unpatented articles, is a penalty of $100, and no more | 101 | |
| PAYMENT. | ||
| Treasury notes issued under Act 1814, cc. 77, 699, being receivable in payment of duties, taxes, and land debts due the United States, are a good tender in payment of such debts | 1124 | |
| The interest on such notes continues to run until their payment | 1124 | |
| The word “dollars,” as used in a note made in the United States, means lawful money of the United States | 179 | |
| A deposit by a debtor of a sum of money with a third person for his creditor, who assented thereto, or gave the depositary a new credit, will discharge the original debtor | 562 | |
| The ratification by one of the unauthorized act of another cannot have a retroactive effect so as to defeat the rights of intervening third persons | 214 | |
| PILOTS. | ||
| See, also, “Salvage.” | ||
| A claim to half pilotage for a tender and refusal of services, supported only by the oath of the pilot, and contradicted by two witnesses from the other vessel, cannot be sustained where the pilot might have produced other witnesses, whose absence he did not account for | 1014 1386 | |
| PLEADING AT LAW. | ||
| In an action for goods sold by a firm, plaintiffs must prove themselves to be the firm | 1197 | |
| The assignee of a note assigned by a firm need not aver and prove the names of the persons who composed the firm | 1033 | |
| A general averment of the citizenship of the plaintiff is sufficient | 1033 | |
| In case of a plea of limitations and a general demurrer defendant was allowed to withdraw the latter | 345 | |
| The powers of the court in cases of amendments are liberally exercised to promote justice | 1202 | |
| A declaration in an action brought in the name of a firm may be amended by inserting the names of the persons who compose the firm | 1196 | |
| In a suit on several promissory notes, held that an amendment was proper which added a count on another note embraced in the same transaction | 1202 | |
| An error of the attorney in stating the name of defendant as “James” instead of “William” may be corrected | 1266 | |
| A party will be allowed to amend before trial his writ and declaration by striking out the name of one of the defendants | 1323 | |
| An attachment to answer in a plea of trespass on the case founded on a promissory note, having a scrawl for a seal, will be quashed, and plaintiff will not have leave to amend, and to declare in debt | 839 | |
| An administrator may be permitted to amend by adding a plea where judgments have been obtained to the amount of the as sets in his hands since he first pleaded | 824 | |
| A note, stating on its face where it is payable, cannot be given in evidence on a count on a note omitting such description, but it is admissible on account for money had and received | 157 | |
| Under a statute providing that the writing on which the suit is founded is receivable without proof of execution, unless the execution is denied, plaintiff must prove an indorsement, where he relies upon the same, but the suit is not founded thereon | 256 | |
| The plea of nonassumpsit puts plaintiff to the proof of all material averments in his declaration, and where he relies on an indorsement he must prove it | 256 | |
| Where an unsworn plea is put in, denying the instrument on which the action is founded or the indorsement of it, the note and the indorsement as averred in the declaration are admitted | 936 | |
| A plea which admits the execution of an instrument sued on and sets up matter in avoidance is not objectionable, as amounting to the general issue | 963 | |
| Under the plea of non assumpsit, a former recovery upon attachment in a court of another jurisdiction is admissible in evidence | 162 | |
| in an action for deceit in selling goods fraudulently marked with plaintiff's trade mark, evidence may be given of any number of sales under a count for selling on a particular day and divers others between that and the date of the writ | 744 | |
| In an action for an escape, the record is inadmissible where varying from the judgment described in the declaration | 472 | |
| PLEADING IN ADMIRALTY. | ||
| Separate and distinct trespasses cannot be joined in the same libel against defendants who are not jointly liable | 957 | |
| A libel for a tort will be dismissed unless it contain on its face sufficient averments as to place to show that it is within the admiralty jurisdiction | 957 | |
| A supplemental libel, filed before the process is returnable, becomes part of the pleadings, without further notice to respondent, and he is bound to answer it | 942 | |
| An objection that the demand in suit is stale or barred by the statute of limitation cannot be made without being properly stated in the pleadings | 491 | |
| Where respondent has been arrested in a suit in personam, the answer is not filed, within tie meaning of the eighteenth rule, until bail is perfected | 942 | |
| An answer to a libel for information must be full and explicit to each article | 401 | |
| A plea to the jurisdiction can only be interposed by defendant himself in propria persona, and on oath | 824 | |
| A replication merely denying the truth of the answer is not required in the district of Massachusetts | 605 | |
| Where libelant relies on new matter in avoidance, he should file a supplemental libel, which respondent should answer | 605 | |
| A party who sets up an admiralty lien which fails cannot set up and rely upon a common-law or statutory lien. (Reversing 758.) | 756 | |
| A charter party under seal, made out in the name of a person who acted merely as agent for another, without stating that fact, is admissible in evidence on a libel for breach of contract brought by the principal | 647, 648 | |
| PLEADING IN EQUITY. | ||
| Copies of deeds filed with the bill as exhibits become a part of it and can be objected to only before the hearing | 436 | |
| A plea for want of parties is not matter in abatement, but goes in bar to the whole bill | 1331 | |
| A general answer overrules the pleas | 778 | |
| A denial according to defendants “recollection and belief,” in an answer to a direct charge of a thing done by defendant, will be treated as a mere evasion | 778 | |
| Matter of avoidance in an answer responsive to the bill on a motion for an injunction is treated as the affidavit of defendant. On the trial it must be proved | 1331 | |
| An answer admitting the right of complainant, but setting up new matter in bar, or an affirmative claim, or averring a discharge, is not evidence in defendant's favor. | 1243 | |
| A general allegation of fraud and duress is not sufficient | 362 | |
| Every material averment in the bill not denied is admitted | 436 | |
| Matters germane to and connected with the subject-matter of a suit may be introduced by cross bill, although new, and not mentioned in the original bill | 459 | |
| Matters existing at the time of filing the bill and omitted therefrom should be brought in by amendment, but matters arising there after and after answer filed can only be brought in by a supplemental bill | 525 | |
| Leave will not be given to file a supple mental answer based upon a fact which was known to the party at the time of the original answer, and was not omitted through mistake | 476 | |
| PLEDGE. | ||
| Corporate stock is bound for the payment of interest, where it is pledged for the redemption of certificates of debt, which in turn bind the debtor for the payment of “the sum therein mentioned and the interest thereon.” | 518 | |
| POWERS. | ||
| A power of attorney, which authorizes a conveyance to be made in as full and ample 1387a manner as the principal could execute, authorizes a deed with covenants of general warranty | 615 | |
| PRACTICE AT LAW. | ||
| Plaintiff, who has offered competent evidence, cannot be nonsuited against his consent | 1027 | |
| Where no declaration or plea has been filed, a rule to try or non pros, cannot be en forced | 348 | |
| After the court has given its decision on a plea of nui tiel record, it is too late to take a nonsuit | 59 | |
| Where there are no parties litigant before the court, original papers filed may be with drawn without leaving copies | 1349 | |
| PRACTICE IN ADMIRALTY. | ||
| On a libel to recover possession of a vessel wrongfully taken from the owner, brought against the wrongdoer and a purchaser from him in possession, where no decree for damages is asked against the wrong doer, the libel against him will be dismissed, without costs | 1179 | |
| A motion by libelants to strike from the record as a party libelant the name of a person who is a mere agent will be granted where it does not appear that respondent will be deprived of any means of defense thereby | 1050 | |
| Testimony given viva voce in open court should be taken down by way of narrative, and not by way of questions and answers | 594 | |
| Objection to the right of a person to intervene as claimant cannot be taken for the first time at the hearing | 952 | |
| Advantage must be taken of the failure to file a replication when evidence is offered at the hearing, or it will be held to be waived | 942 | |
| Adm. Rule 53, requiring respondents in a cross libel to give security to respond in damages as claimed therein, applies as well to actions in rem as to those in personam | 1355 | |
| A vessel which has been once arrested and discharged on a stipulation for her value cannot be rearrested for the same cause of action, though the former action was discontinued by consent | 883, 884 | |
| The circuit court on appeal will give leave to amend by striking out the names of par ties improperly introduced, where necessary to enable it to dispose of the appeal upon its real and substantial merits | 773 | |
| A decree of the district court will not be opened, and an amended answer allowed to be filed, on the ground of the subsequent discovery of a prior decision of the circuit court in conflict therewith | 1009 | |
| PRACTICE IN EQUITY. | ||
| The authority to refer to a master is inherent in the courts of the United States in the exercise of their chancery jurisdiction | 1092 | |
| A master's report cannot be objected to on the ground that he was not sworn, where the order of reference did not require him to be sworn | 1092 | |
| Exceptions will not be allowed where made under circumstances calculated to effect a surprise on the party | 436 | |
| The discontinuance of proceedings for infringement of a patent does not estop complainant from bringing a second suit | 1053 | |
| A party is not entitled to bring a bill of review unless he obeys and performs the decree | 500 | |
| On filing a bill of review, complainant must give security, or deposit a sum of money for satisfying the costs, and dam ages for delay | 500 | |
| Where complainant fails to give security or make a deposit, the bill will not be instantly dismissed, but he will be required, on motion, to give the security or make the deposit | 500 | |
| PRINCIPAL AND AGENT. | ||
| See, also, “Factors and Brokers”; “Master and Servant.” | ||
| A power of attorney, sent by mail to a person, which never came to his possession, is not operative | 1186 | |
| A letter from a part owner of a steam boat, requesting another to advertise the writer's interest for sale, and in thus advertising to act as his agent, confers no authority to sell | 1186 | |
| But where such part owner adopts or ratifies a sale made by such agent he can not subsequently disaffirm it | 1186 | |
| An agent, unless expressly authorized, cannot bind his principal by receiving in satisfaction of a note held by him for collection a greatly depreciated currency, which is not a legal tender | 179 | |
| An agent for subscriptions or a canvasser for books has no right to cancel subscriptions or to transfer them to another party | 130 | |
| An agent or canvasser, who has taken orders or subscriptions for a book, is not liable to the publisher except as a guarantor, or where bad faith is shown | 130 | |
| A collection agent, who transmits bills to his private agent, under an arrangement whereby the latter credits him personally with the proceeds, is personally liable for a loss caused by the failure of any of the parties | 609 | |
| Money paid on account of suretyship for an agent in a matter where he is acting for the principal, and within the scope of his authority, creates a debt against the principal | 1199, 1200 | |
| PRINCIPAL AND SURETY. | ||
| To release a surety, the holder of a note must, for a valuable consideration, give time to the principal | 477 | |
| The surety is not discharged where time is given the principal at his instance, or with his consent | 477 | |
| The surety is not discharged by a confession of judgment at the first term, with stay of execution until the second, where it appears that in the ordinary course of the business of the court a judgment could not have been obtained before the second term | 477 | |
| Sureties on a replevin bond are entitled to have their lands sold under the law in force at the date of the bond | 115 | |
| The liability of a surety for a debt, to indemnify him against which the principal has contracted to deliver certain property in process of manufacture, will not justify a court of equity in taking such property out of the hands of innocent third persons, whose rights have intervened | 642 | |
| An indorser of a note is entitled to the benefit of a deed of trust given by the maker to indemnify a subsequent indorser, as against the holders of subsequent deeds of trust who took with, knowledge thereof | 497 | |
| PRIZE. | ||
| An innocent shipment will share the fate of the vessel and other cargo, where an attempt has been made to violate a blockade of which the shipper had notice | 407 | |
| Where the testimony of witnesses from the delinquent vessel is dispensed with 1388adequate proof must be supplied aliunde of the delictum charged | 1014 | |
| Libelants were allowed 30 days' time to produce such evidence | 1014 | |
| Claimant has the burden of showing by clear evidence that the vessel was compelled to enter the blockaded port, as alleged, by overwhelming necessity, arising from injuries received at sea, and the loss of fuel, water, and provisions | 402 | |
| The prize property will be sold on petition stating that it is in a perishing condition | 130 | |
| Vessel and cargo acquitted, with costs, there having been no probable cause for their seizure | 577 | |
| Vessel and cargo condemned for an at tempt to violate the blockade of Beaufort, N. C | 346 | |
| Vessel and cargo condemned for violation of blockade | 679 | |
| An appeal to the circuit court from a decree of condemnation operates as a stay of all proceedings in the district court | 406 | |
| PUBLIC LANDS. | ||
| See, also, “Grant.” | ||
| Effect of certificate from commissioners of Virginia as to lands subsequently found to be within the limits of Pennsylvania | 499 | |
| An occupation entry in Tennessee, made without an occupancy, held good except as against persons who entered their claims as soon as the preference in favor of occupants ceased | 1062 | |
| An unapproved Mexican grant, not segregated from the public domain before the treaty of Guadalupe Hidalgo, gives no rights except against a trespasser | 1338 | |
| A coclaimant of a Mexican grant, who presents his separate claim for his half, and denies the execution of an alleged deed by him to the other, is entitled to a confirmation, as against the United States | 1182 | |
| The neglect to support a petition for land by evidence within two years after it is presented to the board of land commissioners does not bring the claim within the limitation of Act March 3, 1851, § 13 | 521 | |
| Land held not “mineral land,” within the meaning of a treaty in relation to its purchase, because a coal deposit underlies it | 257 | |
| Where a settler under the donation act fraudulently procures a certificate and patent to his wife's share, equity has jurisdiction to correct the error by requiring him to convey the premises to her | 32 | |
| RAILROAD COMPANIES. | ||
| A railroad corporation, though its shares are owned by private individuals, is a public corporation | 652 | |
| Railroad aid bonds held validated by Act Kan. Feb. 25, 1868, as to irregularities in the order of submission, and the location of the line of the road | 900 | |
| Where county railway aid bonds were is sued pending certiorari to review the decision of the county judge that the parties petitioning for the issuance of the bonds were a majority of the taxpayers, etc., held, that after a reversal of the judgment the bonds were void | 62 | |
| Under authority to issue bonds to a certain company, held, that bonds might be is sued to a consolidated company, of which the original company formed a part, where the facts were recited in the bond | 968 | |
| Where county bonds are properly signed and sealed by the officers of the county, it is no defense to an action on the coupons that they are signed by only one of the county officers | 901 | |
| A declaration upon county bonds should show by averment, or by recital in the bonds made part thereof, that the bonds were issued for some authorized purpose or object | 901 | |
| Under a sale of a road, the franchises, right of way, depots, rolling stock, tools, and all other property, real, personal, and mixed, held, that the purchaser was not entitled to surplus earnings in the hands of the receiver, but was entitled to all property used to carry on the business of the road and keep it in repair | 218 | |
| On a railroad mortgage foreclosure, interest coupons, which have been partly paid, will he paid before coupons coming due after wards; and detached coupons in the hands of third parties will be paid before the bonds themselves | 22 | |
| Real Property. | ||
| See, also, “Adverse Possession”; “Deed”; “Ejectment”: “Estates”; “Grant”; “Public Lands.” | ||
| REFERENCE. | ||
| Additional exceptions, discovered since the period for filing exceptions to the report has passed, will be allowed to be filed | 908 | |
| RELEASE AND DISCHARGE. | ||
| The presumption in favor of the validity of a receipt will prevail in the absence of evidence that it was obtained by fraud, mistake, or ignorance of the rights of the party | 1036 | |
| REMOVAL OF CAUSES. | ||
| See, also, “Courts.” | ||
| Right of removal. | ||
| A corporation created by the laws of a foreign country is an “alien” (Act 1789, § 12), and when sued by a citizen may re move the cause | 855 | |
| The right of one of the class of corporations mentioned in Rev. St. § 640, when sued in a state court to remove the cause, does not depend upon the citizenship of the parties | 871 | |
| The fact that a state is plaintiff in the action will not affect the right of removal | 871 | |
| Where it is shown that the controversy is wholly between citizens of different states, and can be fully determined as between them, the cause is removable, though some of the formal or nominal plaintiffs or defendants may be citizens of the same state | 792 | |
| A criminal prosecution against a negro cannot be removed from the state to the federal court, on the ground of local prejudice against his race and color, preventing a fair trial | 869 | |
| Time of removal. | ||
| After a case regularly en the calendar for trial goes over the term, though by consent of the parties, it is not thereafter removable | 177 | |
| Proceedings to obtain. | ||
| The filing of the petition for removal is a sufficient appearance to the suit to give the court jurisdiction of the person | 538 | |
| A party who fails to file a petition for removal at the time of entering his appearance will be precluded from doing so at a subsequent stage of the proceedings | 538 | |
| Under the act of 1789, the petition for removal need not be verified by affidavit, but under the acts of 1833, 1863, 1866, and 1867, the petition must be verified by affidavit | 538 1389 | |
| The federal, and not the state, court has the power to determine whether the case is a proper one for removal under the act of congress. | 792 | |
| The truth of an averment that defendant has a defense arising under or by virtue of tie constitution or laws of the United States cannot be inquired into upon motion to remand. | 871 | |
| Effect of removal: Subsequent proceedings. | ||
| In the case of a suit on a nonnegotiable contract, brought by assignees thereof, held, after removal the cast should be continued in the name of the assignor, where the federal court had not adopted the state statute requiring suits to be brought in the name of the real party in interest. | 474 | |
| REPLEVIN. | ||
| Goods in the hands of an officer of the law under an attachment levy cannot be replevied. | 724 | |
| The failure of an attorney to enter an appearance as requested is no ground for reinstating the action discontinued at the return term of the writ on default of defendant. | 1098 | |
| Where the title to the goods is in issue, a new trial will be granted where defendant obtained a verdict for the value of the goods, as well as damages for taking them. | 1028 | |
| REVIEW, WRIT OF. | ||
| Erroneous proceedings must be reversed on a writ of error, or they are binding. | 1070 | |
| RIGHT, WRIT OF. | ||
| The seisin shown by demandants will be presumed to continue until some adverse seisin or disseisin is shown. | 946 | |
| Though persons entering upon state lands are to be deemed mere intruders, yet, as against all others, the entry will be sufficient seisin to support a writ of right. | 946 | |
| RULES OF COURT. | ||
| Signing a bill as “solicitor for complainant” in a court in which there is no distinction between an attorney and a counsel or, is a sufficient compliance with equity rule 24. requiring all bills to be signed by “counsel.” | 107 | |
| SALE. | ||
| See, also, “Vendor and Purchaser.” | ||
| Under a contract to pay for goods as delivered, and to have an agent at the destination to receive the goods from the carrier, held, that the risk of transportation was on the seller. | 1031 | |
| In case of loss in transit, the rule of dam ages is the difference between the contract price and the market value at the time and place of the delivery. | 1031 | |
| SALVAGE. | ||
| Right to salvage compensation. | ||
| The contract of seamen is dissolved by the abandonment of their vessel in distress at sea, and where the rescuing vessel subsequently falls in with the derelict, and they perform services in saving part of her cargo, they are entitled to salvage. | 752 | |
| Capture by a public or private armed vessel of a belligerent power or by a pirate terminates or suspends the contract, which binds the seamen to the ship, and rescue or recapture by the master and crew en titles them to salvage. | 262 | |
| Capture by a Confederate cruiser in July, 1861, was capture by a belligerent within the rule. | 262 | |
| The master, being also a part owner, is entitled to salvage as against the other part owners and the shipper or insurers of the cargo. | 262 | |
| Where a vessel is in such peril as to be the subject of salvage service, a pilot is not bound to give his aid for mere pilotage. | 440 | |
| The fact that the services were rendered in response to a signal for a pilot will not prevent the recovery of salvage compensation. | 440 | |
| A wrecking corporation cannot be considered as a salvor, and where the masters and crews of their vessels are not entitled to a share in the recovery, they cannot be considered. | 226 | |
| Persons going out to and securing a canal boat, with no one on board, cut adrift from her moorings by ice in New York harbor, and carried by the tide towards the sea, held entitled to salvage compensation. | 94 | |
| A steamboat towing other boats from a wharf to prevent them from coming in con tact with a vessel which is on fire is entitled not to salvage, but merely to towage compensation. | 34 | |
| There is no usage or custom of binding obligation whereby steam tugs in New York harbor are obliged to render towage services to each other without compensation when found disabled and in need of assistance within their common field of employment. | 323 | |
| A vessel in distress may refuse the services of salvors, but, where services are accepted without stipulation for absolute compensation, the capacity in which they wore rendered will not prevent a recovery of salvage compensation. | 440 | |
| Contracts for salvage services. | ||
| Aid in saving a vessel, from a sea peril, rendered under a contract, is a salvage service where there is no stipulation for absolute compensation. | 440 | |
| Salvage contracts will be set aside, not merely in case of fraud or extortion, but where the compensation is excessive. | 322 | |
| A contract to pay $2,000 for towing a rudderless bark from her anchorage off the highlands below Sandy Hook, where she was in no immediate danger, to New York, held excessive, and the allowance was reduced to $1,000. | 322 | |
| Services of a wrecking tug in towing a ship from a dangerous shoal, which proceeded upon a negotiation for compensation not involving any idea of salvage, and not accepted as a salvage service, held, should not be compensated as such. | 226, 229 | |
| Forfeiture or reduction of salvage. | ||
| Gross neglect or wanton injury to the property saved works a forfeiture of all claim for salvage, and renders the salvors liable for damages. | 383 | |
| An allowance of $23,000 was reduced $5,000 for the failure of a wrecking master to make careful soundings, resulting in an ineffectual effort to heave the vessel off of a shoal in the wrong direction. | 378 | |
| Salvors must land the property saved at the nearest port of safety, and see that it is properly cared for. | 383 | |
| Salvors who carry the property stripped from a vessel directly past her home port, where her name and port were painted on her stern, held guilty of embezzlement. | 383 | |
| Amount. | ||
| The risk run, the service rendered, and the amount of property saved will all be considered in determining the compensation. | 806 1390 | |
| Associations for wrecking purposes will be encouraged by the compensation awarded for salvage. | 440 | |
| The award for services rendered by wrecking vessels is not to be measured on the principle of salvage, but rather on that of a quantum meruit. | 330 | |
| The owners of salved property cannot avail themselves of a contract, made by the salvor Wrecking tug with marine insurance companies, to give services on their request to vessels in need of aid, at $15 per hour, except as evidence of what might be regarded as a reasonable reward for services rendered. | 330 | |
| The value of a wrecking tug is not to be considered where the salvage service consists in towing merely, which might have been as well done by a vessel of less power. | 323 | |
| A wrecking tug allowed $25 per hour for towing into New York harbor in cold and tempestuous weather a bark anchored on the south shore of Long Island. | 330 | |
| One-third allowed on a gross value of 54,500, in the case of a bark drifting at sea, with the greater part of her crew dead, and the rest rendered helpless by disease, discovered 40 miles from a port. | 333 | |
| $1,000 allowed a tug for towing into New York harbor a steamer, whose machinery was disabled by a collision, drifting out to sea in a storm. | 323 | |
| $11,931 awarded on a net value of $35,821, in the case of a wreck upon the Florida Reef | 835 | |
| $15,000 allowed to two tugs as towage compensation for towing a ship worth, with cargo, $250,000, from Romer Shoal into the port of New York 226, | 229 | |
| $23,000 allowed upon a net value of $127, 000 to 12 wrecking vessels, carrying 108 men, for services rendered a vessel aground upon Couch Reef | 378 | |
| 20 per cent., 50 per cent, and 60 per cent, allowed, respectively, on net vab of $23,904, $7,967, and $1,283, in the cube of three expeditions to a wreck | 834 | |
| Remedies for recovery. | ||
| The crew of a salvor vessel may recover their share of the reward by libel in admiralty from the owners, who have received salvage on a settlement with the owners of the property saved | 275 | |
| The fact that the owners of the salvor vessel did not consider the services of the crew in making the settlement is immaterial where they signed a receipt “for the owners, master, and crew.” | 275 | |
| The lien for salvage is lost by an assignment of the claim | 333 | |
| Apportionment. | ||
| The owners and master of a lighter were allowed three-fourths of the award, where the actual work of lightering was done by the crew of the vessel in distress | 275 | |
| SCIRE FACIAS. | ||
| A sci. fa., in which the name of one person is written for another by mistake, may be amended | 727 | |
| SEAL. | ||
| There cannot be a joint seal for diverse persons not incorporated | 1291 | |
| SEAMEN. | ||
| See, also, “Admiralty”; “Maritime Liens.” | ||
| The contract of shipment. | ||
| A description of the voyage as “from Boston to one or more ports south, thence to Pass one or more ports in Europe, and back to a port of discharge in the United States,” held sufficiently certain | 1064 | |
| A port where colored seamen are obliged to remain in jail or on board the vessel while she stays there, is not a port of discharge within the United States | 225 | |
| A parol understanding that the vessel was not to complete the voyage described in the shipping articles is not admissible | 1064 | |
| Inability to obtain freight is not such a necessity as absolves the owner from his contract to perform the voyage described in the articles | 1064 | |
| Retaining seamen on board, by direction of the owner, after the determination of the voyage for which they shipped, amounts to a new contract for the return voyage upon the same terms as the outward voyage | 1036 | |
| New shipping articles at reduced wages, signed by colored seamen, under protest, in a port where they are obliged to remain in jail or on board the vessel while she stays there, are not binding | 225 | |
| Parol evidence is admissible to show that illiterate seamen signed a contract not read to them, which differed from their oral agreement | 702 | |
| Seamen, who sign articles without reading them, after their services have commenced under an oral contract, will not be held bound by the written agreement | 537 | |
| Shipping articles signed by the seamen after they leave port are not binding upon them and they may leave at any time with out incurring the penalty of desertion | 914 | |
| When a seaman is incorrigibly disobedient, and will not submit, and offer to do duty and make amends, the master may discharge him, or correct and confine him on board, or dock him of his provisions | 1132 | |
| Where the seaman submits to the master's authority, in ordinary cases, his services must be accepted | 1132 | |
| The crew are justified in leaving the ship, and may recover full wages, where they are fed on unwholesome or spoiled provisions | 560 | |
| A seaman falling sick during the voyage is to be cured at the expense of the vessel | 560 | |
| Conduct of master or mate in respect to seamen. | ||
| The relative duties of the inferior officers and seamen to the master and of him to them defined | 1024 | |
| A master who commences a dispute with a seaman by illegal and improper behavior risks the consequences | 1132 | |
| Where a master, being present, does not interfere to prevent an assault on a seaman by his officers, he is jointly liable for the tort | 957 | |
| A receipt given on payment of wages, stating that it is in full for all demands for assault, battery, etc., will not bar a suit for damages | 957 | |
| Wages—Right to. | ||
| Persons not strictly mariners may charge a vessel or owners in admiralty for services on ship board, which were necessary to her navigation or safety | 408 | |
| The services of a manservant or attend ant upon the master, who contracted a sickness in a foreign port, are not a charge upon the vessel or her owners | 408 | |
| Seamen, who, after stranding of the vessel, are retained at a near-by port, under direction of the master, until hope of getting her off is abandoned, are entitled to wages to the time of their actual discharge | 701 | |
| Where the vessel is lost on her homeward voyage, full wages are due to her arrival at the last port of delivery of the outward cargo, and half wages from that time until her departure from the last port at which the return cargo is taken on board | 1036 1391 | |
| A mate improperly dismissed from his office is entitled to wages, and is not bound to perform the duties of a common seaman | 1024 | |
| In the case of a skillful, sober, and diligent first mate, whom the master frequently abused in the presence of the crew, held, that his dismissal was not justified by frequent disrespectful allusions made to members of the crew in his absence | 1024 | |
| A discharge ordered by the consul in a foreign port on clear prima facie proofs of criminal conduct, will bar a claim to continuing wages | 1294 | |
| The propriety of the consul's interference is to be determined upon the facts before him at the time, and not by the case which may be afterwards shown on trial | 1294 | |
| The master can claim no benefit from a discharge by a consul in a foreign port, where it was obtained by deceit or collusion practiced by the master | 1294 | |
| ——Remedies for recovery. | ||
| The clerk of a steamboat is a mariner, and entitled to a lien for wages | 379 | |
| The wages are not payable until the expiration of the period allowed for collecting the freight | 560 | |
| A suit for wages cannot be maintained until the contract of service is performed or re leased | 489 | |
| The right to a personal suit is not suspended by Act 1790, which provides that process shall not issue against the vessel until 10 days after she has arrived at her last port of discharge | 443 | |
| Time given beyond 15 days for unloading, where it appeared that the vessel could not be unloaded within such time | 1069 | |
| A receipt for less than the amount due will not be set aside where the legal rights of the party were doubtful, honestly contested, and opportunity given him to satisfy himself in relation thereto | 1036 | |
| ——Deductions: Extinguishment, etc. | ||
| In the case of a special indulgence to a seaman, wages cannot be deducted for failure to render himself on board at the time appointed in the articles | 1069 | |
| A seaman cannot recover wages during the time that he was imprisoned by local authorities in the home port on a charge of mutiny | 942 | |
| Such imprisonment may be deemed an adequate punishment, and prevent a subtraction of prior wages | 942 | |
| The loss or damage accruing to the vessel by negligence or crime of the seamen may be set off against wages | 1132 | |
| The wrongful assault by a mate on one of the seamen on the voyage, to the damage of the ship, may be set off against his claim for wages, though the deduction is not entered in the log nor claimed in the statement made to the shipping master | 873 | |
| A usage or custom in fishing voyages to carry only a partial supply of bait, relying upon catching sufficient fish to supply the deficiency, is reasonable | 702 | |
| All the crew must contribute to make up the loss of cargo by embezzlement, but proof is admissible to show the innocence of some | 350 | |
| Seamen forfeit all wages by refusing duty before a fishing voyage is ended, and obliging the master to return with only part of a fare | 702 | |
| Seamen employed by the voyage or month, who leave before the expiration of their term of service, without good cause or the consent of the master, forfeit wages previously earned | 489 | |
| A forfeiture of wages may be decreed for the refusal of the seamen to unload and reload cargo on the voyage, but not for such ii refusal at the last port of delivery | 560 | |
| A desertion does not work a forfeiture of all wages by the general maritime law. The court has power to mitigate the forfeiture according to the circumstances | 483 | |
| Act June 7. 1872, § 23, which requires the master to furnish to seamen or to the commissioner an account of wages and deductions to be made therefrom 48 hours before paying off, does not apply to the case of a seaman forfeiting his wages by desertion, which is provided for by section 55 | 47 | |
| When the crime of a sailor is beyond the master's power to punish, he should put him in irons, and bring him to justice on the return home | 1132 | |
| Wages are not forfeited by acts for which seamen are amenable to criminal prosecution | 1132 | |
| Broils, assaults on or resistance to masters do not ordinarily operate to forfeit wages, nor do they amount to mutiny or re volt, punishable criminally | 1132 | |
| SHIPPING. | ||
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Carriers”; “Collision”; “Demurrage”; “Maritime Liens”; “Pilots”; “Salvage”; “Seamen”; “Towage”; “Wharves.” | ||
| Public regulation. | ||
| A voyage to a foreign port within the usual voyage of vessels licensed for the fisheries is not a “foreign voyage.” (Act Feb. 18, 1793, c. 8.) | 1162 | |
| A whaling voyage is not a foreign voyage, within the meaning of Act 1803, c. 62, and a bond executed under, but not required by, nor in accordance with, such act, is a nullity | 611 | |
| A single act of trading will forfeit a vessel licensed for the fisheries. (Act Feb. 18, 1793, § 32.) | 494 | |
| The carrying of cattle from an island to the main land in going out or returning, when done gratuitously, is not an act of trading. | 494 | |
| A vessel engaged in transporting merchandise is not subject to a penalty, for failure to have her hull and boilers inspected under Act Aug. 30, 1852 | 401 | |
| A vessel engaged in carrying freight between ports in different states, which on one occasion carries a load of passengers for purposes of a prize fight between ports in the same state, is not subject to a penalty for failure to comply with Act Aug. 30, 1852, §§ 5, 9 | 1011 | |
| A steamboat running on a ferry line between New York and Port Richmond is a ferryboat, within Act Aug. 30, 1852. § 42, and is not obliged to have on board a licensed pilot and a licensed engineer | 586 | |
| In the ease of a ferryboat running between Astoria and New York on the East river, proof of the carriage of passengers and merchandise is sufficient to throw upon claimants the burden of showing that such passengers and freight were not destined for other states. (Act Feb. 28, 1871, § 11.) | 424 | |
| Title to and possession of vessel. | ||
| Rev. St. § 4192, requiring the conveyance or mortgage of a vessel to be recorded, is inapplicable to a vessel which has never been enrolled or licensed | 1179 | |
| A bona fide purchaser of a vessel from the owner of record will be protected as against a prior unrecorded sale | 426 | |
| A purchaser at a sheriff's sale, without notice or a bona fide purchaser for value from the legal owner of record, will be protected as against a sheriff who has allowed the attached vessel to escape, and has paid 1392a claim for supplies and repairs subsequently furnished | 428 | |
| A statute sale, if fraudulent, will not bind the owner unless in favor of a bona fide purchaser for a valuable consideration, without notice, actual or constructive, or the fraud | 1277 | |
| A wreck sale made by authority of state laws is valid to pass title to the property, where there is no owner or agent present to protect or claim it | 1277 | |
| A stipulation given to a minority owner for the safe return of a vessel “from the said voyage to the port at New York” is not satisfied by her return to Boston, from which port she is sent out without objections from the minority owner, and lost | 445 | |
| The amount due upon an accounting between the majority and minority owners cannot be applied to diminish the liability of the stipulators on their bond | 445 | |
| The forcible taking possession of a vessel is a maritime tort, and no rights can be acquired thereunder, either by the wrongdoer or purchaser from him | 1179 | |
| Members of a voluntary association, who purchase a vessel and stores in the name of certain persons as their agents, have a right to a decree for title and possession, except as to property purchased without their authority | 696 | |
| An attachment of the vessel at common law by a creditor of the agents in a suit against them will not affect the right of the real owners to a decree for title and possession | 696 | |
| A material man's lien is not affected by a decree in such suit | 696 | |
| In a petitory or possessory suit material men cannot intervene to enforce a lien which they may have upon the vessel | 696 | |
| The master. | ||
| The master of a ship has not, in virtue of his office, any authority to sell a ship, except in cases of extreme necessity, where the vessel is wrecked or unnavigable, etc | 1277 | |
| As between the owner and purchaser, a sale without necessity, though made in good faith, is invalid | 1277 | |
| The vessel owner is liable where another is injured from the want of care or skill of the master | 156 | |
| Part owners are liable for the torts of one of their number while acting as master in the execution of the business in which the boat is engaged | 735 | |
| The vessel owners are not liable for personal torts committed by the master without their knowledge or approval | 408 | |
| The owners are estopped to assert that one acting as master had no right as such to order stores for the voyage, where they permitted him to order the articles and retained them | 236 | |
| Under the custom of the Hudson river, to pay a master for a season's work of 10 months, held, that the master was entitled to a proportionate amount for a part of the season | 491 | |
| The master is entitled to an extra allowance for services rendered out of the line of his duty, such as painting the ship | 235 | |
| Employment of vessel. | ||
| A lessee of a vessel which explodes from some hidden defect is not liable to the lessor | 76 | |
| A stipulation in a lease of a vessel that she was received in good condition estops the lessee, where she is lost by explosion, from defending against a suit by the owner on the ground of any defects which were known or might have been known by him or his servants | 76 | |
| Where the nonfulfillment of a contract to transport a passenger is caused by shipwreck or other casualty, the passenger may recover back passage money paid in advance, or damages | 158 | |
| In such case the passenger is obliged to wait a reasonable time for repairs, only where the interruption was not caused by an original defect and unseaworthiness in the vessel | 158 | |
| Liabilities of vessels or owners. | ||
| Where the contract for the carriage of a passenger is broken by the interruption of the voyage, he has an action in rem, as well as in personam, to recover back pas sage money paid or damages | 158 | |
| The vessel owners, by abandoning ship and freight, are discharged from personal responsibility for obligations of the master arising ex delicto, both under the general maritime law of Europe and the statutes of Maine | 108 | |
| The liability in the case of a collision on the high seas between vessels of different foreign nations is determined by the law maritime according to the law of nations, and is limited to the value of the ship and freight, which must be abandoned to the injured party | 1006 | |
| A tender in the answer and upon the trial, by a written surrender of defendant's interest in the vessel, held sufficient | 1006 | |
| Where the vessel at fault was subsequently wrecked on her voyage, sold by direction of her owners, and delivered to the purchasers after the libel for collision was filed, held, that the owner waived his exemption from personal liability | 1006 | |
| Limiting liability. | ||
| A suit brought against a part owner of a vessel, who was charterer and owner for the voyage and acting as master, is within Act March 3, 1851, c. 43, exempting vessel owners from personal liability for damages arising out of a collision | 1158 | |
| The whaling equipment, provisions, and supplies of a whaling ship are not within the meaning of the words “ship or vessel,” as used in Act March 3, 1851, § 3, limiting the liability of owners to the value of their interest in the “ship or vessel and her freight then pending.” | 555 | |
| There is no “freight pending” on a whaling voyage within the meaning of the act | 555 | |
| The limited liability act cannot be invoked in an action between foreigners arising out of a collision between foreign vessels on the high seas, where none of the owners are residents of the United States | 1006 | |
| A person cannot take advantage of the limited liability act by answer to a libel for collision, but must institute separate proceedings therefor, for which leave of court is not necessary | 1000 | |
| SLAVERY. | ||
| Act Feb. 12. 1793, providing a procedure for the reclaiming of a fugitive slave escaping into another state, is valid, and the remedy thereunder supersedes the remedy given by state laws | 414 | |
| Right to freedom of slave carried into foreign country and returned with his master. | 702 | |
| Right to freedom of slaves sent out of the state for three years and brought back | 591 | |
| An importation of slaves by the owner of the life estate, though without the consent of the reversioner, held, would entitle them to freedom | 737 | |
| Upon a petition for freedom, defendant may appear and disclaim without entering into the usual recognizance | 970 | |
| A note given for slaves taken to Texas in 1835 in violation of the laws of Mexico, is invalid | 1349 | |
| Forfeiture of vessel built for the slave trade under Act April 20, ISIS, c. 91 | 240 1393 | |
| SPECIFIC PERFORMANCE. | ||
| The specific performance of an agreement is not a matter of right, but rests in the sound discretion of the court | 1313 | |
| Specific performance of an agreement will not be enforced where the decree would be a vain and imperfect act, or where the specific performance might be productive of in justice to the parties | 1313 | |
| Unfair conduct of complainant in relation to a parol agreement to convey lands, is good ground of refusing performance | 1094 | |
| Only those acts are considered as part performance which would operate as a fraud on parties unless the whole contract is executed | 162 | |
| The payment of part of the price is not such an act of part performance as to form the basis of relief in equity | 162 | |
| Otherwise as to possession taken of land, or where improvements are made | 162 | |
| Specific performance will not be decreed where the consideration is grossly inadequate, or the contract is oppressive and against conscience | 436 | |
| Where the agreement admitted by the answer differs from that stated in the bill, complainant must prove the contract aliunde | 1094 | |
| Specific performance of an agreement to convey directed where the party in expectation thereof had been put in possession, and had made valuable and expensive improvements | 1055 | |
| STATES. | ||
| The federal court may take jurisdiction where a state is a party in interest, but not a party to the record of a suit in relation to property of the state in the hands of its agent | 518 | |
| STATUTES. | ||
| See, also, “Constitutional Law.” | ||
| In construing a statute, the whole act must be considered | 236 | |
| The construction put by a state court upon its statute, which is subsequently adopted verbatim by another state, is not controlling where the constitution of the latter shows that a different construction was intended. | 527 | |
| SUBSCRIPTION. | ||
| Subscriptions in aid of college endowments become fixed and legal obligations as soon as the college performs its undertaking | 308 | |
| TAXATION. | ||
| See, also, “Internal Revenue.” | ||
| The legislature, and not the judiciary, is to determine what is a public use for purposes of taxation | 652 | |
| School lands held by the state of Alabama, under Act June 22, 1854, in the state of Nebraska, are not taxable by the latter state | 185 | |
| Placing the property of a corporation in the hands of a receiver does not exempt it from the operation of the tax laws of the jurisdiction in which it lies | 21 | |
| A state statute passed under a compact with the United States exempting lands sold by them therein from taxation for five years from the sale, cannot be repealed, as to prior purchasers, before the termination of such time | 1049 | |
| An assessment of real property should substantially comply with the requirements of the statute by definitely describing the land. (Code Or. p. 898.) | 1289 | |
| An assessment of real property, which contains no valuation except certain figures without mark or sign to indicate for what they stand, is void for uncertainty | 1289 | |
| The court will not, on the petition of rail road receivers appointed by it, enjoin the execution of state tax warrants which are regular on their face, and where the collectors are acting in good faith | 21 | |
| The collection of an illegal tax upon real property will be restrained where its enforcement will result in a cloud upon the title | 1289 | |
| A sale of land for taxes in an Indian reservation not subject to state taxation is void | 576 | |
| A tax sale will not be set aside for an alleged fraudulent combination among bidders, where there were more lands for sale than all wanted, and it does not appear that they did not bid against each other | 517 | |
| A tax deed, made to the assignee of a tax sale certificate assigned by the county clerk without authority of law, is void on its face; and is insufficient to set the statute of limitations in operation | 577 | |
| TELEGRAPH COMPANIES. | ||
| A telegraph company, negligently delivering a forged dispatch, is liable for the dam age thereby sustained, though plaintiff has a remedy ex contractu against a solvent indorser of a forged draft, which was the subject of the dispatch | 230 | |
| TENANCY IN COMMON. | ||
| Where there is no visible adverse seisin of any part of the land, an entry by one of the cotenants gives a seisin of the whole according to their titles | 946 | |
| A tenant in common can recover no more than his own portion of the estate, where he has not disseised his cotenant | 27 | |
| TENDER. | ||
| A tender after suit brought must include costs, though the process has not been served | 424 | |
| TOWAGE. | ||
| See, also, “Collision”; “Salvage.” | ||
| A steamboat owner, calling for the assistance of another steamboat to remove his boat from a position of danger from fire, cannot escape paying for such services on the ground that his boat would have been safe in its original position | 34 | |
| The tug is not liable as a common carrier, but is bound to the exercise of ordinary skill and diligence in taking up, arranging, and managing its tow. | 220 | |
| The tug is prima facie at fault in a case of damages resulting from the slipping of the tow line | 541 | |
| The master of the tug has the duty of making up the tow, and he may exercise his judgment in that regard without reference to directions by the master of the tow | 541 | |
| In passing through the channel of St. Clair Flats, the vessel of the heaviest draft should be placed last | 541 | |
| A vessel with a heavy tow in passing from the North river into the East, river, where the harbor is crowded with vessels at anchor, should pass around Governor's Island | 593 | |
| The failure of canal boats towed through Long Island Sound to have anchors ready for use, where the tug takes shelter in the 1394lea of an island on a storm arising, and to use the same on notice from the master of the tug, where the latter's anchor breaks in the increasing sea, and the boats are cut adrift, will cast upon the tow the burden of the loss | 997 | |
| A tug using ordinary care is not liable for damages to the tow in striking a sunken rock, caused bv the sudden and unexplained shearing of the tow | 220 | |
| A contract for towage at the risk of the tow does not exempt the tug from liability for damages caused to the tow by the negligence of those in charge of the tug | 593 | |
| Where the tow is sunk in a collision without any fault on the part of the tug, the latter's obligation is at an end, and she is under no obligation to mark the wreck by a light or otherwise, so as to prevent injury to other vessels thereby | 495 | |
| The lien for towage is divested by an assignment of the claim | 333 | |
| TRADE-MARKS AND TRADE-NAMES. | ||
| A trade-mark adopted by a partnership may be used by either member after its dissolution, and where one obtains letters of registration in his own name he may be compelled to transfer an equal interest to the other | 734 | |
| An alien manufacturer abroad is entitled to protection in our courts against a fraudulent infringement of his trade-mark in this country | 742, 744 | |
| It is no bar to protection in our courts that a remedy is not reciprocally allowed to aliens in the country to which such owner belongs | 744 | |
| The alien owner in such case is entitled to recover to the extent of his damages in the loss of sales and their profits, though defendant's goods were of inferior quality | 744 | |
| A long delay of alien manufacturers to prosecute after knowledge of a fraudulent use of their trade-mark may be competent proof to show their acquiescence in it, but is not an absolute bar to recovery unless extending to the period of the statute of limitation | 744 | |
| TREATIES. | ||
| See, also, “Extradition.” | ||
| A treaty, whose subject is within the legislative power of congress, may be repealed by congress so far as it is a municipal law | 784 | |
| A promise in a treaty for nondiscriminating import duties comes within the political, and not the judicial, department of the government, and the courts cannot try the question of its observance | 784 | |
| The commissions of a supercargo of a cargo sequestered by the king of the Sicilies is a charge on the indemnity fund provided for by treaty | 54 | |
| TRESPASS. | ||
| Possession in fact or in law is necessary to maintain trespass quare clausum fregit | 727 | |
| TRIAL. | ||
| See, also, “Appeal”: “Continuance”; “Evidence”; “Judgment”: “New Trial”; “Practice;” “Reference”; “Witness.” | ||
| Defendant has the right to open and close in all cases where he holds the affirmative of the issue | 471 | |
| After a special verdict, a motion by plaintiff to enter the verdict on certain counts and nol. pros, the others was granted | 141 | |
| TRUSTS. | ||
| The mere deposit of money in a savings bank, entered in the name of the depositor “in trust for” another person, without notice to him, is not sufficient to show that the money passed to him, especially where he had no knowledge thereof until after the death of the depositor | 154 | |
| The beneficiaries may follow a trust fund into the hands of any one receiving it with notice of the trust | 866 | |
| A trustee who uses trust money in trade is chargeable with all profits which he has made, and in case of loss it must be borne by himself | 1153 | |
| UNITED STATES. | ||
| The United States has no preference in the payment of debts, except in the case of an assignment for the benefit of creditors or a legal insolvency | 908 | |
| Usury. | ||
| See “Discovery.” | ||
| VENDOR AND PURCHASER. | ||
| See, also, “Bankruptcy”; “Deed”; “Grant”; “Sale”; “Specific Performance.” | ||
| A purchaser holding under a deed cannot set up a defect of title to defeat a recovery of the purchase money in an action by the grantor | 615 | |
| In such action defendant cannot set off the amount paid on the compromise of an outstanding claim made without the consent or knowledge of the grantor | 615 | |
| A knowledge of facts which, if traced and understood, will lead to a knowledge of title, is sufficient to charge a purchaser | 700 | |
| The land in an unorganized county in Minnesota is regarded for all purposes, including registry, as being within the territorial limits of the county to which it is attached for judicial purposes | 899 | |
| A vendee of land who never took the title, but resold it to his vendor, taking a bond with surety for the amount due, has no vendor's lien for the same | 234 | |
| A person who has a lien on a lot for improvements made tinder expectation of obtaining a title may enforce his claim against the insolvent owner of the lot as a general creditor | 1056 | |
| War. | ||
| See, also, “Insurance”: “Prize.” | ||
| WASTE. | ||
| A tenant for 99 years, renewable forever, with leave to purchase at a stipulated sum, may be restrained from cutting and selling young and green wood | 1176 | |
| In the District of Columbia, defendant in equity is not bound to discover the waste, unless complainant in his bill expressly waives the forfeiture and penalty | 1176 | |
| WATERS AND WATER COURSES. | ||
| In Rhode Island one does not lose his right to water but by 20 years' adverse occupation. 1395No parol license or acquiescence short of that is enough | 83 | |
| Where parties on opposite sides of a stream between two states each have a water power, and own the land to the center line, so that each owns one-half of a dam, they are tenants in common of the water; and if one construct a canal on his own side, and draw off the water, the other has a right of action which he may enforce by injunction in the state where the canal is built | 83 | |
| In such case the laws which govern are those of the state within whose borders the injurious act is done | 83 | |
| WHARVES. | ||
| A claim for wharfage for a period during which a vessel lay sunk in a pier cannot be enforced in admiralty | 778 | |
| WILLS. | ||
| A will is legally executed where the hand of a testator, by his consent, is guided by another, and he afterwards acknowledges the will | 35 | |
| The presumption is in favor of the sanity of the testator, and the burden of proof is on the party questioning it. Contra, if a previous state of insanity has been established | 35 | |
| Whether a testator had a sound and disposing mind is to be determined by finding whether his mind and memory were sufficiently sound to enable him to understand the business in which he was engaged at the time of executing the will. The only time to be looked to is the time of the execution of the instrument | 35 | |
| Declarations of a party to a deed or will, either before or after its execution, are inadmissible to control its construction or affect its validity | 35 | |
| On an issue as to the validity of a will, evidence for defendant that plaintiff purloined a former will of the testator is inadmissible, there being no purpose to prove the contents of the former will | 35 | |
| The word “estate” will apply to real or personal estate, or to both, according to the manner in which it is used in reference to the respective clauses of the will | 278 | |
| A clause of a will construed as not charging the real estate with a debt | 278 | |
| The renunciation of the provisions in a will by the widow will have no effect on a clause manumitting slaves, where there is sufficient other personal estate to satisfy her claim | 1032 | |
| Interest commences on a pecuniary legacy at the expiration of one year from testator's decease, whatever may be the posture of the estate, where not otherwise specified in the will | 371 | |
| The cases of infant children and of adopted children under age, not otherwise provided for, are exceptions to the rule | 371 | |
| Executors may, at their discretion, pay over legacies at any time within the year after testator's decease | 371 | |
| An investment by executors, in the name of a legatee, of a sum less than the whole amount of the legacy, held a payment protanto, entitling the legatee to the interest accruing thereon | 371 | |
| WITNESS. | ||
| See, also, “Bankruptcy”; “Costs.” | ||
| A witness who is interested equally on both sides is competent to testify | 280 | |
| A surety in an administration bond is a competent witness for the administrator | 1023 | |
| A surety in a replevin bond is not a competent witness for plaintiff in replevin, although he has an indemnifying bond | 1027 | |
| A slave cannot be a witness if a free white man be a party | 952 | |
| Complainant held not a competent witness in a suit to restrain the removal of his slave from the district | 961 | |
| A witness, who voluntarily became interested after acquiring knowledge of the subject-matter in dispute, may be compelled to testify | 723 | |
| The vice president, who was also secretary and treasurer, of a foreign railroad corporation, having an office in New York, held could not be required to produce books of the company, which had been in his control, but several years before had been sent to the home office, in another state, and were there in charge of a co-ordinate officer, over whom he had no control | 579 | |
| Where all the witnesses are equally trustworthy the court is governed more by their means of knowledge than the number | 773 | |
| Where fees of travel and one day's attendance, demanded by a witness at the time of the service of the subpoena in a civil cause in the federal court, are not paid, the witness is not liable for contempt for failure to attend | 932 | |
| A witness, subpœnaed at the place of trial on the day on which he is required by the subpœna to attend in court, is not entitled to travel fees | 413 | |
| WRITS AND NOTICE OF SUITS. | ||
| Service by a deputy marshal of a summons, previously in his hands, on the day after a new marshal files his bond and takes the oath, is valid | 60 | |
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