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INDEX.
[The references are to pages. The asterisk (*) indicates that the case has been reversed.]
28FED.CAS.
28FED.CAS.—87
28FED.CAS.—88
| Page | |
| ABATEMENT AND REVIVAL. | |
| It is not a good plea in abatement to a suit in the federal circuit court for the recovery of land that another action is pending in the state court between the same parties for the recovery of the same land. It must appear that the two actions are founded on the same cause of action. | 1319 |
| ACCOUNT. | |
| A person with whom money of one person is deposited to the credit of another by the agent of the former cannot apply the same in satisfaction of a claim against the latter, where he has knowledge of the circumstances. | 975 |
| ADMIRALTY. | |
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Bottomry and Respondentia”; “Charter Parties”; “Collision”; “Maritime Liens”; “Pleading in Admiralty”; “Practice in Admiralty”; “Salvage”; “Seamen”; “Shipping”; “Towage”; “Wharves.” | |
| The admiralty courts will enforce municipal regulations which affect the equipment, position, or management of vessels within particular jurisdictions. | 977 |
| A contract by the owners of vessels for their future employment in a certain trade is not enforceable in admiralty. | 980 |
| A suit in admiralty may be maintained for the nonperformance of a contract for the transportation of merchandise from the city of Albany to the city of New York, on the Hudson river, in a canal boat designed for the navigation of the Erie Canal, and without motive power of its own. | 1075 |
| AFFIDAVITS. | |
| See “Perjury.” | |
| AFFREIGHTMENT. | |
| See, also, “Admiralty”; “Bills of Lading”; “Carriers”; “Charter Parties”; “Shipping.” | |
| Goods shipped under the common bill of lading cannot be carried on deck unless there is a positive agreement to that effect or circumstances from which it may be inferred. | 1162 |
| Goods carried on deck are at the risk of the vessel, even as against dangers of the seas, unless they would have been equally fatal if the goods had been under deck. | 1356 |
| Where goods shipped under the common bill of lading at an under-deck freight are carried on deck, the shipowner is entitled only to deck freight. | 1162 |
| Where the consignee objects to the wharf selected by the master for the discharge, and the cargo is lost by its breaking and sinking while the vessel is discharging, the vessel is liable therefore 1280, | 1283 |
| Casks of sherry wine, shipped under bills of lading containing the words, “Shipped in good order and well conditioned,” to be “delivered in like good order and well conditioned, dangers of the sea excepted,” “weight and contents unknown, and not accountable for average leakage and breakage,” were delivered, some entirely empty, and others partly empty and leaking. Held, that the burden was upon the consignee to show that the loss resulted from negligence of the vessel. | 1114 |
| To lighten a vessel aground, the deck load of brandy was jettisoned by knocking in the heads of the casks, it being impossible to throw them overboard whole. Held, a loss by a peril of the sea. | 1081 |
| A grounding cannot be imputed to the fault or misconduct of the master where, arriving off Mobile, towards evening, on indications of bad weather, and inability to procure a pilot, he attempts to follow a pilot boat up the bay. | 1081 |
| AGENT. | |
| See “Principal and Agent.” | |
| ALIENS. | |
| An attempted naturalization under the Pennsylvania act of 1789, after the adoption of the new state constitution, held ineffectual. | 377 |
| APPEAL AND ERROR. | |
| A writ of error is the proper process to correct errors of the district court in common-law actions. No appeal lies from the district to the circuit court except in civil causes of admiralty and maritime jurisdiction. | 745 |
| Where property seized upon land is libeled as forfeited to the United States for violation of the revenue laws, the case can only be reviewed by writ of error. | 66 |
| On an appeal from a decree on a libel for the possession of the vessel it is in the custody of the circuit court after the return is filed. | 201 |
| Amendments may be made in the appellate court only when the suits are on the admiralty side. | 121 |
| Where the instructions are not applicable to the facts proved in the case, and have no influence on the verdict, they are not ground of a reversal, however erroneous they may be. | 792 |
| Error in excluding depositions cannot be considered when the bill of exceptions does not identify them, but they are inserted in the copy of the record by the clerk, more than two months after the bill is signed. | 133 1372 |
| Judgment will not be reversed because the court refuses to give a charge abstractly correct, but which the bill of exceptions does not show was pertinent to the case. | 133 |
| Where a cause has once open tried by a jury in the district court, there cannot be a new trial by a jury at the circuit court. | 745 |
| ARMY AND NAVY. | |
| See, also, “Prize”; “War.” | |
| A minor of the age of 18 can enlist in the navy without the consent of his parents or guardian. | 499 |
| The enlistment of minors under the age of 18 is illegal in the absence of the consent of their parents or guardians, and the oath of enlistment is not conclusive upon the courts, but is a protection to the enlisting officer. | 796, 798 |
| The oath of enlistment taken by a recruit is conclusive as to his age on an application by his parent or guardian for his discharge as being a minor, though the enlistment was without the parent's or guardian's consent. | 22 |
| A prisoner of war, paroled by the enemy, although a minor illegally enlisted, is not entitled to his discharge until after his exchange. | 796 |
| There can be no criminal desertion where the enlistment was illegal. | 798 |
| Where a soldier who has served out his term is refused his discharge, he is nevertheless, while remaining in the barracks, subject to the rules of the establishment. | 204 |
| An indictment will not lie under Act March 3, 1863, for obstructing, hindering, and delaying an enrolling officer. | 607 |
| A seaman who has passed the examination at the naval rendezvous merely, and has not been examined and passed on the receiving ship, is not enlisted, within Act 1855, c. 136, § 11, punishing the enticing to desert of an enlisted seaman. | 101 |
| Under Act May 28, 1836, c. 82, the quartermaster may adjust and settle claims against the United States arising during the Florida war for proper supplies taken by impressments. | 509 |
| Where a brevet commission is conferred, to take rank from a prior date, the pay and emoluments of the rank conferred follow as an incident from such date whenever the officer has rendered services according to such rank. | 379 |
| Time of service and the amount disbursed furnish the data for computing the amount of compensation for any fractional part of a year. | 525 |
| A quartermaster who furnishes other articles than such as are allowed by law and usage cannot charge the United States with them. | 509 |
| The maximum compensation of navy agents is fixed at $3,000 per annum (Act March 3, 1855), and the excess of commissions in one year cannot aid the deficiency of another. | 525 |
| A navy agent is not entitled to extra compensation for services rendered out of his district, which appertain to the duties of another officer. | 586 |
| A navy agent appointed acting purser for the naval school, held entitled to the salary allowed by law to pursers. | 586 |
| A navy agent is entitled to office rent and clerk hire, and to engage them by the quarter, and, if dismissed from office, he will be allowed for the whole quarter. | 586 |
| The words “pay of the army,” in charging moneys advanced to a militia paymaster, held evidence merely of the appropriation out of which the advances were made, and not as to their disbursement. | 608 |
| Certified copy of regimental paymaster's account and of his bond held competent evidence in action against sureties. | 365 |
| The sureties on the official bond of a regimental paymaster are not liable for his failure to account for funds placed in his hands after six months' neglect to account for funds previously placed in his hands. | 365 |
| ARREST. | |
| See, also, “Bail”; “Criminal Law”; “Execution“; “Extradition.” | |
| Fraud in an importer in inducing the acceptance of less than the whole sum due for duties does not make the balance of the debt fraudulently contracted, so as to subject the importer to arrest in a civil suit. | 754 |
| Where the cause of action and arrest are identical, a verified complaint is a sufficient affidavit upon which to allow an order of arrest. | 391 |
| Where the warrant is regular on its face, and shows a case within the jurisdiction of the magistrate, resistance thereto is unlawful, though the offense was not within the local jurisdiction of the magistrate. | 89 |
| A signature in lead pencil to a warrant by a justice of the peace is not sufficient. | 89 |
| ARSON. | |
| Arson not being a capital offense in the District of Columbia, held, that defendant was not entitled to peremptory challenges. | 562 |
| ASSAULT AND BATTERY. | |
| In an action of assault and battery for beating plaintiffs servant, plaintiff must give evidence of loss of service. | 1301 |
| An indictment will not lie under the penitentiary act for an assault with intent to kill. There must be a battery also. | 230 |
| An indictment for assault and battery with intent to kill need not show that the crime would have been murder if death had ensued. | 47 |
| ASSIGNMENTS. | |
| See, “Judgment.” | |
| ASSIGNMENTS FOR BENEFIT OF CREDITORS. | |
| See, “Bankruptcy.” | |
| ATTACHMENT. | |
| See, also, “Bankruptcy”; “Practice in Admiralty.” | |
| Motions and affidavits for attachments in civil suits are proceedings on the civil side of the court until the attachments issue, and are to be entitled with the names of the parties. | 504 |
| When a marshal has several writs of attachment put into his hands, he must return all the property as attached on each of them. | 1219 |
| AUCTIONS AND AUCTIONEERS. | |
| Where the last bid before the purchaser's on a sale at auction is a real bid, and the judgment of the real bidders and the purser has not been blinded by previous sham bids, the fact that the seller employed sham bidders will not render the sale invalid. | *1124 1373 |
| AVERAGE. | |
| The shares of fishermen in mackerel voyages who sail under the agreements usual in such voyages, are subject to contribution for general average. | 859 |
| The charges for entering a harbor for repairs, the surveyor's bill, and port charges are items of general average, and the subject of general contribution. | 1306 |
| In cases of general average, the master and owners may retain all goods of the shippers until their share of the contribution towards the average is either paid or secured; and there is no exception in the case of property of the government. | 601 |
| BAIL. | |
| Bail required in trespass for cutting up a scow. | 1305 |
| Special bail will be required in an action of covenant for rent, upon a proper affidavit. | 1324 |
| A recognizance to appear to answer to a certain indictment, and not to depart without the leave of the court, is not discharged by the quashing of the indictment. | 570 |
| The death of the principal after default and forfeiture of his recognizance does not exonerate his sureties. | 357 |
| The subsequent arrest, conviction, and imprisonment of the principal on process from a state court, out of the jurisdiction of the district, is no defense to sureties on a recognizance given to the United States. | 357 |
| BANKRUPTCY. | |
| See, also, “Insolvency.” | |
| Operation and effect of bankruptcy laws, and of proceedings thereunder. | |
| A person engaged in a business requiring the purchase of articles to be sold again either in the same or an improved shape, is “using the trade of merchandise,” within Act 1841. | 1350 |
| Upon the bankruptcy of a corporation the court is vested with all the powers belonging to the officers and stockholders as to the making of assessments or calls. | 839 |
| Where a bankrupt is arrested on an order issuing out of a state court, the bankruptcy court, on habeas corpus, can only inquire whether or not the papers on their face are sufficient to show that the debt was one created by fraud or in a fiduciary capacity. | 873 |
| If a final judgment is not recovered against the bankrupt before the filing of the petition in bankruptcy, the proceedings in the action will be stayed, if the claim on which the action is based be provable, whether dischargeable or not. | 953 |
| Jurisdiction of courts. | |
| The bankrupt court has no jurisdiction, under its summary power to enforce compositions, to take cognizance of and determine questions of title between the debtor and persons not parties to the proceedings. | 1343 |
| Commencement of proceedings—Involuntary bankruptcy. | |
| A petition in involuntary bankruptcy will not be dismissed on the ground that a suit at law has been commenced and prosecuted to judgment by the petitioner against the debtor since the filing of the petition. | 1031 |
| The omission in a petition by one partner against his co-partner to state the residence of the latter may be supplied by amendment. | 966 |
| A creditor who has joined with other creditors in a petition cannot withdraw on the ground of misrepresentations made by the debtors. | 1238 |
| Acts of bankruptcy. | |
| It is an act of bankruptcy for a trader willingly to procure himself to be arrested, or his goods to be attached, although the attachment was not fraudulent. | 1350 |
| A general assignment to secure a preference to particular creditors is an act of bankruptcy. | 1350 |
| The sale of a stock of goods will not be considered an act of bankruptcy where the only object of the seller was to change his business, and the purchaser acted in good faith. | 930 |
| Property of bankrupt—What constitutes. | |
| A claim against Spain for spoliation under the treaty of February 22, 1819, held did not pass under a prior assignment in bankruptcy. | *1101 |
| If a mortgage given by the debtor is void under the state law, the property passes to the debtor's assignee in bankruptcy. | 1338 |
| The property of a bankrupt in his actual possession at the time of filing the petition passes to his assignee, and a person who has sold property to the bankrupt cannot recover the same by process in replevin in a state court on the ground that, because of fraud, the title to it has not passed. | 1239, 1241 |
| —Custody and control. | |
| Where the debtor's estate has been conveyed to a receiver appointed on a creditors' bill before the petition in bankruptcy was filed, the assignee in bankruptcy must apply to a court of chancery for delivery over of the property. | 1312 |
| —Exemptions. | |
| The provisions of a state constitution giving a homestead and other exemptions apply to contracts existing before the adoption of the constitution, and do not violate the obligation of contracts. | 1248 |
| Where homesteads have been duly allotted under the state law, in the absence of fraud, such allotment will be recognized, and allowed to the bankrupt. | 1248 |
| —Wife's claim. | |
| The fact that a wife allows her husband to have and use her money in his own business indefinitely does not affect a claim by her as against other creditors after he becomes bankrupt. | 1025 |
| —Liens. | |
| Where, prior to the petition for a decree in bankruptcy, a creditors' bill was filed, and a receiver appointed, to whom the debtor conveyed all his property, no lien or security on the bankrupt's estate is created, but the same vests in the assignee in bankruptcy. | 1312 |
| A creditor who after the filing of the petion in bankruptcy, obtains an attachment and a judgment in a pending suit, has only the rights of a creditor at large, and cannot intervene and contest the right to an adjudication. | 1238 |
| —Sale. | |
| The district court has power to order the sale of the whole or any part of the property of the bankrupt by his consent, even before the declaration of bankruptcy. | 1188 |
| The creditors must have due notice of any application for a sale, so that they may appear and show cause against such sale, or for a postponement thereof. | 1188 |
| Proof of debts—What is provable. | |
| A claim to have a judgment in favor of the claimant against the bankrupt set aside on account of fraud, whereby it was rendered for a smaller sum than was actually due, and to recover what is still due under the contract on which the judgment was rendered, is a debt provable under the bankrupt law. | 953 1374 |
| A claim of the United States for the value of goods forfeited for violation of the customs laws is provable, though the United States has recovered a judgment for such value. | 1172 |
| A creditor may prove a debt, though he has recovered a judgment for the same before a justice of the peace prior to the adjudication. | 1173 |
| —Procedure. | |
| In proving a claim founded upon a note in which only the initials of the Christian names is given the full names must appear. | 868 |
| To prove a claim by the United States for the value of goods forfeited for violation of the customs laws, books and papers of the bankrupts, seized under a warrant issued under Act March 2, 1867, § 2, are admissible. | 1172 |
| Payment of debts: Priority: Dividends. | |
| In the case of bankrupts doing business in different places under different firm names, the two firms are to be treated as one, and no notice will be taken of the indebtedness of the one to the other. | 1170 |
| Where the bankrupts carried on a brokerage business, keeping the accounts and funds therein separate from their other business, the owners of bonds sold will be entitled to payment in full out of the brokerage account as against creditors in the other business. | 1257 |
| Examination of bankrupt, etc. | |
| An order reciting that it was made upon the application of F. & Co., parties claiming to be interested in the estate, “and who have duly proved their debt herein,” is in proper form. | 1170 |
| Where an examination is abruptly terminated by the failure of the assignee's counsel to appear, and an order for a new examination is taken, the bankrupt cannot refuse to testify. | 1090 |
| Where an order for the examination of the bankrupt's wife is served upon him, and she fails to attend, he must prove to the satisfaction of the court that he was unable to procure her attendance. | 1088 |
| Where creditors conducting an examination of a debtor in apparently earnest opposition suddenly cease without apparent cause, the register may allow another creditor to continue the examination. | 966 |
| The register cannot fix a time at which an examination of the bankrupt shall terminate or limit the inquiries so long as they are relevant. | 1342 |
| It is not a sufficient excuse for not answering a question put to the bankrupt that he has already replied to it at a former examination, held at the instance of some other creditor or the assignee. | 1244 |
| A bankrupt having testified that he is not the owner of certain property, questions relating to the identity of the owner, duration, extent, and character of the ownership are irrelevant. | 1088 |
| The wife of a bankrupt is not bound to appear and be examined unless she is paid the usual and proper witness fees. | 1090 |
| The penalty for disobedience of the wife to attend and be examined is visited upon the bankrupt by refusing him a discharge. | 1090 |
| Discharge—Proceedings to obtain. | |
| It rests in the sound discretion of the court to discharge a bankrupt, even where his application was made more than a year from the adjudication of bankruptcy. | 1278 |
| The word “assets,” as used in Act July 14, 1870, § 33, requiring the same to be equal to 50 per cent. of the debts proved, means money received by the assignee. | 1072 |
| Though the bankrupt's assets exceed the amount of the proved claims, if, after payment of costs and expenses, the amount remaining does not equal 50 per cent. of such claims he is not entitled to a discharge, under Act July 27, 1868, without the assent of a majority in number and value of his creditors. | 1217 |
| —Proceedings in opposition. | |
| The specification of objections must be sufficiently definite to enable the court to see that there exists a fair question of fact necessary to the determination upon evidence outside of the paper. | 1326 |
| —Scope and effect. | |
| A discharge under the act of 1841 bars a debt due to the government on account of customs duties. | 804 |
| A discharge will release the liability of the bankrupt as surety on the bond of a deceased collector of internal revenue. | 158 |
| Prohibited or fraudulent transfers. | |
| Several creditors may, with the aid of their debtor, conspire to get an advantage over other creditors by a voluntary preference, if the means used are not unlawful, and the preferences are made more than two months before the filing of a petition in bankruptcy. | 1025 |
| A judgment confessed within four months of the filing of the petition by an insolvent debtor to a creditor having a reason to believe him insolvent, though in consideration of a pre-existing debt, is in fraud of the act. | 1246 |
| A judgment secured by default by a creditor who knew that the debtor was insolvent, and unable to pay his debts, is an illegal preference, and a levy upon the stock in trade will not give a valid lien as against his assignee. | 967 |
| A judgment taken by confession as collateral for the aggregate of several other valid judgments does not affect their validity. | 1246 |
| The intent on the part of an insolvent debtor to give and of a creditor to secure an illegal preference may be inferred from circumstances. | 967 |
| The knowledge of an attorney, who takes a judgment note in his ownor me and enters judgment thereon, of the insolvency of the debtor, is imputed to his principal. | 1246 |
| Where a judgment note is taken within four months of proceedings in bankruptcy for a loan made at the time by one who had no knowledge of the debtor's insolvency, though he knew him to be so at the time of entering judgment, the judgment is valid. | 1246 |
| A mortgage given by a firm is not fraudulent as to creditors because it, in terms, adopts a debt incurred by one of the partners in behalf of the firm, and includes that in the mortgage. | 1338 |
| A sale by a debtor will not be avoided because the purchaser was aware of the intention of the seller to prefer certain of his creditors by the use of the proceeds of the sale. | 1025 |
| Advances made in good faith to a debtor carrying on business upon security taken at the time do not violate either the terms or the policy of the bankrupt act. | 1320 |
| The assignee can recover of a creditor the value of property transferred by the bankrupt to him within four months preceding the adjudication of bankruptcy only where the grantee had reason to believe that it was intended as a preference, or to defeat or delay the operation of the act. | 1320 1375 |
| Where a firm is insolvent, and the silent partner conveys all his interest in the joint property to the active partner, who, on the same day mortgages the whole stock in trade to secure pre-existing debts of separate creditors of each, the transaction is fraudulent. | 1339 |
| Suits and proceedings in relation to the estate. | |
| The assignee may maintain a bill in equity to set aside a conveyance by the bankrupt, and for an account and discovery. | 1169 |
| The bankrupt is a proper party to a bill to set aside a sale by him as fraudulent or illegal under the bankrupt act. | 1169 |
| The fact of nonjoinder of a person jointly liable with defendant is available only by plea in abatement. | 984 |
| The fact that a call for unpaid subscriptions to stock was for more than was necessary to pay the debts of the company, cannot be tried in an action by the assignee in bankruptcy against an individual stockholder. | 839 |
| In an action by trustees under Act 1867, section 39, to recover money paid by the bankrupt as a preference, commenced prior to December 1, 1873, the amendment of June 22, 1874, requiring proof that the creditor knew that the payment was made to him in fraud of the act, is not applicable. | 984 |
| Arrangement with creditors: Composition. | |
| Secured creditors need not be reckoned in computing the portion who must join in a composition. | 946 |
| Creditors whose debts do not exceed $50 are to be disregarded in computing the majority who must pass a resolution of composition, as well as in ascertaining the number of those who are required to sign the confirmatory statement. | 1353 |
| Where a composition is made before adjudication, the mere fact that the debtor retains possession of his assets is no ground for refusing to ratify it. | 946 |
| The omission of the court in a voluntary case to adjudicate the debtor a bankrupt does not defeat a composition made before such adjudication. | 946 |
| A provision that the debtor may retain his assets is surplusage, and will not defeat a composition. | 946 |
| A resolution appointing a trustee, under the terms of which, and by prior agreements, the interests of the nonsigning creditor were to be sacrificed for the benefit of the signers and the bankrupt, will not be approved. | 1171 |
| Criminal prosecutions. | |
| An indictment charging a conspiracy to have a bankrupt account for his property by falsely pretending that he had given a valid mortgage thereon to secure a consideration a part of which he should falsely pretend to have been stolen, sets out an offense under Rev. St. § 5440, as a conspiracy to attempt to account for property by fictitious losses. | 3 |
| BANKS AND BANKING. | |
| See, also, “Bills, Notes, and Checks.” | |
| The assignee of bonds deposited with the treasurer of the United States as security for the redemption of national bank notes cannot question the validity of the appointment of a receiver for the bank in respect to other property than the bonds. | 941 |
| The making of false entries by a clerk in a national bank by direction of the president constitutes the latter a principal in the offense of making false entries. | 954 |
| An intent to defraud a bank will he inferred from the fact of embezzlement. | 954 |
| BILLS, NOTES, AND CHECKS. | |
| Indorsement and transfer. | |
| A United States “seven-thirty” note, payable to the order of—and not having the name of any person filled in the blank space, is negotiable by delivery. | 368 |
| No indorsements on the note, while such blank is left unfilled, will restrict its negotiability. | 368 |
| Such a note Is not money, and a person who purchases it after its maturity, and after the time for its conversion into bonds has passed, takes nothing but the actual right and title of his vendor. | 368 |
| A person to whom an accommodation indorser transfers the note in payment of a pre-existing debt due from the makers, though he has knowledge of the circumstances, may recover thereon against the indorser. | 1096 |
| An indorsement of a note to give it credit is a sufficient consideration to support the action against the indorser. | 1306 |
| Demand: Notice: Protest. | |
| A drawer having no funds in the hands of the acceptor, and no expectation of having the bill paid, is not entitled to strict notice of nonpayment. | 874 |
| Where an indorser has a public office in town, which is kept open every day, a notice deposited in the mail is not sufficient, though he resides five miles out of town, and the post office is his nearest post office. | 1307 |
| Release or discharge of indorser. | |
| An attorney who receives a note for collection cannot, without special instructions, make a binding agreement to release the indorser from his liability. | 1096 |
| The surety is discharged where the holder of a note, for a valuable consideration, gives time to the maker. | 1099 |
| The indulgence which will release an indorser of negotiable paper must not only be given upon a good consideration, but must be for some limited and definite time within which the creditor's right of action is suspended. | 1096 |
| The payment of a part of the debt and accepting claims to be applied when collected in further payment, under a verbal agreement not to sue, constitute no legal consideration for a promise of forbearance. | 1096 |
| Actions. | |
| Where the maker is insolvent, the holder may primarily sue the indorser of a promissory note, although the maker at such time has personal property in his hands, more than enough to pay the debt. | 1306 |
| A partial failure of consideration is no defense, to an action by the payee against the maker of a promissory note. | 1099 |
| The payees suing on a note indorsed to another have the burden of showing that it has been retransferred, or was indorsed for collection, or that they have repaid the money. | 1136 |
| In an action on a note made by three persons, parol evidence is not admissible to show that a note set out in the record of confiscation proceedings as made by two of such persons was the same note. | 1254 |
| A blank indorsement may be filled up at the bar after the jury is sworn, and the indorsement so filled up is prima facie evidence of a good consideration. | 1306 |
| Judgment will not be arrested because plaintiff's name, being indorsed upon the bill in blank, was not struck out at the trial. | 1305 1376 |
| BILLS OF LADING. | |
| See, also, “Admiralty”; “Affreightment”; “Carriers”; “Shipping.” | |
| A bill of lading, signed only by the brokers who procured the cargo, held of no effect as against a prior regular bill of lading signed by the master and owner of the boat. | 982 |
| BONDS. | |
| See, also, “Officers”; “Principal and Surety”; “Railroad Companies.” | |
| The cancellation of a bond does not per se destroy it when it is canceled through fraud or evident mistake, but it may be declared upon as a good and subsisting obligation. | 678 |
| In a declaration on a bond several breaches may be assigned in the same count. | 224 |
| Where an interlocutory judgment is entered on a bond with a collateral condition, the jury, if either party so require, must ascertain the damages, if they be uncertain. | 588 |
| BOTTOMRY AND RESPONDENTIA. | |
| The payment of a hypothecation is not a valid consideration for a new hypothecation unless it appear that the former one was valid. | 1353 |
| The obligee in a bottomry bond has the burden of proving the necessity for the advances, and that they were made to enable the master to prosecute his voyage. | 1353 |
| Where advances were made, and a bond given, after the master had resigned his command, and another master, appointed by the charterers, had succeeded to it, the bond is not valid. | 1353 |
| BOUNDARIES. | |
| The line of a fence erected by agreement of parties in settlement of a boundary dispute, where possession continued according thereto for 20 years, will conclude persons claiming under the original owners. | 1346 |
| BRIBERY. | |
| The offense of attempting to bribe an officer is completed at the time when and at the place where the letter containing the corrupt offer is written and delivered at a post office in the district, though addressed to the officer, residing in another state. | 774 |
| Quære, whether a person is subject to indictment in the federal courts for attempting to bribe a federal officer, in the absence of an act of congress defining such offense. | 774 |
| CARRIERS. | |
| See, also, “Affreightment”; “Average”; “Bills of Lading”; “Charter Parties”; “Shipping.” | |
| A common carrier may by special contract limit his common-law liability in case of fire. | 1078 |
| The shipper is bound by a limitation of liability in case of fire contained in a bill of lading delivered to the agent or person bringing the goods or placed in a box from which the shippers were accustomed to obtain bills of lading for shipments from time to time made. | 1078 |
| The consignee is liable for full freight where he demands and receives the property before it reaches its ultimate destination. | 1218 |
| A carrier from whom negotiable notes have been stolen, who has paid their value to their owner, may recover the same from a person to whom the thief transferred them after maturity. | 368 |
| CHARTER PARTIES. | |
| See, also, “Admiralty”; “Affreightment”; “Average”; “Bills of Lading”; “Shipping.” | |
| The general owner is owner for the voyage if the vessel is navigated at his expense, and by his master and crew, and he retains the possession and management during the voyage. | 1260 |
| A ship, to be seaworthy for the voyage, must be manned by a competent master and crew. | 1193 |
| On a libel against charterers for refusing to furnish a cargo on the pretense that the ship was unseaworthy, the owners have the burden of showing seaworthiness. | 1193 |
| Where the question of seaworthiness is in issue, evidence of the performance of voyages immediately before and after that contemplated is inadmissible, except so far as they may offer just inferences as to her actual condition at the time. | 1193 |
| A clause in the charter that the parties bind the ship and goods, respectively, for the performance of the covenants, payments, and agreements thereof, creates a lien on the goods for such performance, and may be enforced by a detention of the goods for the freight, and by a suit in admiralty. | 1260 |
| Admiralty has jurisdiction in cases of charter parties for foreign voyages, and may enforce by proceedings in rem the maritime lien for freight thereunder. | 1260 |
| CHATTEL MORTGAGES. | |
| See, also, “Bankruptcy”; “Mortgages”; “Pledge.” | |
| A mortgage of “the whole of my stock of books and stationery now remaining in my possession, and also such additions thereto as I may hereafter make from time to time to the same,” is not void for uncertainty, but does not convey future additions. | 1336 |
| A mortgage of manufacturing property, given under an agreement by which the mortgagors were to retain possession, and continue the business, paying first the expenses and then the mortgage debt out of the proceeds, is void as to creditors. | 1338 |
| CLAIMS. | |
| Where congress has acted upon a claim for damages to property from its occupancy by the government troops, no further allowance can be made | 674, 674 |
| It is a felony to transmit to the pension office forged papers in support of a claim for bounty land. (Act March 3, 1823, § 1.). | 597 |
| An indictment for transmitting such forged papers is sufficient if it show that the purpose was to obtain the allowance of the claim, though they were not sufficient for that purpose. | 597 |
| CLERK OF COURT. | |
| For searching for petitions in bankruptcy the clerk was allowed 15 cents for each name searched against the compensation not being provided for in Rev. St. § 828. | 1151 1377 |
| COLLISION. | |
| See, also, “Admiralty”; “Pleading in Admiralty”; “Practice in Admiralty”; “Towage.” | |
| Nature of liability—Contributive fault. | |
| The fact that the engineer of the injured boat was not licensed will not prevent a recovery where the evidence shows that the want of a licensed engineer did not contribute to the collision. | 958 |
| Where a collision ensues in consequence of the delay to take precautionary measures, the vessel which has the burden of keeping out of the way is liable. | 1344 |
| Rules of navigation. | |
| Act N. Y. April 12, 1848, requiring steamboats passing up and down the East river to be navigated in the center of the river, applies to a tug whose business is to cruise along the docks, and move vessels from one pier to another, or into or out of the harbor. | 977 |
| Between sail vessels. | |
| Between brig and bark, where the former, sailing closehauled, was held in fault for changing her course. | 1198 |
| Between steam and sail. | |
| A tug and a sail vessel in tow at the end of a hawser are to be treated as a single vessel under steam, and must keep out of the way of a sail vessel. | 846 |
| A sail vessel is not excused for changing her course, even with a view of preventing a collision, unless it appear that a collision could not otherwise be prevented, or that the danger of collision was imminent and pending. | 1360 |
| The steamer is bound to anticipate the necessity of the sail vessel to come about on another tack; and, when the sail vessel is put on her new course, she is bound to keep it. | 1344 |
| Where the weather is good, and there is no want of sea room, and no obstructions to navigation, the sail vessel must hold her course. | 1344 |
| The assumption that a sail vessel will beat out her tack must yield to peculiar exigencies, such as arise in a crowded river. | 1174 |
| Where a schooner, coming up the Jersey coast, on seeing the light of a steamer, heaves her lead, and comes up into the wind, and, after the steamer changes her course to avoid the schooner, fills away again, directly across the steamer's course, she will be held in fault for the ensuing collision. | 1232 |
| In the case of a bark at anchor in the Swash Channel, run into by an Atlantic liner, at night, held, that both vessels were liable; the former for not having a light, and the latter for failure of her officers to use the night glasses to examine the channel ahead. | 1190 |
| Vessels moored, etc. | |
| A vessel which moors alongside of another at a wharf or elsewhere becomes responsible to the other for all injuries resulting from her proximity which human skill or precaution could have guarded against. | 1085 |
| A vessel which moors alongside of another at a wharf is bound to know the depth of water, and is responsible for the directions of the consignees who have such knowledge, and is liable for injury to the other vessel against which she careens on grounding during an ebb tide. | 1085 |
| Where a collision is caused partly by the gross negligence of a sloop in the management of her helm while weighing anchor and partly by the failure of a tug to observe the regulations requiring steamers to keep to the middle of the stream, damages will be divided. | 977 |
| River and harbor navigation. | |
| A steamer will be held liable for collision with a sail vessel in a crowded river where she plunges into the crowd of vessels, taking her chance of finding an opening through them. | 1174 |
| Lookouts: Officers, etc. | |
| A steam tug, whose master also acts in the capacity of wheelsman, is not sufficiently manned. | 1176 |
| The absence of a lookout, where it did not contribute to the collision, is not a fault. | 1176 |
| Particular instances of collision. | |
| Between brigantine in tow and a brig under sail near the Narrows, at night, where the tug was held in fault for not carrying the two vertical lights. | 846 |
| Procedure. | |
| Admiralty has jurisdiction of a collision between a canal boat and a tug engaged exclusively in harbor service, and occurring upon navigable water, wholly within the body of a county. | 1258 |
| Rule of damages. | |
| Charges for wharfage while repairing, for the time of the owner and crew in raising and clearing out the vessel, for the loss of profits while sunk and while being repaired, are properly added to the cost of repairs. | 1085 |
| Where the cost of repairs is claimed as damages, it is not competent to show what the vessel cost her owner four years before, as evidence tending to prove that at the time of the collision she was not worth as much as such sum. | 1174 |
| Review. | |
| The rejection of evidence on the subject of damages by the commissioner, when not raised in the district court, is not available on appeal. | 1174 |
| Cross libels for a collision were filed in admiralty; one in personam, the other in rem. Libelant obtained a decree in one suit, and the other was dismissed. The losing party appealed in both, and the damages were apportioned. Held, that the aggregate costs in both courts should he divided between the parties. | 961 |
| COMMISSIONERS. | |
| The federal circuit court has no power to issue a writ of certiorari to a United States commissioner to review proceedings before him under the fugitive slave act of September 18, 1850. | 1060 |
| COMPOSITIONS. | |
| See “Bankruptcy.” | |
| CONFLICT OF LAWS. | |
| Where a debt is contracted in a foreign country, and the case depends upon the lex loci contractus, it should be especially averred in the bill. | 1293 |
| CONGRESS. | |
| Congress cannot create damages to be recovered by the United States by suit, or cause acts to be wrongs to the United States, which are in their nature wrongs to another. | 333 |
| A congressman is not privileged from arrest on a warrant charging that he is about to commit a breach of the peace by fighting a duel. | 742 1378 |
| CONSPIRACY. | |
| The word “conspiracy,” as used in Act March 2, 1867, has a more comprehensive meaning than that given it at common law, and it is immaterial whether the fraud contemplated has been declared a crime by statute or not. | 531 |
| To sustain a conviction for a conspiracy to procure persons to go into another county to vote illegally, it need not be shown that illegal votes were actually cast or offered, or that any person went into the other county to vote illegally. | 780 |
| The crime of conspiracy to defraud the United States (Rev. St. § 5440) is materially different from the offense of conspiracy as it existed at common law, and every ingredient of the offense must be clearly alleged. | 394 |
| An indictment charging the conspiracy to consist in “certifying that certain false and fraudulent accounts and vouchers for material furnished for use in the construction of said customhouse and post office, and for labor performed on said building, were true and correct,” held bad for uncertainty. | 394 |
| CONSTITUTIONAL LAW. | |
| The act of 1820, authorizing a treasury agent to issue a distress warrant against a defaulting officer and his sureties, is unconstitutional as vesting the executive with judicial power. | 24 |
| The constitutional power of congress to regulate commercial intercourse, qualified by the limitations and restrictions expressed in the constitution, and by the treaty-making power of the president and senate, is sovereign, and may be used, not only for the advancement of commerce, but for the promotion of other objects of national concern. | 614 |
| The business of distillers and rectifiers, being wholly within control of the government, it may require the production of, and, if necessary, seize, any or all the books and papers kept by them in their business. | 149 |
| An act of a state legislature discriminating specially against taxes levied to pay judgments upon railroad bonds, held unconstitutional, as impairing the obligations of contracts. | 213 |
| An act repealing a statute which confirmed to certain claimants their title to land upon complying with certain conditions precedent, is not an ex post facto law, or a law impairing the obligation of contracts, where the conditions have not been complied with at the time of the repeal. | 1012 |
| If the legislative protection against a witness' evidence being used against himself is as broad as the constitutional provision against compelling a person to criminate himself, he can be compelled to answer. | 149 |
| The territory of Indiana, by coming into the Union, consents to such constitutional provisions as are repugnant to the compact in the ordinance of 1787. | 1115 |
| CONSULS. | |
| The consul of a foreign nation can be sued alone in the federal district court on a contract executed by him jointly with another person. | 872 |
| CONTEMPT. | |
| The taking of a vessel by force from the possession of a party to whom she had been delivered on the giving of a bond for value in admiralty is not a contempt of court. | 201 |
| Trustees restrained from doing an act except in strict accordance with the statute prescribing their duties requiring the exercise of a discretion will not be punished for a contempt where they answer under oath that they have acted good faith, and did not suppose that they were violating the statute. | 1286 |
| Parties guilty of a technical contempt in violating an injunction, who declare on oath that they were not aware of the violation, and submit to the direction of the court, will be allowed to purge the contempt by undoing or reversing their acts, when it is practical to do so. | 1298 |
| The federal circuit court, as a court of equity, may award attachments for contempt in vacation. | 1298 |
| CONTINUANCE. | |
| A continuance will be allowed to obtain the testimony of a material witness, then abroad, but resident here, who has declared that he will return within two weeks. | 771 |
| The absence of a witness who could testify that he heard another man confess that he had stolen the property in question, is no ground for a continuance of a prosecution for larceny. | 200 |
| CONTRACTS. | |
| See, also, “Conflict of Laws”; “Vendor and Purchaser.” | |
| A contract for obtaining legislation, or to prevent legislative investigation into the affairs of a railway corporation, is void, and will not support a claim to relief in equity. | 853 |
| Where defendants, under contract to sell and deliver bonds to plaintiffs, subsequently state that they must be at plaintiffs' risk as to genuineness, and give opportunity for examination, and plaintiffs nay for the bonds, and telegraph defendants that they are all right, plaintiffs are estopped to insist upon their rights under the original contract. | 857 |
| To ascertain the meaning of a contract, the circumstances of the parties at the time they made it may be considered. | 986 |
| The law of the place where a contract is made will govern as to its validity, nature, and construction, but the remedy must be pursued according to the law of the place where the suit is brought. | 1062 |
| Advances in part payment of the work on a contract with the government for the construction of a fort do not vest title in the government in the materials purchased therewith. | 180 |
| Upon an agreement to do certain brickwork at a certain price in a workmanlike manner, plaintiff may recover, although the work was not done in a workmanlike manner. | 1305 |
| CORPORATIONS. | |
| See, also “Banks and Banking”; “Insurance”; “Municipal Corporations”; “Railroad Companies”; “Receivers.” | |
| The validity of a transfer of the charter by directors without consent of the stockholders cannot be questioned by the latter where they participated in the company's business under the new management, or made no objection. | 844 |
| A corporation which has attempted to increase its captital, filed papers for that purpose, received subscriptions for and sold stock and issued policies under such increase, is estopped to claim that it is not a corporation de jure. | 839 |
| Violations of a charter of incorporation cannot be collaterally drawn in question on a sci. fa. issued on behalf of the state to show cause why defendant's rights to certain land grants from the British crown should not be forfeited. | 1153 1379 |
| A charter provision requiring a corporation to take securities for stock to a certain amount does not prohibit it from afterwards selling stock upon other terms or without security. | 839 |
| A contract to purchase shares, induced by fraudulent representations or concealment of the company's agent, is not void, but only voidable, and the contract must be repudiated promptly on discovering the fraud, or it will be held binding as to creditors | 835, 844 |
| The claim of a person to be relieved against a contract for the purchase of stock may he based upon fraudulent representations of the company's agent concerning the laws of another state, and the provisions of the charter of the company granted therein. | 835 |
| False and fraudulent statements as to the condition of the company and the nonassessability of its stock, inducing its purchase, constitute no defense as against the creditors of the company. | 839 |
| Purchasers or holders of stock issued under proceedings regularly taken for an increase of capital cannot, as against the corporation or its creditors, deny the validity of such proceedings, or of the stock so issued. | 844 |
| The purchaser of a certicate of stock, who surrenders it, and has one issued to himself, and his own name entered upon the stock books, becomes subrogated to the rights and assumes the liabilities of an original subscriber. | 839 |
| Slight evidence of mutual recognition of the relation of stockholder will establish the legal position and liability. | 831 |
| Where, to the public, a company has all the external indicia of being a corporation, a stockholder, when sued for a balance due on his stock, cannot deny the authority of the company to issue such stock, or his liability thereunder. | 839 |
| In an action by the assignee of an Illinois corporation against a stockholder to recover the amount unpaid on his stock, it is not a sufficient defense that the corporate proceedings have not been strictly in accordance with the statute. | 839 |
| The provision of a by-law requiring transfers of stock to be made upon its books may be waived by the company, and, where waived at the request of the purchaser, or with his assent, he becomes liable as a stockholder. | 831 |
| The provision that stock is transferable only on the books of the company is waived by entering the name of the transferee upon the books, and the company is thereby estopped from claiming against the original stockholder. | 833 |
| If the company accepts as a stockholder a person to whom stock has been transferred in blank, he becomes liable as a stockholder, and the original stockholder is released. | 833 |
| A stockholder is liable for interest on a call from the time it is payable. | 833 |
| An order of the court requiring each stockholder of a bankrupt corporation to pay a call on his stock within a specified time is binding upon all the stockholders, whether they receive actual notice or not. | 833 |
| The word “nonassessable,” written across the face of a stock certificate, is not binding as against the assignee in bankruptcy of the company. | 833 |
| A purchaser of stock, taking an assignment in blank, may nevertheless be liable for future assessments. | 831 |
| The mortgagor of stock is entitled to vote upon it at the election of directors, and a court of equity will enforce such rights. | 1308 |
| In a suit to enforce an equitable lien against the income of a corporation, complainant may consent to the postponement of the lien in whole or in part on conditions beneficial to all the parties concerned. | 926 |
| COSTS. | |
| Costs are not usually allowed to the prevailing party where the district and circuit judges sitting together differ. | *1124 |
| A settlement of seaman's wages without the concurrence or knowledge of his proctor will not bar the latter's claim for costs. | 1179 |
| Where a proctor, in conducting a suit in rem for wages, to recover his costs, after a settlement without his knowledge with the libelant, makes unnecessary litigation, the cost thereof may be set off against his claim. | 1179 |
| COUNTERFEITING. | |
| The delivery of counterfeit money to a person, to be passed off generally for the benefit of the prisoner, is not a passing “in payment,” within Act Va. Dec. 19, 1792. | 368 |
| A person who procures or facilitates the making of counterfeit coin in his house by harboring the guilty persons therein is guilty of assisting in making such coin. (Act March 3, 1825, § 20). | 16 |
| On the trial of an indictment for assisting in making counterfeit coin by harboring the guilty persons, a witness may testify that the machines found on the premises could not collectively be applied to other uses, though they might separately be otherwise used. | 16 |
| While counterfeiting a note of the Bank of the United States is made a felony, the prisoner is not entitled to a list of witnesses and jurors two days before pleading. | 646 |
| COURTS. | |
| See, also, “Admiralty”; “Bankruptcy”: “Clerk of Court”; “Commissioners”; “Criminal Law”; “Equity”; “Judges”; “Maritime Liens”; “Removal of Causes”; “Rules of Court.” | |
| In general. | |
| Where want of jurisdiction appears upon the face of the pleadings, the objection should be taken by demurrer; otherwise by plea. | 1095 |
| A plea to the jurisdiction must be pleaded by itself, and cannot be set up in the answer. | 1298 |
| A plea to the jurisdiction of the court, alleging facts which show a want of jurisdiction, is not a submission to the jurisdiction. | 935 |
| Comparative authority of federal and state courts: Process. | |
| In cases of concurrent jurisdiction of the state court and the federal circuit court, the latter has no discretionary authority to stay or control the suit, or to refuse jurisdiction to prevent a collision between the two courts. | 1319 |
| Federal courts—Jurisdiction in general. | |
| The federal courts are of limited, though not inferior, jurisdiction, and cannot exercise any jurisdiction which is not expressly or by necessary implication conferred by law. | 18 |
| The civil jurisdiction of the federal courts in maritime causes of contract or tort embraces tide waters within the bays, inlets of the sea, and harbors along the seacoast of the country and in navigable rivers. | 718 1380 |
| The federal courts of inferior jurisdiction have jurisdiction only of crimes and offenses created by acts of congress, and then only when conferred by federal laws. | 3, 718 |
| The federal courts have no jurisdiction of the crime of larceny under Act 1790, § 16, committed in a place where the jurisdiction of the United States is concurrent with that of a state. | 159 |
| The United States have not sole and exclusive jurisdiction over land rented for a military camp, but only such jurisdiction as is necessary for military purposes. | 159 |
| Where a state grants land to the general government, reserving concurrent jurisdiction in executing process therein for offenses committed out of it, the federal courts have exclusive jurisdiction of offenses committed within such territory. | 204 |
| The rule that in cases of concurrent jurisdiction the court that first gets control of the subject-matter will continue to exercise exclusive jurisdiction until judgment is applicable to criminal cases. | 522 |
| —Grounds of jurisdiction. | |
| A citizen of the District of Columbia cannot maintain an action in the circuit courts of the United States. | 1106 |
| Where the plaintiff is a citizen of another state, a corporation created by such state cannot be made a defendant, unless it also becomes incorporated in the state where the suit is brought. | 1298 |
| Where it appears from the face of the charter of a corporation that its business is to be transacted within the state, it is sufficient to sustain the jurisdiction of the court. | 926 |
| The federal circuit court has jurisdiction of a suit brought against a citizen of the state by a citizen of another state upon a note payable to a certain person or bearer, though plaintiff is an indorsee, and the declaration contains no averment that the payee could have sued. | 1095 |
| An assignee of a chose in action not founded on contract may sue without showing that the citizenship of his assignor is such as would give the circuit court jurisdiction had such assignor sued. (Act March 3, 1875.). | 949 |
| On a bill brought by plaintiff for himself and all others who may be interested, the citizenship of the latter need not be alleged. | 926 |
| Where, in order to give jurisdiction, it is necessary that defendant shall be found within the district, a mere statement in the declaration that defendant “being in custody,” etc., is insufficient. | 766 |
| —Circuit courts. | |
| The federal circuit court has no jurisdiction of a suit in equity by a private person to interfere with or control the administration of the duties of the comptroller of the currency and of the treasurer of the United States in respect to bonds deposited with the treasurer to secure the redemption of national bank notes under Act June 3, 1864. | 935, 941 |
| The circuit court has jurisdiction where defendant is a citizen of the state in which the suit is brought, and plaintiff a citizen of another state, without reference to the division of the state into districts, where process has been served in the district in which suit is brought. | 1278 |
| Where the jurisdiction depends upon the amount involved, it is to be determined by the amount of damages laid in the declaration. | 1179 |
| —District courts. | |
| A crime committed in the Indian country west of Arkansas is not triable in the district court. | 18 |
| A person indicted for murder in the superior court of Arkansas cannot be tried on such charge in the district court on the abolition of the former court. | 18 |
| —Administration of state laws. | |
| The federal courts, in construing the law of the state, will follow the decisions of the state courts. | 948 |
| Changes and alterations made in the state fee bills after 1842 are not followed by the federal courts in equity. | 1318 |
| —Procedure. | |
| The state practice is applicable to suits at law in the district court of the Southern district of New York. | 203 |
| Local courts. | |
| The jurisdiction of the circuit court of the District of Columbia is co-extensive with the Union, and its coercive power extends to witnesses in Missouri, or any of the states. | 79 |
| The jurisdiction of the circuit court of the District of Columbia is not limited to such causes of federal jurisdiction as may be tried in a circuit court of the United States sitting in a state. | 647 |
| Unless some party defendant against whom an effectual decree can be made be found within the District of Columbia, the circuit court, as a court of equity, has no jurisdiction of the cause. | 1105 |
| The circuit court of the District of Columbia for the county of Washington has jurisdiction of an offense committed in that county against the common law of Maryland adopted by Act Feb. 27, 1801. | 419 |
| The circuit court of the District of Columbia may hold special sessions for the trial of criminal causes, at which it may try offenses committed between the time of ordering and the time of holding such session. | 647 |
| The circuit court of the District of Columbia has all the powers which were vested in the circuit court of the United States on February 27, 1801, and may send attachments into any other district for witnesses in criminal cases. | 647 |
| COVENANTS. | |
| A judgment for taxes and a sale and tax deed there under are a breach of a covenant of seisin, and it is not a good plea that the sale was not valid. | 1279 |
| It is not a breach of covenant of warranty of seisin to show a conveyance by defendant's grantor subsequent to the conveyance to the defendant. | 1279 |
| CREDITORS' BILL. | |
| A mere creditor at large cannot maintain a bill in equity to enable him to reach the equitable estate of his debtor. | 1200 |
| CRIMINAL LAW. | |
| See, also, “Arrest” “Bail” “Courts” “Extradition” “Grand Jury” “Habeas Corpus” “Indictment and Information” “Jury” “Witness.” | |
| In general. | |
| The rule requiring a criminal or unlawful attempt as an element of an offense does not apply to penal statutes not authorizing indictments. | 80 1381 |
| The putting in fear which is sufficient to excuse the perpetration of a criminal act must proceed from an immediate and actual danger threatening the life of the accused. The apprehension of the loss of property or of slight or remote injury to the person is not sufficient. | 376 |
| Penal laws must he construed strictly to bring the case within the definition of the law, but not so as to exclude a case within its words in their ordinary acceptation. | 699 |
| Where a statute creates an offense, and directs a particular mode of prosecution, that mode must be pursued. | 19 |
| Where an officer of the government procures public money by fraud, and appropriates it to his own use, the offense is punishable at common law. | 419 |
| Criminal responsibility. | |
| Insanity caused by drunkenness, where the person is not intoxicated at the time of committing the offense charged, is a good excuse. | 764 |
| Principal and accessory. | |
| There cannot be an accessory at common law to an offense which does not amount to a felony. | 645 |
| In misdemeanors there are no accessories; all are principals. | 562 |
| All persons present at the commission of a crime, consenting thereto, aiding, assisting, or abetting therein, or in doing any act which is a constituent of the offense, are principals. | 699 |
| Where defendant was not present nor aiding or abetting at the act, although he was concerned in the design to commit the offense, he is only liable as accessory before the fact. | 550 |
| Jurisdiction. | |
| The same offenses may be made punishable under both state and federal laws, and both state and federal courts will have concurrent jurisdiction over them. | 522 |
| No crime can be punished in the federal district courts which is not defined to be such by an act of congress, or the constitution of the United States. | 720 |
| The term “high seas” is used in the acts of congress in its popular and natural sense. | 718 |
| Assault with intent to kill, or an assault and battery, when committed in the Indian country, is not punishable in the federal courts. | 41 |
| An indictment will not lie in a federal court for robbery committed on land, as there is no federal law punishing such a crime. | 40 |
| Congress can legislate in respect of murder only where the crime is connected with some subject-matter or was committed in some place which brings it within the exclusive jurisdiction of the federal government. | 397 |
| Where a person by fraud procures money to be deposited to his credit, and draws against the same, the offense is complete in a place where the draft is drawn and discounted, and at the time when it is paid. | 419 |
| If the official character of an officer of the United States is not a necessary ingredient of the offense charged in the indictment, the naming him as such, and the averment that he was such an officer, will not prevent a court of law from taking cognizance of the offense. | 419 |
| Preliminary complaint, warrant, examination, and commitment. | |
| A capias is the proper process upon an indictment for misdemeanor found after service of a summons to show cause why an indictment or information should not be filed. | 367 |
| A compliant charging the crime of forgery in that one “willfully, etc., uttered and put in circulation forged or counterfeit papers or obligations or other titles or instruments of credits,” without specifying the same, is not sufficient to authorize an arrest. | 1020 |
| On a preliminary examination the court may examine defendant's witnesses to explain the testimony of witnesses for the prosecution. | 588 |
| The fact that defendant had instituted habeas corpus proceedings to secure the release of a person imprisoned by the military authorities is admissible to show that the present prosecution arose from the animosity of the authorities engendered by such conduct on his part. | 771 |
| Evidence showing probable cause to believe that the accused is guilty is sufficient to warrant his being committed for trial. | 954 |
| A commitment by a commissioner on a preliminary warrant for examination should be for a definite time, and should not exceed 24 hours, except for special cause shown, or when requested by the prisoner. | 773 |
| Where proceedings under which a person is held for trial by a commissioner are brought before the court for review by habeas corpus and certiorari, the court will examine the evidence before the commissioner, and will do what he ought to have done. | 954 |
| Limitation of prosecutions. | |
| The statute of limitations runs in favor of an offender, although it was not known that he was the person who committed the offense | 550, 562 |
| A departure of the offender from the place where the offense was committed to his usual residence in another part of the United States for the purpose of avoiding punishment for any offense, is a fleeing from justice, and the statute will not run until his public return to the place where the offense was committed | 550, 562, 568 |
| Where a statute punishes as a misdemeanor an offense which at common law was a felony, the limitation of the prosecution is that of misdemeanors, though the statute was passed subsequent to the statute of limitations. | 562 |
| The limitation of two years is applicable to common-law offenses in the District of Columbia. (Act April 30. 1790.). | 419 |
| The time of finding the indictment will appear by the caption, and, where it appears there from that the offense was committed beyond the time limited, judgment will be rendered for defendant. | 419 |
| An indictment will not be quashed because it appears upon the record that it was not found within two years after the offense was committed, as the defendant might have been a fugitive from justice. | 550, 562 |
| It is not sufficient ground of arrest of judgment that it appears upon the face of the indictment and the record that the indictment was not found within the time of limitation. | 562 |
| Where it appears upon the whole record, upon an indictment for misdemeanor that the offense was committed more than two years before the indictment was found, defendant may avail himself of that defense by a general demurrer. | 570 |
| The defense of limitation is admissible under the general issue, and the prosecution may show that defendant fled from justice, and therefore was not entitled to the benefit of the limitation. | 562, 568 |
| Former jeopardy. | |
| The discharge of a jury will be considered equivalent to an acquittal where it did not appear by the minutes of the court that the grounds of postponement—the illness of the district attorney and the absence of witnesses—were matters of surprise, nor that defendant consented thereto. | 499 1382 |
| Control of prosecution. | |
| An information at the suit of the commonwealth of Virginia may be discontinued before appearance of the defendant. | 1224 |
| A prosecutor liable for costs upon an indictment for a misdemeanor has no right to withdraw the prosecution without the consent of the attorney of the United States. | 1223 |
| Arraignment and pleas. | |
| Pleas in abatement to an indictment must be pleaded with strict exactness. | 666 |
| Quære, whether the fact that an interested person caused himself and others to be nominated and placed upon the grand jury which found the bill may be pleaded in abatement. | 666 |
| The mere fact that the prosecutor was a member of the grand jury which found the bill, and participated in its proceedings, is not a good ground for a plea in abatement to the indictment. | 666 |
| A plea in abatement to an indictment alleging irregularities in drawing and summoning grand jurors, and want of qualification, where no prejudice is averred, is bad on demurrer. | 234 |
| A previously formed and expressed opinion of defendant's guilt by one of the grand jurors who found the indictment is no ground for a plea in abatement. | 572 |
| Where an indictment for homicide is held bad, the prisoner will be remanded to custody on proof of the commission of the offense. | 201 |
| Time and place of trial. | |
| Where the government is not diligent in producing its testimony, the prisoner should be discharged. | 773 |
| Where the jury has been discharged on failure to agree, the case may be tried again at the same term. | 550 |
| Where defendant has pressed for trial, he cannot, when the cause is called for trial, ask for a change of venue on the ground of prejudice. | 562 |
| Trial. | |
| Act April 30, 1790, § 28, which requires a list of the witnesses to be delivered to the prisoner three days before the trial, is confined to treason. In other capital offenses nothing more is required than a delivery of a copy of the indictment and a list of the jurors. | 754 |
| Persons jointly indicted for a capital offense are not entitled, as a matter of right, to separate trials. | 580 |
| On a joint indictment it is not a matter of right to have defendants tried separately, by it is discretionary with the court. | 699 |
| The court may order certain witness to be removed while others are testifying, but it will not require them to be kept separate. | 550 |
| After a witness has been once examined, it is discretionary with the court to permit him to be examined again as to new matter. | 699 |
| Counsel will not be permitted to argue a point of law to the jury which has been decided by the court. | 1227 |
| Counsel will be permitted to argue before the jury questions of law not involved in the instruction upon a question not asked and submitted to the court. | 419 |
| It is improper, after the jury have retired, to give an instruction upon a question not asked by them. | 568 |
| If a jury, after having retired to consider their verdict, return into court to re-examine a witness, neither party will be permitted to ask any question of the witness, nor to make any motion to the court in the presence of the jury. | 1227 |
| A motion by the district attorney, made before verdict, for leave to enter a nolle prosequi on an indictment, must be granted as a matter of right. | 501 |
| Evidence. | |
| Where an intent is charged in a statute as constituting part of a crime, it must be proved as a fact. | 624 |
| On an indictment for obtaining money under false pretenses, evidence of previous false representations to others for the purpose of obtaining money, is admissible, but not evidence that defendant obtained money thereby. | 1337 |
| A pardon granted by a governor of a state under its great seal is evidence person without any further proof. | 699 |
| Parol evidence is admissible to explain the intention with which a deed was made. | 78 |
| The acts of a co-defendant are admissible to show the connection between him and the prisoner in the same offense. | 699 |
| The evidence of an accomplice cannot be corroborated by his statements at another time unless it has been impeached. | 699 |
| The declarations of a person charged with the same offense as defendant in a separate indictment, made after the supposed accomplishment of the common purpose, are inadmissible. | 550 |
| How far the acknowledgment of a prisoner as to a crime meditated to be committed may be given in evidence to connect it with the offense for which he is on trial. | 15 |
| When not made under oath, confessions of the accused are admissible in evidence, although the proof that the crime has been committed is not independent of the confession plenary. | 636 |
| The admissions of a prisoner, though not in writing, or given in his words, are admissible; but the whole of a connected conversation on the subject must be given. | 699 |
| Whether the accused, in making confessions before the finding of the indictment, believed himself to be speaking under oath or not, is a question of fact for the jury. | 636 |
| The jury must consider the evidence in relation to an alibi, and give it whatever weight they think it deserves. | 675 |
| The circumstances relied upon to establish guilt ought to be so strong as to leave no doubt of the fact; and they should be consistent with themselves, each circumstance tending to establish the guilt of the accused. | 360 |
| —Jury. | |
| On a trial for murder the jury must be kept together, both day and night. | 762 |
| After the jury has been out a long time without any probability of agreeing in a case of misdemeanor, they may be discharged without defendant's consent. | 419 |
| Verdict: Judgment: Sentence. | |
| Where the jury bring in a verdict not answering to the whole matter in issue, the court, without recording it, will inform the jury that they may retire, and reconsider their verdict. | 419 |
| Where a verdict is so imperfect that no judgment can be given upon it, though it has been recorded, defendant has not been in jeopardy, and a new trial will be granted. | 419 |
| A verdict of “not guilty upon the plea of limitations, more than two years having elapsed from the committing of the offense to the finding of the indictment,” is argumentative, and bad. | 550 |
| When the facts found by a verdict neither establish nor are inconsistent with the guilt or innocence of defendant, there is no verdict. | 419 |
| A verdict of acquittal, against the law as laid down by the court, cannot be set aside. | 699 |
| An averment that the prisoner was tried and convicted of larceny, as by the record of the court doth appear, is not sufficient to sustain a sentence as on an indictment for a second offense. | 90 1383 |
| A verdict will not he set aside because a juror, during the trial, indiscreetly made a remark out of court, where the same showed no bias, but only the impressions received from the evidence. | 3 |
| Upon a motion in arrest of judgment the court will presume that everything which was necessary to support the verdict and could be proved under the issue was proved to the satisfaction of the jury. | 562 |
| The judgment will be arrested where, upon a special verdict, it does not appear that the offense was committed before the filing of the information. | 1225 |
| Circuit courts of the United States have power to grant new trials after conviction, both in misdemeanors and felonies. | 636 |
| The burden rests upon the party charging misconduct of a juror during a trial to prove it. | 3 |
| A stay of proceedings will not be granted after verdict to enable counsel to prepare a bill of exceptions, where none of the exceptions go to the merits. | 675 |
| A conviction on an indictment for smuggling, where the imprisonment imposed is served out, and the fine paid, and a pardon received as to the costs of prosecution, also imposed, will bar a civil action of debt to recover the penalty of double the value of the goods smuggled. | 190 |
| Where a statute directs a fine and imprisonment to be imposed for an offense, the court, on conviction, is bound to inflict both. | 374 |
| A slave convicted of manslaughter in Alexandria, D. C, may be punished by burning in the hand and whipping. | 200 |
| On an acquittal of the crime charged, the court will not require the prisoners to give security for their good behavior, although it appear from the evidence that they are guilty of another crime. | 368 |
| CUSTOMS DUTIES. | |
| See, also, “Forfeiture” “Informers.” | |
| Customs laws. | |
| An act laying duties on goods imported “from and after the passage of the act” takes effect from the beginning of the day on which it is passed, and not from the time of its being signed by the president. | 677 |
| The revenue laws are not within the rule that penal laws are to be construed strictly in favor of those who may be prosecuted under them. | 257 |
| The interpretation of doubtful and ambiguous words is to be explained in subservience to the common policy of the country. | 535 |
| In a case of serious ambiguity, or doubtful classification, or vague or doubtful interpretation, the construction of the act must be in favor of the importer. | 323 |
| Act March 2, 1799, c. 128, § 30, applies to all vessels arriving at a port, whether the arrival be voluntary or by stress of weather, or the port be the intended port of departure or not. | 507 |
| Rates of duty. | |
| Bristles, being separately classified, are not included in the general words “the hair of an animal.”. | 1274 |
| Constitution of terms “anchor iron,” “anchors.” “bar iron,” “straight, bent, and turned links,” “cables, and parts thereof”. | 56 |
| Brass is a metal within the tariff acts, and Dutch metal, being a manufacture of brass, will not be considered a manufacture of which copper is a component of chief value. (Act Feb. 24, 1869.). | 323 |
| Cordage, ravensduck, and sail cloth are not “sea stores” (Act 1799, § 45), but, if not intended for the use of the ship, they are a part of the cargo. | 276 |
| Rate of duty on indigo under Acts July 14, 1832, c. 227, § 24; March 2, 1833, c. 55, 8–5; 1841, c. 24, § 1; Aug. 30, 1842, c. 270, § 25. | 595 |
| Juniper cordial, which contains sufficient sacharine matter to disguise 11 per cent, of alcohol, is a sweet cordial, within section 103 of the customs act of 1799. | 141 |
| Marble cut into blocks simply for convenience in transportation is not dutiable as manufactured marble. (Act 1832.). | 724 |
| Telegraph cable, composed of iron wire and gutta percha, held dutiable as a manufacture not otherwise provided for, of which iron is the component material of chief value. (Act March 2, 1861, § 22.). | 353 |
| Invoice: Entry: Appraisal. | |
| The collector has no power to permit an entry of merchandise unaccompanied by an invoice, or a sufficient excuse for its absence. (Act March 3, 1863, § 1.). | 55 |
| Goods imported by the purchaser, when subject to ad valorem duty, should be entered at the purchase price, while goods imported by the manufacturer should be entered at the market price or value at the place of exportation | 236, 281, 283 |
| Where goods are shipped and billed from one port, and the true price at such port is given in the invoice, which is dated at a later port, the collector cannot add the freight between the two ports to the invoice value as given by the importer. | 862 |
| Under Act July 30, 1846, § 8. a collector has authority to assess the additional duty for the undervaluation of purchased goods, although the importer has made no addition in the entry to the invoice value of the goods. | 862 |
| A reappraisement made under Act Aug. 30, 1842. § 17, is illegal and void where the merchant appraiser was sworn by the official appraiser. | 862 |
| Freight and commissions, by being added to the value of imports, cannot be made the means of imposing a penalty on the latter. (Act July 30, 1846. § 8.). | 862 |
| Payment: Protest. | |
| An error in the liquidation of duties under 1 Stat. 627, § 65, may be predicated upon the fact that the vessel belongs to citizens of the United States, and not to foreigners. | 695 |
| Sufficiency of protest “that no penalty of 20 per cent., under section 8 of the act of 1846, can be exacted except where the importer has added to his invoice price on entry.”. | 862 |
| A clause in the protest “that the merchant appraiser was not legally sworn in” is sufficient where the annexed oath shows the illegality on its face. | 862 |
| The invoice and entry in a case may ordinarily be regarded as composing part of the protest. | 862 |
| Manifest. | |
| Articles purchased abroad for a vessel, to be used as a part of her equipment, are not so a stores (Act March 2, 1799), and, where they remain on board on her arrival, they need not be reported by the master in his manifest. | 290 |
| A forfeiture is not saved by making a manifest after the arrival of the vessel within the limits of a port of entry with the intention of lauding them there, though before it is demanded by the customs officer. (Act 1799, § 24.). | 38 |
| The master is subject to a fine for failure to produce a manifest, as required by Act 1701, § 26. | 32 1384 |
| Unlading. | |
| Goods landed without a permit, though by the unlawful act of the master, and without the knowledge or consent of the owner or consignee, are subject to forfeiture. | 242 |
| Such goods are subject to forfeiture, though they were the product of the United States, and simply transported to a foreign country, and were exempt from duty, and all the laws and regulations relating to such transit had been complied with. | 242 |
| What constitutes a violation of Act March 2, 1799, c. 128, §§ 27, 28, 50, in unloading goods without a permit. | 383 |
| Action for duties. | |
| Under Rev. St. § 724, the United States may be compelled to produce the official weigher's returns on motion of a defendant sued for a balance of duties alleged to be due on the goods, to enable him to prepare for trial. | 801 |
| Violations of law: Forfeiture. | |
| An action will lie to recover the value of goods against the owner, consignee, or agent who knowingly makes or attempts to make an entry of them by any of the false or fraudulent means specified. (Act March 3, 1863, § 1.). | 612 |
| To subject goods to forfeiture for a false valuation in an invoice, it must have been produced at the customhouse for the purposes of an entry. | 244 |
| A misdescription of the whole package is not a cause of forfeiture under Act July 14, 1832, § 14, el. 2. | 35 |
| The master who takes goods on board without any bill of lading or invoice, with the intention to smuggle them, or duly enter them, as he may elect, must be deemed the consignee, though the goods were to go to the use of a third person. | 38 |
| To constitute smuggling, there must be something in the manner of the importation which violates the statute, such as secrecy or concealment, intent to defraud the revenue, or the like. | 76 |
| The intent to pass the customhouse at less than a proper sum is necessary in order to warrant a condemnation of the goods for undervaluation. | 135 |
| The removal of the customhouse seal must be shown to have been willful to warrant a forfeiture of the property under Act June 27, 1864, § 5. | 144 |
| Goods are not subject to forfeiture because the importer has attempted to enter them at a rate of duty less than that to which they are ultimately found to be liable, when there is in fact no false description of them with intent to defraud the revenue. | 56 |
| An attempt to enter anchors or bar iron as “anchor iron,” parts of chain cables as “links,” and boat iron as “straight links,” if done with attempt to evade the revenue law will subject them to forfeiture. (Act May 28, 1830, § 4.). | 56 |
| Where the invoice by which an entry is made states the value in two kinds of foreign coin, there is no fraud justifying a forfeiture where the real value of the coin is underestimated under the federal laws. | 135 |
| The whole package is not forfeited for the omission from the entry of an article therein, unless it appear that the package or invoice was made up fraudulently. (Act July 14, 1832. § 14.) | 34, 35 |
| Where goods subject to duty are mixed with other goods upon which duties have been paid at an earlier port of entry with an intention to smuggle them, the latter are not subject to forfeiture, unless there was an intent to defraud by importing them. | 315 |
| Cases of goods not entered on the manifest, and landed with the owner's personal baggage, are subject to forfeiture. | 110 |
| Trunks containing dutiable goods, found in a state room after all the passengers and baggage had been landed, marked in the purser's name, without his authority, and not entered on the manifest, held subject to forfeiture as concealed. (Act March 2, 1799, § 68.). | 320 |
| The provision of the tariff law of 1842, making the importation of indecent and obscene paintings cause for forfeiture of the entire invoice, is applicable, though the painting is not a distinct article, but is affixed to another article, such as a snuff box. | 112 |
| Nor is the balance of the invoice exempted from confiscation by the fact that the owners thereof were unaware of the character of the paintings. | 112 |
| Where goods are refused an entry for want of an invoice, they are forfeited if the owner attempts to procure an entry by any false and fraudulent practice or appliance whatever. | 55 |
| The penalty of section 24 (Act 1799, c. 22) applies only to articles imported in a vessel owned in whole or in part by citizens or inhabitants of the United States. | 288 |
| An irregularity in the seizure is not available to claimants in the suit for forfeiture. | 257 |
| On an information under Act May 28, 1830, against articles alleged to be falsely charged in an invoice, the court will not grant an order on the claimant to produce the invoice at the trial. | 244 |
| The bond for the return of seized goods (Act 1799, § 89) should include the additional sum imposed by Act March 3, 1865, as a penalty for undervaluation. | 113 |
| The bond should be for the actual cash value of the property at the time and place of seizure, without deduction for duties paid, where the property has been seized in the hands of the importer | 113, 239 |
| Where a stipulation for value is given in a sum agreed upon, the stipulators are not entitled to any reduction for erroneous estimation of value, or for injury by careless handling of the goods by the collector's employes. | 322 |
| An indictment for smuggling must allege the facts relied upon as rendering the importation alleged an offense, or state the particular illegality intended to be proved, and such allegation must be proved as made. | 76 |
| In informations of forfeiture for false valuation of imported goods it is sufficient to make the averments in the words of the statute. | 48 |
| In an information in rem under Act 1799, c. 22, § 66, it must be charged that the goods were entered tinder a false invoice, and that they were falsely invoiced to evade the duties. | 141 |
| Customs inspectors are authorized to receive imported goods found concealed on a vessel, and a libel alleging a seizure by the collector may be amended to show the facts. | 320 |
| On an information against specific articles as “sea stores” forfeited, they cannot be adjudged to be forfeited as a part of the cargo or merchandise, or as a part of the tackle, etc., of the ship. | 276 |
| On an information for forfeiture for undervaluation the United States are not bound by the action of the revenue officers in assenting to the invoice valuation, but they must show undervaluation at the trial. | 257 |
| A material undervaluation shown will be presumed to have been made with intent to defraud the revenue, in the absence of clear and credible testimony excusing it. | 314 |
| Where, in a suit for forfeiture, sufficient evidence has been given to show probable cause for the proceeding, the burden of proof is thrown on complainants. | 257 1385 |
| On a libel for undervaluation, a fraudulent purpose will be implied upon proof of the undervaluation, which complainant must rebut by showing an innocent mistake. | 133 |
| In a suit for forfeiture under Act 1799, c. 22, § 68, the government must prove that the goods were “concealed,” and the mere fact that they were not entered on the manifest is not sufficient. | 288 |
| The concealment in such case must be a concealment from the customs officers. | 288 |
| A mere misdescription of shawls as worsted shawls which are made up of cotton and worsted, is not of itself competent evidence of a fraudulent intent such as will warrant a forfeiture of the goods under Act July 14, 1832, § 14 | 34, 35 |
| On a proceeding to forfeit goods as having been invoiced at less than their actual cost at the place of exportation, the market price at that place at the time is admissible as the surest test of the honesty of the transaction. | 293 |
| In a suit for the value of goods fraudulently entered under Rev. St. § 2864, the recover is not limited to the sum which defendant received on the sale of the goods by him. | 800 |
| Where a systematic arrangement to defraud the revenue is charged, a new trial will not be granted because one of the packages was appraised at less than the invoice value. | 274 |
| Where the seizure is under circumstances warranting suspicion, the collector is entitled to a certificate of probable cause. (Act 1799, §§ 71, 89; Act 1807, § 1.). | 107 |
| A certificate of probable cause of seizure is properly granted on the report of public and merchant appraisers that an importation and entry was fraudulently made with intent to evade payment of duties. | 56 |
| A collector is entitled to such certificate where the public appraisers on the valuation of two merchant appraisers reported that certain goods were invoiced 19 per cent, below their market value. | 107 |
| Bonding: Warehousing. | |
| The fact that the appraisers have materially raised the invoice value of imported goods is prima facie, but not conclusive, evidence of undervaluation in a subsequent proceeding to forfeit the goods on the ground of fraudulent invoice. | 314 |
| The fact that the consignee, upon entering the goods, added 2 per cent, to the invoiced value thereof merely as a precaution against having the goods subjected to penal duties and forfeited, does not prejudice the question whether the shipper of the goods stated the value thereof correctly in the invoice. | 135 |
| A bond for duties in the alternative may be discharged by payment of the sum named in the condition, though less than the duties. (Act March 2, 1799, c. 128.). | 90 |
| A duty bond for which a check is received in payment by the collector is not paid until the check is paid. | 678 |
| The 10 per centum additional duty imposed on goods withdrawn from the warehouse after one year from their importation (Act March 14, 1866) is also to be assessed upon goods never withdrawn, but sold to satisfy duties. | 332 |
| Where goods entered in bond for re-exportation have been exported, passed through a foreign customhouse, and are subject to retail trade, they are mixed with the common merchandise of the country, and may be again imported into this country. | 535 |
| Customs officers. | |
| The office of an inspector ceases with that of the collector who appointed him, and an indictment for resisting such inspector after the resignation of the collector, and before his reappointment to office by the succeeding collector, cannot be sustained. | 752 |
| DEBT, ACTION OF. | |
| Where a penalty is given by statute, and no remedy for its recovery is expressly given, debt will lie. | 612 |
| Debt lies by the indorsee of inland bill against the acceptor. | 1305 |
| DEED. | |
| See, also, “Boundaries” “Vendor and Purchaser.” | |
| The delivery of a deed is essential to its validity. | 861 |
| A grantee or assignee of a reversion cannot take advantage of a re-entry by force of a condition broken. | 1155 |
| A party disseised cannot convey by a quitclaim deed his title to the premises of which he is disseised. | 1346 |
| The officer need not certify that the deponent signed a deposition, where he certifies that the deposition was reduced to writing by him. | 1236 |
| A mistake in the name of a party, where he is designated as plaintiff or defendant and the name is correctly stated in the title, is no ground for rejecting the deposition. | 1236 |
| Depositions de bene esse, taken under Rev. St. § 863, may be opened before trial by order of the court on motion against the objection of the other party. | 169 |
| Act Sept. 24, 1789, § 30, is not changed by Rev. St. § 865, in respect to the time when depositions de bene esse may be opened. | 169 |
| Where the owner of a certain lot sells A. 40 acres on the east end, and afterwards sells B. a certain tract “containing 30 acres by measure,” being “the west part of” such lot, held, that the latter deed would convey all the land in the lot not conveyed to A., and was not limited to 30 acres. | 1346 |
| Any one may perform a condition who has an interest in it or the land whereto it is annexed. | 1155 |
| Where a condition is once performed, the thing to which it was before annexed becomes absolute, and wholly unconditional. | 1155 |
| DEPOSITIONS. | |
| A witness examined under Rev. St. § 863, may be compelled to produce books and papers which would be competent for the party calling him upon the trial, but cannot be compelled to produce them to refresh his memory. | 174 |
| It is no objection to a deposition that it is not stated in the caption in what county the cause is pending, nor that the name of one of the parties is misspelled, nor that the magistrate has not certified that he reduced the testimony to writing in the presence of the witness, or that the witness signed it in the presence of the magistrate. | 1044 |
| The authority of the magistrate need not be proved otherwise than by his own certificate. | 1107 |
| Where the deposition is reduced to writing by the witness himself, it must be done in the presence of the magistrate; but such fact may be proved aliunde. | 1107 |
| DISCHARGE. | |
| See “Bankruptcy” “Insolvency” “Release and Discharge.” 1386 | |
| DISCOVERY. | |
| A bill of discovery will lie against a corporation. | 1111 |
| In a bill of discovery purely in aid of an action at law it must be alleged that the facts sought to be discovered are material to complainant's case, and that the discovery of them by defendant is indispensable as proofs. | 1107 |
| A party will it not be compelled on a bill of discovery to produce evidence which would subject him to a forfeiture. | 244 |
| DISORDERLY HOUSE. | |
| Upon an indictment for keeping a disorderly house and a bawdyhouse the United States cannot give evidence of the general character of defendant. | 404 |
| DISTRICT OF COLUMBIA. | |
| All the state prerogative which Maryland enjoyed under the common law which she had adopted passed to the United States. | 419 |
| Construction of Act May 7, 1822, authorizing the corporation of Washington to drain the low grounds on or near the public reservations, etc. | 1057 |
| DOMICILE. | |
| See, also, “Courts “Prize “Removal of Causes “War.” | |
| The domicile of a person is not affected by removal to another state, where he intended to return, and ultimately did return, and never voted in the latter place. | 107 |
| EJECTMENT. | |
| See, also, “Real Property.” | |
| Ejectment cannot be maintained on a warrant for Pennsylvania lands where there has been no suvey or payment of purachase money. | 1011 |
| In an action of trepass to try title in Texas it is not necessary to prove an actural trepass by defendent, except in cases where there is no controversy about the title, but only as to boundaries, and where the plaintiff, having the superior title, charges defendant with trepassing on his land. | 1185 |
| As to the validity and effect in evidence of a document purporting to be an appointment of a certain person as commissioner for the distribution of land in Texas. | 1185 |
| ELECTIONS AND VOTERS. | |
| In an indictment under Rev. St. § 5511, for offenses against the elective franchise, it is sufficient to charge the offense in the language of the statute. | 546 |
| EMBARGO AND NONINTERCOURSE. | |
| The embargo law of December 22, 1807, and March 12, 1808, are not unconstitutional, either on the ground that they exceed the powers of congress to "regulate" because the interdict all foreign commerce, or because they are not, by their terms, limited to a specific duration. | 614 |
| An action of debt to recover a penalty for violation of the embargo laws (1807–1808) may be brought in any district where the offender may be found. (Act Feb. 28, 1839.). | 766 |
| Upon the seizure and condemnation of a vessel for violation of Act Feb. 28, 1806, only half of the forfeiture goes to the United States. | 799 |
| Vessel and cargo condemned upon the evidence for violation of embargo laws. | 624 |
| only half of the forfeiture goes to the United States. | 799 |
| Vessel and cargo condemned upon the evidence for violation of embargo laws. | 624 |
| EMBEZZLEMENT. | |
| On the preliminary examination of the accused, charged with embezzlement, evidence of the actual existence of a certain national bank, and of acts done by the accused as president thereof, is sufficient evidence of the legal incorporation of the bank, and of the connection of the accused with it. | 954 |
| Where the president of a national bank converts its funds to his own use, he is guilty of embezzlement, under Act June 3, 1864, § 55, unless he show authority for so doing. | 954 |
| On indictment of a bank cashier under Act June 3, 1864, § 55, for embezzling funds of the bank, evidence that the funds were used in stock speculations with the consent of the officers of the bank, and for its benefit, is inadmissible to disprove the averments in the indictment that the acts were done with intent to injure and defraud the bank. | 7 |
| EMINENT DOMAIN. | |
| The legislature of a state cannot take lands of a person without making' just compensation in money, to be fixed by agreement with the parties, or by arbitration, or by a jury. | 1012 |
| The use of land in a public street for the purposes of an ordinary railroad is a new burden, which cannot be imposed without previous compensation to the owner of the fee of such land. | 948 |
| The use of land in a city street for the purposes of an ordinary horse railroad is not a new burden, and the owner of the fee is not entitled to compensation. | 948 |
| EQUITY. | |
| See, also, “Courts” “Pleading in Equity” “Practice in Equity.” | |
| Equity has jurisdiction of a bill to enforce an equitable lien. | 926 |
| Equity will not maintain a bill for redress in cases of loss or injury to a principal from the negligence or misconduct of his agent; the appropriate remedy being at law for damages. | 1293 |
| A debt due from a purchaser for the price of goods sold by an agent of the owner, who refuses to pay because of a private claim against one of the agents, is not the debt of the agent, and is not the subject of a suit in equity until reduced to judgment by an action at law. | 1293 |
| Lapse of time is a sufficient bar to a bill in equity to rescind a sale on the ground of fraud where the plaintiff might have acquainted himself at the time of the sale with the facts, and especially if the circumstances be greatly changed, and the evidence be lost or obscured. | *1124 |
| After the lapse of five years, where the property has greatly depreciated in value, a bill cannot be maintained to set aside a sale by auction by defendant's agent on the ground of fraudulent by bidding which enhanced the price, but which was without defendant's knowledge or connivance. | *1124 |
| The rule in equity that the answer of one co-defendant is no evidence against another does not apply where the defendants are all partners in the same transaction. | 1067 |
| It is discretionary with the court, under rule 78, to stay the proceedings to allow a party to take a new deposition or to cross-examine a witness already examined by deposition for the opposite party, under Act Sept.” 24, 1789, § 30. | 998 1387 |
| The federal circuit courts have power to appoint examiners, and it is within their discretion to appoint the standing examiners, or designate others. | 998 |
| An oral examination before an examiner without a written agreement between the parties to waive written interrogatories, is irregular, but the objection is waived where the party, after due notice that such oral examination is to be taken, or has been taken, acquiesces in it. | 998 |
| Where accounts are referred to a master, the court will not settle principles previous to taking the account, but they must be brought before it on exceptions. | 975 |
| Neither a petition nor an order for a rehearing of itself stops proceedings under the decree. | 1286 |
| ESTATES. | |
| In limitations of legal estates, where a remainder of inheritance is limited in contingency by way of use or by devise, the inheritance in the meantime remains in the grantor or his heirs, or in the heirs of the testator, until the contingency happens to take it out of them. | 1200 |
| A lease by a tenant for life or during widowhood, for a certain number of years, is valid to the extent of the interest of the lessor. | 1364 |
| A lease by a life tenant for a certain number of years, unexpired, held no impediment to the exercise of a power of sale under the will. | 1364 |
| ESTOPPEL. | |
| The doctrine of estoppel applies to a state as well as to private persons. | 1155 |
| Where a state grants to a town the use of certain land for the benefit of the town, it is estopped from claiming a forfeiture by reason of a condition broken before the grant was made. | 1155 |
| The question whether the recitals of a deed tending to show the execution of a former deed by the same grantor to another grantee estopped the grantor and those claiming under him from denying the fact of the execution of such deed, cannot be determined unless the fact of its execution is put in issue by bringing a bill to set it up as a lost deed. | 1200 |
| EVIDENCE. | |
| See, also, “Appeal” “Criminal Law” “Deposition” “Trial” “Witness.” | |
| Judicial notice. | |
| The federal courts will take judicial notice of the existence of all national banks. | 635 |
| Presumptions: Burden of proof. | |
| The presumption that all the partners in a firm have access to the partnership books, and know the entries therein, may be repelled by any circumstances which lead to a contrary presumption. | 811 |
| Best and secondary. | |
| A letter from defendant's agent to plaintiffs agent is not admissible on behalf of defendant where the former can be produced. | 1106 |
| Parol proof of the contents of a written agreement cannot be given in evidence where the contract is in the hands of the opposite party, unless notice be served on the party or his attorney to produce it. | 731 |
| Parol evidence of the contents of a warranty cannot be given unless the loss of the warranty be proved. | 414 |
| Opinions. | |
| Witnesses acquainted with the mode of accounting of the treasury department cannot be called to give their opinion as to the effect of particular charges. | 608 |
| Documentary. | |
| A receipt is prima facie evidence that the sum of money expressed in it was paid according to its tenor. | 1200 |
| The certificate of a record made by the clerk of a district court is sufficient, where the seal of the court is affixed to the record, without any attestation of the presiding judge. | 755 |
| A copy of a protest is admissible in evidence-against a vessel, though its correctness is not proved, where it appears that a protest was made and signed by the mate of the vessel at the time and place where the copy purported to have been made, and the mate, though called as a witness, did not dispute it. | 1234 |
| A copy of a survey of a vessel, not purporting to have been made by any one connected with her, is not admissible against her, no witness able to prove or disprove its correctness being called or shown to be within reach. | 1234 |
| Evidence at former trial. | |
| What a witness since deceased swore to at a former trial may be proved by a person present thereat, if he can repeat the testimony, and not merely its substance. | 754 |
| Such witness may refresh his memory from notes taken at the time, or from a newspaper printed by him, containing the evidence as taken down by him. | 754 |
| What a deceased witness testified to at a former trial may be substantially proved; the exact words are not necessary. | 572 |
| Competency: Materiality: Relevancy. | |
| The statements of the bearer of a key of leased premises, made on returning it, are admissible as a part of the act. | 16 |
| A letter offering to compromise, but containing a waiver, may be read in evidence, not to prove the offer, but to establish the waiver. | 824 |
| Representations by an agent that certain invoices exhibited to him by a purchaser were true invoices sent by the principal, are admissible against the principal for the purpose of showing the falsity of certain other invoices under which the goods were entered. | 109 |
| EXECUTION. | |
| See, also, “Attachment” “Bankruptcy” “Judgment.” | |
| The equity of redemption of a leasehold estate is not subject to seizure and sale on execution. | 1044 |
| A rule to show cause why execution should not be stayed on a ground that defendant is entitled to further credit will not be granted except upon affidavit stating the precise credits and their nature. | 522 |
| Const. Or. art. 1, § 19, prohibiting “imprisonment for debt except in cases of fraud,” does not apply to an action for a tort or penalty, but only to cases of debt arising upon contract, express or implied. | 391 |
| The conditions and restrictions imposed by state law upon the allowance of imprisonment for debt subsequent to Act Jan. 14, 1841 are not adopted by such act, and are not in force in the federal courts, unless adopted as a rule thereof. | 391 |
| Act March 2. 1867, adopts the modifications, conditions, and restrictions upon imprisonment for debt then existing by the laws of the several states, and the course of proceedings which may thereafter be adopted therein. | 43 |
| The United States, as plaintiffs in an action at common law, are not exempt from the provisions of that act by virtue of their prerogative. | 43 1388 |
| The principle of the common law that a man shall not be taken twice in execution for the same cause is as applicable to the United States as to other creditors. | 490 |
| EXECUTORS AND ADMINISTRATORS. | |
| A bill will lie in equity against an administrator to recover assets which he has fraudulently withheld, notwithstanding a final settlement of his accounts by a probate court. | 949 |
| An administrator appointed in one state, who has received assets of the estate in another state, cannot be compelled in the latter state to account therefor. | 1113 |
| If assets in a foreign jurisdiction come into the possession of an administrator by a voluntary delivery to him, he may be required to account for them in the home jurisdiction. | 949 |
| Interest on money in the hands of the administrator is not chargeable where the same is retained to determine the right of the claimant by suit. | 1318 |
| EXEMPTIONS. | |
| See “Bankruptcy.” | |
| EXTORTION. | |
| Extortion is the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due him, or more than is due, or before it is due. | 386 |
| A register of a land office cannot lawfully act as attorney for an applicant for a patent, and where, acting as such, he receives a gross sum as compensation for services in both capacities in excess of legal fees as register, he is guilty of extortion. | 386 |
| EXTRADITION. | |
| Under the treaty of 1874 with Belgium, the date of the signing, and not the date of the ratification, is the time intended in the declaration that its provisions shall not apply to any crime committed prior to its date. | 974 |
| The warrant on a requisition from the government of Belgium under the treaty of May 1, 1874, art. 6, is sufficient if issued from the state department under its official seal. | 1020 |
| The judicial department will presume from the mandate of the secretary of state that a warrant for the arrest of the alleged fugitive for the crime imputed to him was issued in Belgium. | 1021 |
| Under the extradition treaty of 1874 with Belgium it is no ground of discharge of the alleged fugitive on habeas corpus that the warrant of arrest was issued by the proper judicial officer, instead of by the president. | 1021 |
| A complaint on oath, made by the consul general of a foreign country before a commissioner in the district, on the strength of telegrams and depositions taken abroad, held sufficient to justify the court in remanding the prisoner for examination before the commissioner before whom the complaint was made, and who issued the warrant of arrest. | 1021 |
| A charge of having committed, within the jurisdiction of a foreign country, the crime of vol qualifie, being one of-the crimes enumerated and provided for in a treaty of extradition, held sufficient to sustain a commitment and warrant of extradition. | 1147 |
| Sufficiency of evidence to justify the extradition of a prisoner charged with having forged an acceptance in England under the provisions of the treaty of August 9, 1842. | 411 |
| Where the commissioner has jurisdiction, and has before him legal and competent evidence, his decision on its weight and effect is not subject to review. | 931, 974, 1337 |
| On habeas corpus the court can only consider the question whether the commissioner had jurisdiction, and whether there was legal evidence before him tending to prove the accusation. | 931 |
| FACTORS AND BROKERS. | |
| A factor cannot pledge the goods of his principal for his own debt, and, if he does, the principal may, after a demand and refusal, maintain trover for them against the pledgee. | 933 |
| A supercargo has the right to retain the proceeds of cargo for a general balance due to him by the owner, though they have assigned the cargo and bill of lading to a trustee for the benefit of certain creditors. | 1309 |
| FALSE PRETENSES. | |
| An indictment for obtaining money by false pretenses must state what was pretended, and that it was false, and in what particular it was false. | 419 |
| FORFEITURE. | |
| See, also, “Customs Duties” “Informers” “Internal Revenue” “Shipping.” | |
| Laws imposing forfeitures for fraud are not technically penal, so as to call for a strict construction, but are to be construed so as effectually to accomplish the intention of their makers. | 612 |
| When a statute denounces a forfeiture of property as a penalty for the commission of crime, the forfeiture takes place when the offense is committed, if the denunciation is in direct terms, and then operates as a statutory transfer of the property to the government. | 280 |
| The court of the district where the property is seized has jurisdiction of the information, though the violation of the law occurred in another state. | 115 |
| The allegations in the information must be sufficiently specific to enable the claimant to traverse them, and the court to see that, if proved, a violation of the statute exists. The technical precision of an indictment is not necessary. | 121 |
| The belief of the party should be expressed in the form of verification, not in the body of the pleading. | 252 |
| The general issue cannot be pleaded to a libel, information, or libel of information for a forfeiture in the federal courts. | 252 |
| The conclusion in an answer should not be to the country, but a simple prayer for restitution. | 252 |
| Informations filed by United States attorneys are amendable even after pleas filed and in substance. | 121 |
| Informations in rem on the exchequer side of the court are not criminal proceedings. | 121 |
| A demurrer, and not a motion to quash an information in rem on the exchequer side of the court, is the proper mode of reaching technical or substantial defects. | 121 |
| Under the supreme court rules, general denials or issues are permissible in informations on the exchequer side of the court in cases under the internal revenue act. | 121 1389 |
| The district court has power to discharge upon bail property in custody in cases of seizure under Act June 30, 1864, §§ 48, 50. | 139 |
| FORGERY. | |
| Possession of forged bank notes with intent to utter them as true is not an indictable offense. | 790 |
| Falsely altering a promissory note in a material part, with intent to defraud any person, is forgery. | 752 |
| The words “other writing,” as used in Act March 3, 1823, making it a crime to forge certain writings with intent to defraud the United States, does not cover a forged indorsement on a genuine check drawn by a pension agent upon a depositary of the United States. | 720 |
| Forgery of the notes of a private unchartered bank and of chartered banks is punishable under Act Md. 1799, c. 75, § 1. | 737 |
| The place where forged papers are inclosed and sealed up with a letter and put in the post office is the place where they are uttered, and not the place of their destination. | 790 |
| An indictment for forging a treasury note need not, in terms, give it that name, where a copy is set out. | 223 |
| An indictment for forging a treasury note need not aver that it was made in resemblance of the genuine note. | 223 |
| An indictment at common law for forgery by erasure must this the technical term “forge or counterfeit”. | 419 |
| An indictment charging that defendant, “ostensibly, for the service, but falsely and without authority, caused and procured to be issued from the navy department of the United States” a certain requisition, set forth in the indictment, cannot be supported as an indictment for forgery. | 419 |
| An indictment for the felonious possession of a forged national bank note, which sets out the note, need not aver the purport of the instrument. | 635 |
| An indictment for obtaining money by false pretenses, one of which is stated to be an erasure in an account rendered to defendant, cannot be supported as an indictment for forgery. | 419 |
| FRAUD. | |
| All frauds affecting the public at large, or an indefinite number of persons, who have suffered a common or joint damage by reason of the fraud, are indictable offenses at common law. | 419 |
| An indictment charging fraud should aver the means by which the fraud was effected. | 419 |
| An indictment for fraud must aver all the facts which constitute the fraud. It is not sufficient to aver that an act was fraudulently done, or was done with intent to commit a fraud. | 419 |
| A count describing the deceptive means by which defendant procured the placing of public money in the hands of a navy agent, and also the means by which defendant obtained such money for his own use from such agent, does not charge two separate offenses. | 419 |
| FRAUDULENT CONVEYANCES. | |
| See, also, “Bankruptcy.” | |
| Conveyances executed by a person who is insolvent, or unable to pay his debts, will be held prima facie void in the hands of grantee with knowledge of the facts. | 1352 |
| It is a strong circumstance of fraud that the consideration passed from the grantor to the grantee with a view of covering the property by a conveyance to the grantor's wife. | 1352 |
| GAMING. | |
| The playing at games for money is not an offense except as prescribed by statute. | 698 |
| Bank notes are not money within the meaning of an indictment charging defendant with cheating another of his “money” at cards. | 520 |
| The by-law of Georgetown prescribing a penalty for keeping a public gaming table does not supersede nor repeal Act Md. 1797, c. 110, prescribing a penalty for keeping a faro table in a house occupied by a tavern keeper. | 521 |
| GRAND JURY. | |
| See, also, “Criminal Law” “Indictment and Information.” | |
| The word “qualification,” as used in Act July 20, 1840, refers to the general qualifications, such as age, citizenship, etc., which will exclude the juror from the panel. | 666 |
| The federal court sitting in Ohio has authority, in its discretion, to adopt the mode of impaneling grand juries practiced in the inferior courts of the state. (Act July 20, 1840.). | 725 |
| The provisions of 2 Rev. St. N. Y. 724, §§ 27, 28, prescribing the objections that may be taken to the organization of grand juries, are, by Act July 20, 1840, made applicable to the federal courts. | 9 |
| Witnesses for defendant will not be sent to the grand jury except by consent of the prosecution. | 588 |
| The court, in its discretion, may give or refuse to give an instruction to the grand jury when asked either by the accused or the prosecutor. | 419 |
| The court, in its discretion, may give an additional charge to the grand jury, although they do not ask it. | 419 |
| Exceptions to grand jurors for favor are only cause for challenge before indictment found, not for a plea in abatement. | 572 |
| GRANT. | |
| See, also, “Public Lands.” | |
| One whose claim under a grant has never been presented, and has been abandoned, has no right, under Act 1851, § 13, to intervene in a proceeding to confirm a different grant until after the determination of the proceedings by the confirmation of the claim. | 573 |
| The mention in the act of possession of the length of a certain line as fixing its point of termination is not to be regarded as conclusive merely because at or near that distance from the starting point a marked tree is found which is not identified by any witness as the tree to which measurement was made. | 576 |
| In determining the limits of the tract from the map, regard is to be had to the natural objects there laid down as bounding the tract, rather than to the distance of such objects from other natural objects as shown by the scale. | 721 |
| The order of the governor directing the title to issue to the petitioner is not controlling in the determination of boundaries, when it appears that on the following day a decree of concession was made, accurately defining the rights of the petitioner, and the formal title was issued and accepted by him, declaring its boundaries with unmistakable precision. | 388 1390 |
| A petition appearing in an expediente on behalf of four persons for 32 leagues cannot be considered as preliminary to a grant of 16 leagues to two of such persons. | 41 |
| An expediente not placed among the records until 1855 is not archive testimony, such as is indispensable to the confirmation of an alleged grant. | 41 |
| The court has no jurisdiction in a proceeding to confirm a grant to inquire into any questions of private right between the heirs or devisees of the grantee and the present claimants. | 356 |
| The survey of a claim, made by the surveyor general after the final confirmation of the claim by the supreme court on which a patent has issued, is not invalid because the mandate issued by such court directing further proceedings to be had in the district court was not filed in the latter. | 354 |
| A decree of confirmation must be made to the claimant, or to the legal representatives of the deceased grantee, whoever they may be, and without prejudice to the rights of any one who may be lawfully entitled under him. | 356 |
| After a decree confirming a grant according to described boundaries, and the dismissal of an appeal therefrom, the court has no authority, in determining questions relating to the survey, to assume the invalidity of the original grant. | 356 |
| Claim confirmed, notwithstanding a failure to produce the original grant; its loss being accounted for by the fact that the grantee was killed during the war, and it appearing that the archival evidence was complete and regular in all respects, and that the grantee was in possession from a date long prior to the grant. | 356 |
| Mexican land grant confirmed upon the evidence. | 89, 96, 508, 803, 925, *926, 929 |
| Claim to Mexican land grant rejected upon the evidence. | 539 |
| Description of land granted aided by the disefio held sufficient. | 724 |
| HABEAS CORPUS. | |
| The writ is not grantable as of course, but will only issue upon a sufficient showing; and a refusal to issue the writ is justifiable if the court is satisfied that the petitioner would not be discharged upon a hearing after its return. | 874 |
| Where the officer had jurisdiction of the process, and assumed to take proof upon the issuing of the same, his decision as to its sufficiency is not subject to review. | 1147 |
| The civil courts have no jurisdiction, upon application for writ of habeas corpus, to determine whether a military commission by which the prisoner was tried was legally constituted, and had jurisdiction of the case. | 874 |
| The commander of a military department, even in a locality where martial law is not in force, may arrest citizens for mischievous acts of disloyalty impeding or endangering military operations, and the courts have no authority by writ of habeas corpus to inquire into the necessity of such action. | 874 |
| A state court has no jurisdiction on habeas corpus to discharge a soldier or sailor held under a United States law. | 1147 |
| A person who makes a false and evasive return, though he cannot produce the relator, is in contempt. | 682 |
| After a person has been adjudged in contempt for a false return to a writ directing the production of certain abducted slaves, the proceedings will not be quashed upon the statement of one of the slaves that she was not abducted by, and is not under the control of, defendant, where she is not brought before the court to make the statement. | 686 |
| HIGHWAYS. | |
| On an indictment for obstructing a public highway the legality of the highway must he established by the public records of the court. | 226 |
| HOMICIDE. | |
| A death of a fever caused by a beating while the person was in a weak state of health is murder, where the beating was with malice aforethought; otherwise it is manslaughter. | 762 |
| The law presumes malice from the fact of killing, and any circumstances in mitigation or of excuse or justification must be proved by the prisoner. | 204 |
| Homicide in resisting an arrest substantially illegal will, at most, amount to manslaughter. | 204 |
| If a tenant kill a constable who comes to make an unlawful distress, the jury may, according to the circumstances, find a verdict of manslaughter. | 646 |
| A person may oppose force to force in defense of himself, his family, or property against one who manifestly endeavors by surprise or violence to commit a felony. | 727 |
| No words or gestures, however irritating, will justify the killing, although they may reduce the offense from murder to manslaughter. | 727 |
| The intent to commit a felony must be apparent, the danger must be imminent, and the resistance used necessary to avert the danger. | 727 |
| The dying declarations of deceased, made in contemplation of death, are admissible in evidence. | 19 |
| Declarations of deceased, not made in extremis, or with a settled conviction that he is about to die, are not admissible. | 762 |
| Dying declarations may be given in evidence as to facts, but not as opinions. | 367 |
| Where the body cannot be found, the fact of death may be proved by other means. | 636 |
| Proof that the blows were given by a dangerous weapon, were followed by alarming symptoms, and soon afterwards by death, is sufficient prima facie proof that the blows caused the death. | 727 |
| HUSBAND AND WIFE. | |
| The fact that a married woman employs her husband in the business of using her capital in trade, and supports him out of the profits, will not make the business or the profits the property of the husband. | 1274 |
| A conveyance of property to a married woman in fulfillment of an agreement made in good faith between her and the grantor does not, under the New York laws, entitle her husband to the property, even though labor and services performed by him formed a part of the inducement to the making of the agreement. | 1274 |
| INDIANS. | |
| All Indians born and resident in Oregon are prima facie members of some Oregon tribe, and come within the protection of the statute in relation to the sale of spirituous liquors to Indians. | 741 |
| An Indian born in Minnesota is prima facie not a member of an Oregon tribe, though he may become such by adoption. | 741 |
| The act admitting the state into the Union withdraws all such territory from the federal jurisdiction, except territory of Indians haying treaties with the United States, which provide that without their consent such territory shall not be subjected to state jurisdiction. | 397 1391 |
| Indian territory not protected by such a treaty is subject to state jurisdiction. | 397 |
| The Indian country is within the jurisdiction of the United States, and congress may extend all laws within the constitutional limits of municipal legislation over the same. | 195 |
| The federal courts have jurisdiction, under Act June 30, 1834, of offenses against the laws of the United States committed on Indian reservations in Kansas. | 397 |
| Act June 5, 1850, § 5, making the territory of Oregon Indian country so far as the disposition of spirituous liquors to Indians is concerned, held not repealed by Rev. St. § 5596. | 737 |
| In an indictment under Rev. St. § 2139, for disposing of spirituous liquors to an Indian, it must be alleged that defendant is not an Indian in the Indian country. | 737 |
| Construction of Act Feb. 18, 1873, § 6, abolishing Indian superintendencies. | 741 |
| INDICTMENT' AND INFORMATION. | |
| See, also, “Criminal Law” “Grand Jury” and titles of particular crimes. | |
| When lies. | |
| Misdemeanors may be prosecuted in the federal courts by information. | 391 |
| Finding. | |
| Where a grand jury consists of 15 jurors, a finding by 12 cannot be invalidated by the fact that 1 of the 15 was absent. | 725 |
| Where the record shows that the grand jury found the indictment on their oaths, the intendment and legal effect and presumption is that it was found on proper evidence, with due deliberation, and by the concurrence of 12 of their number. | 725 |
| Irregularities in the summoning of grand jurors do not entitle a party indicted, as matter of law, to avoid the indictment. | 9 |
| Where the accused shows that he has been prejudiced by irregularity or fraud in designating, summoning, and returning the grand jury, he has a remedy by motion to the court for relief. | 9 |
| Form. | |
| The caption or title is no part of the indictment, and may be amended after verdict as a clerical error. | 98 |
| An indictment for murder on the high seas is sufficient although it describe the grand jury as “jurors of the United States”. | 636 |
| In an indictment under Act April 5, 1866, c. 24, § 2, it is not necessary to aver that the offense is not punishable by any law of congress, and is punishable by the state laws; and a conclusion “against the form of the statute” is correct. | 791 |
| A conclusion in the plural, where there is but one prohibitory act, is not ground for motion in arrest of judgment. | 223 |
| Indorsement. | |
| The want of the name of a prosecutor written on the indictment is not a ground of arrest. | 230 |
| The indorsement of the name of a witness by the grand jury on the presentment is prima facie evidence that it was made upon his testimony. | 1224 |
| Description of offense. | |
| An indictment laying the offense in the words of the statute creating it is sufficient, as a general rule. | 699 |
| Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge it in the words of the statute. | 546 |
| An indictment charging an offense in the precise words of the statute creating it need not prefix to the charging words the word “unlawful,” or any other word showing a wrongful intent. | 98 |
| Money lawfully in the hands of an officer of the United States, and for which he is accountable, is money of the United States, and may be so charged in an indictment. | 419 |
| Description of persons. | |
| A person is properly described in an indictment by a given name used in the manner he has selected. | 739 |
| A person is sufficiently described in an indictment as “D. K. Olney Winter”. | 739 |
| Time and place. | |
| An allegation that defendant did the act charged “on or about” a certain day is void for uncertainty. | 737 |
| A charge that the offense was committed on a day certain “and on divers other days” between that day and the finding of the bill by the grand jury will not vitiate an indictment. | 217 |
| Except in cases of treason, the indictment need not state the county in which the offense was committed; it is sufficient if it show that the court had jurisdiction. | 699 |
| An indictment in the circuit court for an offense committed on land should show that it was committed in the district where the court sits. | 755 |
| An indictment in the words of the statute creating an offense held sufficient without the averment of the place, and the averment of place may be rejected as surplusage. | 374 |
| Motion to gnash and demurrer. | |
| An indictment will not be quashed he cause there was no previous presentment or order of the court. | 89 |
| A motion to quash the indictment will not be heard until defendant has been taken. | 19 |
| A motion to quash an indictment may be heard on an agreed statement of facts without putting the defendant to plead the matters alleged as ground for the motion. | 9 |
| The court, as a condition of permitting defendant to withdraw his demurrer after argument, may require him to waive the right to move in arrest of judgment for any matter apparent upon the indictment. | 419 |
| INFORMERS. | |
| A special agent of the government, appointed to investigate a fraud, is not an informer in respect to facts found in the ordinary and regular discharge of his duty. | 301 |
| A deputy collector of internal revenue, who, happening to see improperly branded whisky unloading at a warehouse, gave information which led to its forfeiture, held entitled to the informer's share. | 53 |
| A pardon remitting a penalty under the revenue law after judgment therefor operates to remit the moiety adjudged to the informer. | 82 |
| The regulation of September 2, 1867, charging informers with a proportionate share of the costs of the proceedings, is valid; the secretary's power to issue regulations on the subject not having been previously exhausted. | 235 |
| The share of an informer in the proceeds of forfeited spirits is fixed by the law in force at the time of payment of the proceeds into the registry, and the submission of the proofs as to the informer, and not by that subsequently adopted. | 242 |
| The right of the informer becomes fixed on the receipt of the proceeds of the forfeiture by the marshal. | 276 |
| Where a decree entered by consent condemning the goods is afterwards vacated, and the claimant allowed to defend, and a final decree is subsequently rendered, the share of the informer is to he determined by the law in force at the time of such final decree. | 275 1392 |
| Proceedings for a forfeiture under the internal revenue laws are governed by the practice of the courts of common law, and the court has no power to open a judgment after the expiration of the term at which it was entered. | 280 |
| INSOLVENCY. | |
| See, also, “Bankruptcy.” | |
| State insolvent laws are valid as to subsequent contracts between citizens or inhabitants of the state. The fact that the creditor is an alien is not material, if residing or domiciled in the state when the contract was made and the discharge granted. | 1269 |
| The discharge of a citizen from his debts under a state insolvent law will not discharge a contract which was made and to be executed in a foreign country. | 1062 |
| INSPECTION. | |
| See, also, “Deposition” “Discovery.” | |
| A proceeding in rem is not within Act Sept. 24, 1789, which authorizes an order to produce books and papers on the trial of actions at law. | 244 |
| The ex parte affidavit of a party interested is competent evidence on a motion for an order to produce books and papers. (Act Sept. 24, 1789.). | 244 |
| INSURANCE. | |
| A resolution, passed by the directors, releasing the stockholders from unpaid balances upon the stock, in accordance with which the certificates of stock were stamped “Nonassessable,” is not binding upon parties who insured in the company without knowledge of its existence | 839, 844 |
| In Indiana it Is not essential to the validity of the bond of the agent of a foreign insurance company that he should have previously filed in the circuit court the papers required by the state statute. | 816 |
| A concealment of facts material to the risk within the knowledge of the insured, and which the insurer is not bound to know, vitiates the policy. | 867 |
| A condition in an accident policy requiring immediate notice of the nature and extent of the accident and injury is waived where, on receiving proof of the injury, the insurer refused to pay on other grounds than the omission to give such notice. | 824 |
| INTEREST. | |
| See, also, “Usury.” | |
| The government is entitled to interest on bonds given in liquidation of an account against an officer. | 803 |
| Where an agent sends goods to his principal for sale, interest is due on the proceeds from the time when the principal first claimed a lien or set-off upon them for a balance due from the agent up to the time of a judgment therefor. | 1293 |
| INTERNAL REVENUE. | |
| See, also, “Forfeiture” “Informers.” | |
| Assessments and collections. | |
| In an action on a collector's bond on account of his breach of duty in allowing spirits to be removed from a warehouse without the furnishing of proper bonds, it is no defense that he did not act corruptly, but only negligently. | 103 |
| Rev. St. § 860, is modified and partially repealed by Act June 22, 1874, § 5, in relation to the production of books and papers. | 149 |
| Claimants and their counsel have the right to be present at the examination of their books and papers. | 149 |
| In an order for the production of books' and papers of a distiller or rectifier, the same need not be more specifically described than as those used and kept in his business as distiller or rectifier between certain dates named. | 149 |
| Special taxes. | |
| An unincorporated social or literary club, which sells checks to its members, which it takes in exchange for glasses of beer, is a dealer, and liable to taxation under Act 1875, c. 36, § 18. | 744 |
| Sales of liquors belonging to a social club, by the janitor thereof to the individual members, the money being deposited in the treasury of the club, makes the janitor a retail liquor dealer, and liable to indictment, where the special tax is not paid. | 762 |
| The payment of the tax prescribed in Act July 20, 1868, § 59, is not a condition precedent to commencing business, and the penalty is not incurred until after assessment, demand, and refusal. | 48 |
| Revenue officers are not required to give notice of the expiration of a manufacturer's license. | 224 |
| For failure to take out a license to refine petroleum, both a criminal prosecution and an action qui tarn is authorized, and the institution of one is no bar to the other. | 217 |
| Where wool is bought and spun into yarn, and the latter wove into fabrics, Held, that the yarn was a separate manufacture, and subject to an assessment of 5 per cent. (Act June 30, 1864.). | 414 |
| Omissions of a wholesale dealer to stamp or mark packages containing more than five gallons are not within the penalty prescribed in section 96. (Act July 20, 1868.). | 51 |
| Section 96, Act July 20, 1868, is not applicable to offenses under section 47, which prescribes a punishment in its own terms for an infraction of its requirements. | 51 |
| Distilled spirits. | |
| The regulations of April 22, 1869, were authorized by the act of July 20, 1868, § 2. | 63 |
| Construction of acts of March 3, 1791, May 8, 1792, Feb. 18, 1793, and April 6, 1802, in relation to the duties on domestic distilled spirits. | 1 |
| Section 57, Act July 20, 1868, applies only to distilled spirits on hand when such act was passed. | 63 |
| A rectifier of spirits distilled from domestic materials is not a distiller of spirituous liquors, within the meaning of Act July 24, 1813. | 33 |
| A manufacturer of vinegar, who, in the process, produces a fluid containing from 5 to 7 per cent, of spirits, with machinery which is riot capable of producing a higher per cent., is not bound to take out a distiller's license. | 292 |
| A person is not liable for the tax unless he has a direct interest in the business. An interest as lessor, or as a creditor who expected to collect his claim if the business proved successful, is not sufficient. | 363 |
| Knowledge by defendant that illicit spirits were being manufactured on the premises does not render him liable for the tax. | 363 |
| The word “proprietor” (Rev. St, § 3251) is used in the sense of an owner who has the exclusive right to and control over the premises, and includes a lessee. | 363 |
| The delivery of the bond, by one of the firm of obligors, for the purpose of obtaining a permit for the removal of the spirits, with the declaration that it is all right, is a ratification of the bond. | 230 1393 |
| A transportation bond, executed in blank as to the quantity of spirits and amount secured, is not binding unless ratified after the blanks are filled. | 230 |
| The surety on a transportation bond executed in blank as to the amount is not bound thereby, unless he ratified the same after the blanks were filled. | 230 |
| Where a bond is executed in the name of the firm by a manager of the business who was so in the habit of using the firm name authority to sign by a written instrument need not be shown. | 230 |
| A ratification for a firm may be made by one member. | 230 |
| The knowledge or intent of the owner of a conveyance used in transporting goods subject to a tax, that they are being removed contrary to law, is not necessary to subject the conveyance to forfeiture under Act 1866, § 14. | 294 |
| A decree by default against spirits seized while being removed on a truck is not conclusive against the owner of the truck and horses where he interposes a defense to the libel that the spirits were being removed with intent to defraud the revenue. | 294 |
| A distiller is justified in relying upon the act of the assessor in passing upon the bond given for excise duty (Act July 20, 1868, § 7), and is not liable for the penalty because the preliminaries have not been complied with. | 48 |
| The failure or omission to keep books showing the facts prescribed by the statute (Act July 20, 1868, § 19) to render a distiller liable must be shown to be with intent to defraud. | 48 |
| A distiller does not “omit, neglect, or refuse to do, or cause to be done” anything which the law does not require him, but some other person, to do. (Act July 20, 1868, § 96.). | 63 |
| A removal of brandy from a distillery without having cut or burned on the barrels the name of the distiller, the name of the district, or serial numbers, is not illegal, if all other requirements of the statute have been compiled with. | 63 |
| Though a distillery warehouse is under the lock of the inspector, as provided by Act July 13, 1866, §§ 27–29, the spirits are still in the possession of the owner, within Act July 13, 1866, § 9. | 67 |
| The removal of spirits by a distiller before they have been officially inspected, gauged, and proved is a cause of forfeiture, otherwise as to a removal before payment of duties. | 115 |
| The failure of the inspector to mark on the barrels the quantity in proof as required by Act June 30, 1864, § 59, is not a cause of forfeiture. | 115 |
| A forfeiture under Act June 30, 1864, § 68, and the penalty of $500 therein prescribed, are independent of any other penalties named, and are cumulative. | 115 |
| Spirits are not liable to seizure because the barrels were emptied before the stamps were obliterated, where a clerk was in tie act of obliterating them when they were seized. | 33 |
| A refusal or neglect to comply with any of the requirements of section 57 works a forfeiture under section 68. (Act June 30, 1864.). | 115 |
| Spirits manufactured by the distiller, and still owned by him, are liable to forefeiture wherever they may be found in the United States. | 115 |
| Goods removed from a bonded warehouse by consent of the collector, obtained by fraud, are subject to forfeiture. | 297 |
| Tools, implements, and other personal property found in an illicit distillery are not subject to forfeiture under Act July 13, 1866, § 9, unless it appear that they were used, or intended to be used, in the illicit manufacture, or in some way connected with it. | 72 |
| A sale of a distillery for the sum due to the United States will extinguish the debt, though it is in numbered by valid liens to its full value, and the distiller's bond is discharged thereby. | 216 |
| The lien given by Act July 13, 1866, § 32, for taxes on a distillery, is valid as against an innocent purchaser for value of the premises. | 232 |
| A forfeiture for illicit distilling extends to the interest of a mortgagee, though he be ignorant of the fraud. | 242 |
| A factor's lien is not protected against forfeiture unless it appear that his demand requires for his protection an enforcement of his lien against the specific property seized. | 129 |
| Only the spirits owned by the distiller, rectifier, or wholesale liquor dealer, or those in which he has an interest as owner at the time of the discovery of his offense, are forfeited by section 96. (Act July 20, 1868.). | 313 |
| The forfeiture declared by Act June 30, 1864, § 68, extends only to specific property belonging to the distiller, and bona fide purchasers from him are protected. | 121 |
| A bona fide purchaser or lienor for value prior to seizure is protected. | 129, 131 |
| Where spirits fraudulently withdrawn from a warehouse are innocently mixed with others belonging to the claimants, so that they cannot be distinguished, the United States are entitled to a forfeiture of a fair proportion of the mixture, if the spirits would have been subject to forfeiture had they not been so mixed. | 297 |
| Where the spirits were mixed after claimants had knowledge that they were fraudulently withdrawn from a bonded warehouse, or were fraudulently mixed, to destroy their identity, the entire quantity is for to defraud. | 48 |
| Fermented liquors. | |
| The criminal liability of a brewer for selling beer and allowing its removal from his brewery without affixing the proper stamps is not dependent on his actual intent to defraud have been complied with. | 63 |
| The removal of spirits by a distiller before they have been officially inspected, gauged, and proved is a cause of forfeiture, otherwise as to a removal before payment fraud. | 201 |
| Under Act July 1866, § 9, it is a necessary element of the fraud specified that there should be an intent to defraud by evading the payment of the tax or duty imposed by law. | 295 |
| The forfeiture for an illicit sale of beer, or fraudulent intent, applies to all beer found in claimant's possession, and the raw materials, fixtures, and appliances of the brewery. | 295 |
| Tobacco and cigars. | |
| The revenue laws imposing taxes on manufactured tobacco are in force in the Indian country. | 195 |
| The treaty of July 19, 1866, art. 10, with the Cherokee Nation, so far as repugnant to Act July 20, 1868, imposing taxes on manufactured tobacco, is thereby abrogated. | 195 |
| The term “granulated tobacco” (Rev. St. § 3368) is not synonymous with “snuff,” but refers only to chewing and smoking tobacco. 1144 A penalty of $300 is provided for every violation of Act March 3, 1865, § 91. | 80 |
| A partner is civilly liable for violations of the revenue laws by his co-partners, whether he knew of or consented to such violations or of duties. | 115 |
| The failure of the inspector to mark on the barrels the quantity in proof as required by Act June 30, 1864, § 59, is not a cause of forfeiture. | 115 |
| A forfeiture under Act June 30, 1864, § 68, and the penalty of $500 therein prescribed, are independent of any other penalties named and are cumulative not sureties on the bond of a manufacturer of tobacco (Act March 3. 1863 § 34) does not cease upon the expiration or his hence as such manufacturer. | 224 1394 |
| Where the charge is an attempt to defraud, acts constituting the attempt should be specified. | 328 |
| An indictment for failing to efface, etc., marks and brands at the time of emptying the cask or package, need not aver a criminal intent. (Rev. St § 3224.). | 328 |
| A count in an indictment for the removal of distilled spirits from the distillery to a place other than the distillery warehouse held sufficient. | 328 |
| —Evidence. | |
| The fact that one or more of the sureties on a bond were worthless at the time of its execution, to the knowledge of the Principal, is material evidence on the question of the fraudulent intention of the parties. | 115 |
| Evidence of false returns of spirits made and materials used by claimants, through each of several preceding months, is admissible to show an intent to defraud as to goods seized on October 30th. (Act July 13, 1866, § 9.). | 70 |
| The fact that nearly all of the same property had been seized a month previously as forfeited for like fraudulent practices, and that a suit to enforce such forfeiture was pending and at issue is immaterial. | 70 |
| INTERNATIONAL LAW. | |
| Where, though no right of search exists, a seizure is made, and it turns out that the vessel has no right to the flag under which she was sailing, the nation to whom such flag belongs has no ground of complaint. | 781 |
| INTOXICATING LIQUORS | |
| A selling by a servant is a selling by the master. | 385 |
| The day of selling spirituous liquors is immaterial if within 12 months before filing the information, as all the acts of selling constitute but one offense. | 1226 |
| JAIL AND JAILER. | |
| See, also “Arrest” “Criminal Law” “Execution.” | |
| The remedy given by the act of 1798, authorizing the secretary of the treasury to discharge imprisoned debtors, does not prevent a remedy under the act of 1867. | 43 |
| Every person not committed for treason or felony is entitled to the benefit of the prison bounds upon giving security. | 742 1395 |
| JUDGMENT. | |
| Operation and effect. | |
| A judgment in favor of the maker of a mote in replevin against a banker who held the same for collection, brought upon the ground that the note was obtained by fraud, will not bar an action by the owner, an indorsee for value thereof before maturity, from obtaining an action thereon against the maker. | 1342 |
| The conclusiveness of an adjudication by a state court as to the distribution of a certain fund under an assignment for creditors is not affected by the fact that it involves a decision as to the legal rights of the parties as affected by the United States bankruptcy laws. | 1025 |
| Where a former judgment is relied on as a defense in admiralty, it should appear by the record that the precise question or title set up was passed upon in a former suit, not merely that it might have been. | 1193 |
| Relief against: Opening: Vacating. | |
| To set aside an office judgment, the court will not permit defendant to plead specially matter which may be given in evidence upon the general issue. | 1306 |
| Assignment. | |
| Where a judgment is assigned as security for a less amount than its face, the debts will be paid out of the first proceeds. | 1100 |
| A person purchasing property on judicial sale under a judgment assigned as security will be compelled to pay the money to the assignee. | 1100 |
| Enforcement and revival. | |
| On a sci. fa. to revive a judgment, defendant cannot avail himself of matters of defense which occurred previous to the original judgment. | 92 |
| Under a plea of payment to a sci. fa. issued to revive a judgment, defendant is entitled to a credit for real estate conveyed to plaintiff. | 92 |
| Satisfaction and discharge. | |
| A rule adopted requiring the clerk and marshal to select jurors from the state at large, and draw the names from the box to be inserted in the venire. | 761 |
| The jury is to be composed of the first 12 men whose names remain upon the pan-el after the challenges are exhausted. | 580 |
| If a juror is wrongly named on the panel, he cannot be sworn. | 699 |
| On separate trials on a joint indictment it is no cause of challenge that a juror was sworn on the first trial, and found a verdict of guilty. | 699 |
| It is no objection to a juror that he has been one of the jury in another cause against the same defendant for a different offense. | 419 |
| After a juror is sworn, he cannot be challenged, except for a cause subsequently arising; and the court cannot discharge him without consent of the party, although he should state to the court matters which would be proper evidence on a challenge for favor. | 419 |
| It is a good cause of challenge that the juror has conscientious scruples about finding a verdict which may lead to capital punishment. | 699 |
| It is a good cause of challenge in a capital case that the juror is a Quaker, and has conscientious scruples as to the lawfulness of taking away human life for any offense. | 404 |
| It is a good cause for challenge if a juror does not stand indifferent on account of bias, prejudice, or having formed or expressed an opinion on the prisoner's guilt or innocence. | 699 |
| Practice stated as to the calling of jurors, and challenging, and trying of challenges. | 419 |
| The United States may challenge a juror peremptorily until the panel is exhausted, after which they can only challenge for cause. | 699 |
| A challenge for favor, without cause assigned, will not be submitted to triors. | 699 |
| On trial of an indictment for counterfeiting a bank note under the Virginia laws defendant is entitled to a peremptory challenge. | 852 |
| A case of horse stealing is simple larceny, and peremptory challenges will not be allowed. | 200 |
| In all cases not capital the court may discharge the jury when it is apparent that they cannot agree, and it may then order another jury to be summoned. | 771 |
| LANDLORD AND TENANT. | |
| An unrecorded lease for 10 years is good for 7 years under Act Md. 1766, c. 14. | 1044 |
| A distress for rent is not lawful unless there was an express contract for a certain rent. | 646 |
| LARCENY. | |
| Stealing wood in collusion with the owner's slave is larceny. | 388 |
| It is not a larceny to steal rails fixed into posts inserted in the ground, if the severance of the rails from the posts, and the taking and carrying away, were one continued act. | 386 |
| A person who steals goods in Maryland, and brings them into the District of Columbia, may be convicted and punished in the latter place. | 200 |
| Upon an indictment for stealing a bank check it is not necessary to produce the check itself in order to admit parol evidence that it was presented at the bank. | 721 |
| LIENS. | |
| See, also, “Admiralty” “Bankruptcy” “Maritime Liens” “Shipping.” | |
| LIMITATION OF ACTIONS. | |
| See, also, “Criminal Law” “Equity” “Maritime Liens.” | |
| The statute of limitations does not run against the government, nor is it chargeable with delays, so as to raise a presumption of payment | 674, 674 1396 |
| Statutes of limitation will be construed to operate prospectively only, unless the contrary intention clearly appears. | 1111 |
| The limitation prescribed by Act March 2, 1790, § 89, continues to apply to suits brought for penalties under the embargo act of 1808. | 770 |
| In cases of fraud, where it appears that the fraud was committed more than the statute period before bringing the suit, it is not necessary to state in the bill the facts which take the case out of the statute. | 949 |
| LITERARY PROPERTY. | |
| The writer of a letter has the property therein, and may control its use, and is entitled to an injuction to restrain an improper use therefore by the addressee. | 12 |
| LOST INSTRUMENTS. | |
| Sufficiency of evidence to prove the loss of a promissory note to permit evidence of its contents to be given. | 1311 |
| MANDAMUS. | |
| Mandamus will lie to compel the city of Washington, D. C., to pay to the county treasure one-half the expense of erecting a bridge over Rock creek. (Act July 1, 1812, § 11.). | 414 |
| Act March 3, 1873, confers original jurisdiction on the proper federal circuit court in cases of mandamus to compel the Union Pacific Railroad Company to operate its road according to law. | 341 |
| The circuit court of the district of Iowa has jurisdiction in such case, if any part of the road is in the district of Iowa; and under Act June 20, 1874, process may be served upon the president or general superintendent of the company found in the district. | 343 |
| Mandamus cannot be issued by the circuit court of the United States under, the Acts of 1789, or June 1, 1872, as an original proceeding. | 341 |
| A mandamus will lie to enforce judgments against municipal corporations, and, when issued by the federal courts, the state courts cannot lawfully interfere with their execution. | 213 |
| In case of the evasion or disobedience of such writ, the federal court may appoint a marshal to execute it. | 213 |
| State statutes relating to pleadings and practice in actions of mandamus are not made applicable by Act June 1, 1872, to the ancillary jurisdiction of the federal circuit court. | 341 |
| Amendments in form and in substance may be allowed in mandamus proceedings in any stage thereof, where justice will be thereby promoted. | 345 |
| MARITIME LIENS. | |
| See, also, “Admiralty” “Affreightment”; “Bottomry and Respondentia”; “Charter Parties”; “Salvage”; “Seamen”; “Shipping”; | |
| The lien of seamen's wages and of bottomry bonds exists in all cases as much against the government, becoming proprietor by way of purchase or forfeiture or otherwise, as against private persons. | 601 |
| A lien for supplies in a foreign port held lost by two years' delay, where the vessel had since made several voyages, and had been sold at public auction to a bona fide purchaser without notice. | 854 |
| Act Ohio Feb. 26, 1840, confers no lien in favor of the persons therein mentioned, and such persons are not entitled to payment out of the surplus proceeds in the registry of the admiralty court. | 1138 |
| Credit must be given to the vessel to entitle a material mad to a lien under the New York statute for materials or labor used in her construction. | 1061 |
| In the case of a tug used about New York harbor the lien of the material man for supplies under the New York statute is not lost by her secret departure from the state out of the line of her business. | 1092 |
| MARRIAGE. | |
| The admissions and acknowledgments of the parties to an alleged marriage held not sufficient to establish the same when only made in the presence of each other, and not in the presence of a third person. | 1058 |
| MARSHALS. | |
| Fees and expenses of marshal as keeper of alcohol seized for violation of internal revenue laws. | 137 |
| A marshal who, in taking the census, advances money to pay the expenses, after repeated attempts to obtain it from the proper department, may retain the amount thus paid out of the public money in his hands. | 37 |
| An action will not lie upon the official bond of the marshal of the District of Columbia for not returning an execution, unless he has been required by a rule of court to return it, and has failed to do so. | 665 |
| The sureties of the marshal of the District of Columbia are liable for advances made by the secretary of the treasury to him. | 665 |
| The marshal of the District of Columbia and his sureties are liable to account for all common-law fines and forfeitures received, whether on execution or otherwise. | 665 |
| Such marshal is not liable upon his bond for executions not returned, or for the escape of persons not returned, or for the escape of persons taken and in his custody on ca. sa. for fines, etc., whether prayed I commitment in execution or not. | 665 |
| MINISTER. | |
| In a suit by the United States against a minister to a foreign government to recover the difference between the amount of a private claim collected by him and the sum paid over, where the defense was that the difference had been paid to persons in Brazil with the consent of the state department, held, that defendant would not be required to disclose the names of such persons. | 506 |
| MORTGAGES. | |
| See, also, “Chattel Mortgages.” | |
| The mortgagor is, in equity, considered as the owner the property until foreclosure or sale. | 1308 |
| When a debt secured by a mortgage has been discharged by the mortgagor, the morgagee and his assigns will be required in equity to make a reconveyance. | 828 |
| The mortgagor, in equity, is entitled to maintain a bill to redeem upon an offer to redeem, and proving himself able and ready to discharge, the incumbrance as security against which the mortgage was given, and procure releases thereof, and a claims on account thereof. | 826 1397 |
| MUNICIPAL CORPORATIONS. | |
| A by-law prohibiting the keeping of a slaughterhouse within the limits of a town will apply to a subsequent addition to the town. | 1226 |
| An information, on a by-law may be amended by stating that the penalty wealth to the town instead of the commonwealth. | 1225 |
| No information or indictment will lie upon a by-law of the corporation of Alexandra. | 1224 |
| The judgment will be arrested where an information upon a by-law states that the penalty accrued to the commonwealth, when, by charter, it accrued to the town. | 1224 |
| NAVIGABLE WATERS. | |
| A wire cable laid across a navigable river as a guy on which to run a ferryboat is not an unlawful obstruction to navigation unless it actually prevents or renders hazardous the navigation of the river by others. | 958 |
| NAVY | |
| See “Army and Navy.” | |
| NEGOTIABLE INSTRUMENTS. | |
| See “Bills, Notes, and Checks”; “Bills of Lading.“ | |
| NEUTRALITY LAWS. | |
| Evidence that defendant admitted that a certain person was associated with him in the plan to invade a foreign territory is sufficient to render admissible statements of such person to show the extent of the plan, and whether it was legal. | 771 |
| NEW TRIAL. | |
| See, also, “Criminal Law.” | |
| A new trial will not be granted on the ground of surprise because the case was tried by other counsel than the one who was originally employed and prepared the case, where it does not appear that the result would have been different. | 984 |
| Where the motion is founded on fact not within the knowledge of the judge, and not appearing on his minutes, it must be verified by affidavit, unless the opposite party waive such requirement. | 1289 |
| A motion founded upon alleged newly-discovered evidence or on the charge of misconduct by the opposite party or the jury in respect to the trial, is such a motion. | 1289 |
| Affidavits of the witnesses to be examined is not a compliance with rule 22, but the allegation of newly-discovered evidence must be verified by the oath of the party or his attorney. | 1289 |
| Such affidavits are not, without consent, admissible at the final hearing of the motion. | 1289 |
| Probable cause for the motion must be shown before the court will give notice to the other side or stay the entry of judgment. | 1289 |
| On the final hearing of a motion not founded on facts within the knowledge of the judge, testimony may be taken in open court, or by depositions, or by interrogatories, or by commissioner appointed by the court on consent of the parties. | 1289 |
| No affidavit of merits is required where the motion is property addressed to the minutes of the judge. | 1289 |
| OATH. | |
| See, also, “Perjury.” | |
| A judge having a right to administer oaths may administer them in any county in the state. | 1236 |
| OBSTRUCTING JUSTICE. | |
| A deputy marshal is an officer of the United States authorized to serve process. | 193 |
| Willful resistance of a warrant of attachment against a vessel, valid on its face, is indictable under Act April 30, 1790, § 22, though the libel for forfeiture of the vessel, on which it is founded, is not sufficient to authorize it issue. | 193 |
| Sufficiency of indictment for willfully resisting the execution of process under Act April 30, 1790, § 22. | 193 |
| OFFICE AND OFFICER. | |
| The rule in regard to the binding force of acts of a de facto public officer is restricted to those who hold office under some degree of notoriety, or are in the exercise of continuous official acts, or are in possession of a place which has the character of a public office. | 862 |
| Under Acts March 3, 1839, and Aug. 26, 1842, an officer with a fixed salary is not entitled to any additional compensation for extra services, unless it is provided for by law or by the regulation of an officer of the government authorized by law to make it. | 586 |
| Where an officer refuses to pay over the balance found due upon the adjustment of his account he forfeits the commissions due on such unsettled account only. (Act March 3, 1797.). | 525 |
| Federal officers holding the public money as money of the United States are only accountable to the United States. | 1105 |
| Where the government employs a person to perform labor neglected by a public officer pertaining to his duties, his sureties are liable only for a reasonable compensation for such labor. | 397 |
| The sureties on the old bond are not responsible for moneys received by the officer after he has given the new bond required by Act 1817, c. 197. | 399 |
| A civil officer has the right at any time to resign his office without the consent of the president, and his surety will not be bound beyond the time if the resignation is received at the proper department, and is to take effect. | 792 |
| Sureties on a bond for the faithful execution of the agency of an officer in paying invalid pensioners are not answerable for his defaults in not paying navy and privateer pensions. | 588 |
| In a suit against the sureties on an official bond the admission of evidence of the good character and conduct of the officer, since deceased, is erroneous. | 751 |
| PARTIES. | |
| Suit on a joint and several bond may be brought against the executors of a deceased obligor, together with the surviving obligors, without showing the insolvency of the survivors. | 203 |
| In a suit by one or more heirs to recover assets, another heir and distributee is a proper party, but is not indispensable whenever the court can proceed and do justice to the parties before it without injury to the absent person. | 949 |
| Persons against whom no relief is prayed, and whose interests cannot be injuriously affected by the suit, need not be joined as parties. | 949 1398 |
| The legal owner of land, which he holds in trust for another as security for advances made by him on account of the purchase for the latter, is a necessary party to a bill brought by the latter in respect to a claim arising upon such land. | 826 |
| An insolvent or bankrupt, discharged from the particular contract on which relief is sought, need not be made a party to the suit, as there can be no decree against him. | 1062 |
| On a bill to recover a debt against the estate of a deceased partner, the other partners are proper and necessary parties, and cannot be dispensed with, when out of the jurisdiction, where the case involves their important rights. | 1293 |
| PARTITION. | |
| The right to demand partition is ex debito justice if complaint can show a plain legal title. | 1220 |
| On a bill for partition a court of equity may examine questions of alleged fraud. | 1220 |
| PARTNERSHIP. | |
| See, also, “Bankruptcy.” | |
| Where one partner publicly avows all the partners, so that they become and are known as such, and credit is obtained thereby, it is no longer a secret partnership, whether the firm be carried on in the name of one partner only or otherwise. | 811 |
| Where a partnership is carried on in the name of one partner, notes indorsed by him are not binding on the firm unless the indorsements were made for the benefit of the firm. | 811 |
| A primossory note given by the active partner, in whose name the business was carried on, to the silent partner, for the amount of capital contributed by him, is the separate note of the active partner. | 1339 |
| Secret restrictions upon the rights of partners do not affect those persons who deal with the firm in ignorance of them. | 811 |
| A partner can bind the firm only for objects within the scope of its business. | 811 |
| A bill signed by one partner alone, where he has authority to sign for all, will, in equity, be enforced against all the partners in favor, of the payee of the bill, who has trusted the money on the faith of the joint credit. | 1067 |
| A judgment against one of the partners will authorize the sheriff or marshal to levy on the right of the judgment debtor in the goods of the firm. | 672 |
| But the debts of the partnership must be first paid before the partnership property can be applied in payment of the individual debts of either partner. | 672 |
| The officer, where necessary, may take possession of the entire property, and sell the individual interest of the partner, and the purchaser will become a substituted partner. | 672 |
| Equity will enforce against executors of a deceased partner or joint contractor payment of a bill of exchange, where the survivors are insolvent. | 1067 |
| A bill to charge the executors of a deceased partner with a partnership debt must expressly allege the insolvency of the surviving partner. | 1062 |
| On a bill in equity to obtain satisfaction of a joint debt out of the estate of a deceased partner on account of the insolvency of the survivors, no decree need be had against the survivors. | 1067 |
| PATENTS. | |
| The commissioner of patents. | |
| A decision of the commissioner on the question of abandonment is not final, but may be reviewed in a suit brought on a patent subsequently granted. (Act July 8, 1870, § 35.). | 819 |
| Patentability. | |
| Where a new combination of old devices results in a machine capable of producing an article of a new and useful character, it is patentable. | 1327 |
| The degree of utility is not material. If the invention be useful in any degree, and not absolutely worthless, the patent will be sustained. | 956 |
| Prior public use or sale. | |
| The use of an invention for mere competitive examination, experiment, and test is not a public use. | 819 |
| Abandonment: Laches. | |
| Eight years' delay to file a new application after the original application was withdrawn, and the balance of the fee refunded, held an abandonment. | 819 |
| Application and issue: Interference. | |
| When all the conditions exist as prescribed by Act 1836, § 6, the commissioner is bound prima facie to issue a patent. But it is his duty to decide whether the invention is new, and the proper subject of a patent. | 1327 |
| Construction and operation. | |
| In the case of an improvement, the proofs or instrumentality by which the result is attained need not be given in the summary. | 869 |
| The claim must be for something so described in the specifications that any person of ordinary mechanical skill in the art covered by the patent can, from the specifications, make a mechanism which will contain the claim. | 1252 |
| Where the patent is for an improvement, the specifications need not set forth the detail of the old machinery. | 869 |
| The words “as herein described” and “as herein set forth” refer to the specifications, and may, in their proper construction, embrace elements of a combination not specifically named in the claim. | 956 |
| By claiming particular things in a combination as new, the patentee does not relinquish his right to the entire combination. | 869 |
| Reissue: Disclaimer. | |
| A reissue cannot include anything which was not in the original specifications or drawings. | 1252 |
| New matter cannot be introduced in a reissue, nor can there be an enlargement growing out of the subsequent advance of the art. | 807 |
| Assignment. | |
| An assignment of a patent, though not recorded, vests title in the assignee until due entry or claim by the party entitled to take advantage of the breach of condition as to recording. | 1003 |
| The extent to which assignees of a patent may enjoy a renewed patent is to be determined solely by the stipulations of the assignment. | 1007 |
| In an action by the assignee, defendant cannot set up the fact that the assignment was not recorded, if he had actual or constructive notice of it when the infringement was committed. | 869 |
| Licenses. | |
| A compromise agreement by two patentees for the mutual use of their respective patents will not estop either his assignees or licensees from denying the validity of the other's patent. | 1007 1399 |
| Infringement—Remedy generally. | |
| A bill for a discovery and an account of profits will be maintained, although the patent expired before the bill was filed. | 1111 |
| The general rule that a bill in equity will not be maintained where a party has a remedy by an action at law is not applicable to patent cases where the bill prays for a discovery and account of profits. | 1111 |
| Where there are no profits, and the limit of the injury is necessarily the value of the license fee, a bill in equity will not lie for an account, as the patentee has an adequate remedy at law. | 1107 |
| Where a patent is for an improvement in the mode of operating brakes for railroad cars, an action of law furnishes a full, complete, and adequate remedy, and a suit for an account cannot be maintained. | 1107 |
| A general allegation of profits accrued will not sustain a bill for an account, and where, from the nature of the invention alleged, it is apparent that there cannot possibly be any profits of a character to justify charging defendant as trustee, a demurrer will be sustained. | 1107 |
| —Preliminary injunction. | |
| A verdict in another circuit as to the validity of the patent will be followed on a motion for preliminary injunction. | 1007 |
| Defendants will be restrained from using an article which has been decided to be an infringement of plaintiff's patent in suits against parties supplied with the same by defendants, who assumed and conducted their defense | 806, 806 |
| Where an injunction restraining the use of a patent hotel enunciator would compel defendant to close his hotel business, an injunction was denied on defendant giving bonds. | 810 |
| —Procedure. | |
| The owner of a part interest in a patent right cannot alone sue for its infringement. | 869 |
| An averment in the declaration that a patent under the seal of the United States in due form of law was issued is a sufficient declaration to show the validity of the patent. | 1003 |
| Sufficiency of averment of extension of patent as against a general demurrer. | 1003 |
| An averment that the patent was renewed on the application of the administrator of the patentee, and that he assigned his right to the plaintiff, and that the assignment is duly recorded, is a sufficient averment of title as against a general demurrer. | 1003 |
| An averment that disclaimers were duly and legally executed in writing, and accepted by the commissioner, is sufficient to enable plaintiff to give evidence of their execution, as required by statute. | 1003 |
| A feigned issue will not be awarded unless the court have doubts as to the identity of the two machines. | 991 |
| —Evidence. | |
| The use by defendant of an infringing device estops him from denying the utility of plaintiff's invention. | 956 |
| The opinion of an expert that two machines are essentially different in mechanical structure and mode of operation, when the particulars of difference are not pointed out, will not control where the machines appear to be practically identical. | 810 |
| —Injunction and its violation. | |
| An injunction will not be granted after the expiration of the term for which the patent issued. | 1107 |
| Where an injunction has issued after the patent has been sustained on an issue out of chancery, defendant cannot excuse himself from a violation by an allegation of paramount right under a purchase of prior patents covering plaintiff's device. | 871 |
| Various particular inventions and patents. | |
| Brick machine. Invention of improvement in, held patentable. | 1327 |
| Distilling tubs. No. 81,115 (reissued No. 3,612), for improvement in tubs for distilling essential oils, construed and limited, and held not infringed. | 1035 |
| Planing machine. Woodworth's patent of December 27, 1828, held valid and infringed. | 991, 1001, 1007 |
| Steam boilers. Nos. 108,055, 114,711, and reissue No. 4,134, for improvement in compositions for covering, held infringed. | 809 |
| Steam gauge. Reissue No. 4,775 (original No. 101, 583), for improvement, construed, held not infringed. | 822 |
| Trunks. Vogler's patent for a removably hinged tray held infringed by Plumer's patent. | 1252 |
| PAYMENT. | |
| See, also, “Account” | |
| No presumption of payment from the lapse of time can be raised against the government. | 674, 674 |
| An order payable out of a particular fund, and not negotiable, is not payment of a preceding debt. | 1228 |
| In case of payments by a debtor to creditor, the debtor has a right to direct the application of them, and, if he does not, the creditor may apply them as he pleases. | 399 |
| In case of payments made by an administrator of an insolvent estate, all such payments must be deemed to be made on general account, and pro rata towards the extinguishments of all debts due to the creditor. | 399 |
| The officers of the treasury department have not the right to make application of payments against the will of the debtor or of his administrator. | 399 |
| In cases of running accounts, where debits and credits are made at different times, the payments are to be deemed as made towards items antecedently due in the order of time in which they stand in the account. | 399 |
| The case of the United States furnishes no exception to such rule. | 399 |
| A person entitled to recover money paid under a mistake of fact must give prompt notice of the discovery of the mistake to the person to whom the money was paid. | 333 |
| The person to whom the money is paid is discharged from liability where he sustains damage in the loss of his remedy over against another, through the neglect to give notice of the discovery of the mistake. | 333 |
| The United States, suing to recover money so paid, is chargeable with such neglect equally with any other plaintiff. | 333 |
| PENSION. | |
| A town having notice of fraud in obtaining a pension which sues the pensioner for support as a pauper, and receives a portion of the pension money in compromise, is liable to the United States in an action for money had and received. | 417 |
| PERJURY. | |
| An oath required to be administrated by an act of congress, under the usage of the department, may be administered by a state officer having power to administer oaths. | 731 1400 |
| Perjury may be committed in an affidavit to an account for the purpose of getting it passed by the orphans' court. | 79 |
| An oath administered by a commissioner to a person tendering himself for justification, as bail for a person committed by such commissioner to await the issuing of a warrant for his removal for trial, will support an indictment for perjury, though it does not appear that the deposition was used on the application for bail. | 384 |
| An indictment for subordination of perjury (Act March 3, 1825, § 13), averring that defendant did feloniously, knowingly, and willingly procure B. to swear falsely in the taking of an oath, etc., but not averring that B. knowingly and willingly swore falsely, is bad on demurrer. | 600 |
| An indictment for perjury alleged to have been committed on an examination of a person charged with a crime against a law of the United States should show what the particular crime was. | 599 |
| Act April 30, 1790, §§ 19, 20, do not dispense with the necessity of such averment. | 599 |
| An indictment for perjury alleged to have been committed on an examination before C., “a commissioner of the United States, newly appointed,” but not stating how, or by whom, or under what statute, or for what purpose such commissioner was appointed, is bad on demurrer. | 599 |
| The indictment should set out the name and official title of the officer before whom the oath was administered. | 599 |
| PHYSICIANS AND SURGEONS. | |
| Constitution and legality of the medical board of examiners of the District of Columbia. | 660 |
| In a prosecution for practicing medicine without a license, a witness will not be compelled to produce the medicine which he received from defendant. | 660 |
| The application, by an oculist, of a liquid to the eye, is not the practice of medicine, but rather of surgery. | 660 |
| PIRACY. | |
| To constitute the offense of piracy (Act April 30, 1790, c. 9) by piratically and feloniously running away with the vessel, personal force and violence is not necessary. There must be a fraudulent and unlawful conversion. | 226 |
| PLEADING AT LAW. | |
| See also, “Abatement and Revival.” | |
| A declaration in a local action in a federal district court, which does not lay a venue, or avers a wrong one, is bad on demurrer. | 766 |
| Where a declaration is special, stating facts and circumstances, a plea setting up the same matter is bad. | 948 |
| If a plea which purports to answer all the breaches in the declaration is a good answer to some of them only, the objection cannot be taken advantage of on error, but on special demurrer only. | 608 |
| Where two pleas are substantially the same, the court will, on motion, order the last one to be stricken out as incumbering the record. | 1098 |
| The state practice having been adopted by the standing rules of the district court of the Southern district of New York, plaintiff may obtain leave to file a double replication to defendant's plea. | 866 |
| Plaintiff will not be allowed to file his replication after the rule day and in term time except upon condition of a continuance. | 1119 |
| On demurrer to several pleas defendant entitled to judgment where one of them is good and goes to the whole merits. | 1155 |
| A bill of particulars will not be ordered where the matters of which information is sought are peculiarly within the knowledge of the party asking it, or where, from the nature of the case, plaintiff cannot be reasonably expected to be able to give the items. | 171 |
| A bill of particulars ordered on information for violation of the revenue laws, where the allegations therein were vague. | 314 |
| PLEADING IN ADMIRALTY. | |
| On a libel for the nondelivery of goods the want of averment of ownership in the libelant is waived where the point is not raised in any way in the answer. | 1189 |
| PLEADING IN EQUITY. | |
| In a bill filed to set aside a sale at auction by defendant's agent on the ground that sham bidders were fraudulently employed to enhance the price, a release given by plaintiff to the agent, not set up in the bill or answer, can be brought in the case only by supplemental bill. | 1119 |
| POST OFFICE. | |
| The postal law of 1845 prohibiting the establishing of private expresses, held constitutional. | 97 |
| The carrying of letters, though without distinct compensation, which are not in the form of receipts, etc., is a violation of the law. | 97 |
| It is not unlawful for an express company to carry with a money letter or package an unstamped letter of advice concerning such money. (Act March 3, 1845, § 9.). | 352 |
| The possession of the office of a postmaster by a special agent of the department for one day, while adjusting his accounts, will not release his sureties from all subsequent liability under Rev. St. § 3836. | 794 |
| Mere indulgence or forbearance on the part of the government towards a defaulting postmaster for an indefinite time, in the absence of fraud, will not discharge his sureties. | 794 |
| The fact that the government continued a postmaster in office after discovery of a defalcation, and delayed to disclose the same, will not relieve his sureties from liability for subsequent defalcations. | 794 |
| A sealed letter, written by defendant to a person who had no existence, in answer to a decoy letter of a detective, and which, on its face, gives no information of the prohibited character, is not within Act July 12, 1876. | 591 |
| The word “rob,” in Act March 3, 1825, § 22, is used in its common-law sense. | 699 |
| Carrier of the mail need not have taken the oath prescribed by section 2, nor need the whole mail be taken, to authorize a conviction. | 699 |
| The offer or threat to shoot with a pistol is within the law without proof that the pistol was loaded. | 699 |
| “Jeopardy,” as used in such section, means a well-grounded apprehension of danger to life in case of refusal or resistance. | 699 |
| Robbing the mail is a capital crime if effected by the use of dangerous weapons putting in jeopardy the life of a person in custody thereof. Putting him in fear and his life in peril is putting his life in jeopardy. | 755 1401 |
| A swordor pistol in the hand of a robber, by terror of which the robbery is effected, is a dangerous weapon, within the law, though the sword be not drawn, and the pistol be not pointed or loaded. | 754 |
| An information under the act of 1845 for carrying a letter out of the mail need not negative the fact that it was stamped. | 179 |
| An indictment against a post office employs for stealing money from a letter (Rev. St. § 5467), which did not aver that the letter was one intended to be conveyed by mail, or that it had been deposited in any post office, or in charge of defendant, or that it came into his possession in the regular course of his official duty, held bad. | 740 |
| The embezzlement of a letter and the Stealing of its contents are distinct offenses under Rev. St. § 5467. | 19 |
| On a charge against a postmaster of abstracting a letter from the mail, all the postmasters and assistants on the route should be called as witnesses. | 538 |
| A person is not guilty of taking and embezzling a letter (Rev. St § 3792) where he took from the post office and retained a registered letter addressed in his care to a person who was dead, and retained a draft inclosed therein. | 74 |
| A person who takes a letter out of the post office and reads it by authority of the addressee, where it was also intended for him, does not violate the post-office law. | 12 |
| POWERS. | |
| The indorsement at the foot of a deed “I consent to the above,” signed by the person without whose “approbation and consent” a sale under a power of sale was not to be valid, held a sufficient compliance with the requirement. | 1364 |
| PRACTICE IN ADMIRALTY. | |
| An action in rem against goods shipped may be joined with an action personam against the consignees for freight. | 1114 |
| A writ of foreign attachment in aid of a libel in personam to recover less than $500, issued without direct sanction of the court, is irregular, and will be discharged, under rule 28. | 1080 |
| Rule 28 of the district court is not rescinded by supreme court rule 7, prohibiting employment of the writ of foreign attachment in aid of demands exceeding $500 without authority of the judge. | 1080 |
| Since the promulgation of the supreme court rules of 1850 abolishing arrests on admiralty process, where, by the state laws imprisonment for debt has been abolished, a warrant of arrest sued out without the special order of the judge is nugatory and void. | 1080 |
| Where the marshal, without authority of the court, has discharged attached property from custody, and subsequently served defendants personally, the court will require them to give security as a condition of opening their default. | 1092 |
| Where the corporate owners of a steamboat voluntarily appear as claimants, though under the wrong name, they are parties to the suit, and no objection can be taken to the decree for want of process against them. | 1229 |
| On a liable against a vessel, though the claims exceed her value, the amount of the freight is not to be included in the stipulation. | 1234 |
| Where the possession of a vessel is delivered up on the giving of a bond for value, it must be defended as if it had never been in the custody of the court. An attachment for contempt will not lie for its forcible taking. | 201 |
| The claimant in an action in rem, who secures the discharge of the property by giving a stipulation for value, must keep his stipulation good in the matter of sureties until the final determination of the case. | 1233 |
| Where, after an appeal by libelant from a decree dismissing the libel, the stipulators for value become insolvent, the circuit court will require the claimant to furnish new stipulators. | 1233 |
| Where a paper has been intrusted to libelant for the benefit of both parties, the court, on motion, will order its production before answer. But a letter addressed to libelant forming part of a contract, is not such a paper. | 1310 |
| PRINCIPAL AND AGENT. | |
| A general agent, acting under special instructions, which are known to the person with whom he is dealing, cannot bind his principal by any act which violates his instructions. | 678 |
| The principal is chargeable with notice where his agent has full notice. | 1100 |
| The principal is bound by the knowledge of his agent purchasing goods that they were removed from a bonded warehouse by fraud. | 297 |
| The principal may follow his property into the hands of the agent or his legal representatives or assignees in insolvency, if either it or its proceeds can be traced. | 1135 |
| PRINCIPAL AND SURETY. | |
| See, also, “Bail”; “Office and Officer.” | |
| The sureties on the bond of an assignee of a contract to account for “advances under and by virtue of the contract,” are entitled to the benefit of all limitations provided in the contract, both as to past and future advances. | 180 |
| Sureties are released by any agreement without their consent between the creditor and principal which varies essentially the terms of the contract. | 180 |
| Sureties on the bond of a contractor to construct a fort are discharged by the refusal of the war department to permit the administrator of the contractor to complete the work. | 180 |
| An agreement substituting tapia for brick, and altering the mode of estimation and price of labor in the construction of a fort, will discharge the sureties, though the change was for their benefit. | 180 |
| A change of contract under which C. was to receive a salary, and the expenses of the business were to be borne by D., so that C. was to pay the expenses and sell on commission, will discharge the sureties of C. | 1177 |
| PRIZE. | |
| Acts July 13, 1861, and Aug. 6, 1861, are purely municipal regulations, with which foreigners have no concern. | 624 |
| The carrying of military or naval persons in the service of the enemy to enemy ports subjects the offending vessel to condemnation. | 781 |
| A blockade, as understood by the law of nations, is an investment of a town of one belligerent by the forces of another. | 624 |
| Where 15 days are allowed for neutral vessels to leave on proclamation of a blockade, a vessel cannot leave within such time with a cargo put on board-after notice that the blockade had become effective. | 218 |
| There is no question of neutrality in a civil war, the insurgents not being acknowledged as a nation. | 624 1402 |
| Vessels which pick up enemy's goods thrown overboard during a chase are entitled to them as captors, and not as salvors. | 1188 |
| The admiralty courts have jurisdiction in prize over captures made on the Mississippi river during the Civil War. | 302 |
| Captures of vessels on navigable rivers are not within the prize jurisdiction unless made by the naval arm, or by its co-operation, contributing immediately in effecting the capture. | 302 |
| Vessels used merely as transports for troops and neither armed nor commanded by government officers, do not bring within the prize jurisdiction a capture by military forces. | 302 |
| Irregularities in the proceedings in not making the captors parties, and not bringing the prize into court for adjudication, may be corrected. | 302 |
| The liability to condemnation is not affected by the right of the captors to prize money, or the fact that the capture was brought about by a revolt of the crew of the vessel. | 781 |
| After a decision that a forfeiture had been incurred, the court allowed the case to stand open for further proof that the strictness of the blockade had been relaxed. | 218 |
| Cotton captured as prize, and in the custody of the marshal under a warrant from the prize court, is not liable to be proceeded against for the internal revenue tax while in his custody. | 1183 |
| Where a vessel is condemned as enemy property, but the cargo is released as belonging to a neutral engaged in lawful trade, seamen are not entitled to wages out of the proceeds, nor will the master be allowed his advances for necessary repairs and supplies. | 1136 |
| When a vessel is taken by the secretary of the navy under Act 1863, c. 86, § 2, the marshal is not entitled to his fees as in the case of a sale, or to half commission as when a case is settled without a sale. | 1183 |
| Vessel and cargo condemned as enemy property and for an attempt to violate the blockade. | 1146 |
| PUBLIC LANDS. | |
| See, also, “Factors and Brokers”; “Grant.” | |
| Construction of Act Pa. March 28, 1787, confirming the title of certain Connecticut settlers to lands claimed by them in Luzerne county. | 1012 |
| The nonperformance of a condition of a public grant to pay annually an ear of corn as rent is not a ground of forfeiture, as such rent is merely nominal. | 1153 |
| Where, in the case of a grant from the British crown, payment of the rent at the place stipulated is rendered impossible by the separation of the countries, the state which succeeded to the rights of the British crown should have appointed another place of payment, and given notice thereof. | 1153 |
| Public lands, made a trust estate for the payment of certain bonds, and placed under the control of trustees, are subject to the power of a court of equity to raise therefrom the money due and chargeable thereon. | 1286 |
| In an indictment for cutting timber it is not necessary to state the class of lands from which the trees were cut. | 98 |
| QUI TAM AND PENAL ACTIONS. | |
| Although, in the absence of an informer, the government may have judgment for the whole, yet this does not authorize the proceeding by indictment. | 179 |
| Where a statute creates an offense, and affixes a specific pecuniary penalty appreciating one-half thereof to the informer, it adopts by implication those remedies by which alone the informer can sue. | 179 |
| RAILROAD COMPANIES. | |
| The gift of lands and bonds made by the United States to the Union Pacific Railroad Company were not in the nature of a trust, but were made absolutely without condition precedent. | 333 |
| Under Act Fla. Jan. 6, 1855, §§ 2, 3, 12, the amount which the railroad company is bound to pay annually towards the sinking fund is to be calculated upon the amount of bonds still uncanceled. | 1285 |
| A charter to construct the Union Pacific Railroad from a point on the “western boundary of the state of Iowa” held to mean from the Iowa shore to the Missouri river. | 345 |
| A mandamus will issue to compel the company to operate its road over the bridge over the Missouri river in the same manner in which the other portions of its road are operated. | 345 |
| Construction of Act March 3, 1873, § 4, directing a suit in equity to be instituted in the name of the United States against the Union Pacific Railroad Company and others. | 333 |
| A suit to redress fraudulent acts on the part of the managing officers of the Union Pacific Railroad Company cannot be obtained in a suit brought by the United States. | 333 |
| REAL PROPERTY. | |
| See, also, “Boundaries”; “Deed”; “Ejectment”; “Estates”; “Grant”; “Public Lands.” | |
| Innocent purchasers from a grantee who fraudulently obtained possession of a deed, who make valuable and lasting improvements, are entitled to compensation therefor. | 861 |
| In such case the annual rents and profits will be deducted from the value of the improvements. | 861 |
| RECEIVERS. | |
| The court will not appoint a receiver of trust funds in the hands of high public of trust funds in the hands of high public officers where the trust involves duties of a public character, except in cases of gross fraud and imminent danger. | 1298 |
| RELEASE AND DISCHARGE. | |
| A release given to a debtor of the United States by an officer of the government will have the same effect as an ordinary release from a creditor to a debtor. | 92 |
| Where two persons are bound jointly or jointly and severally in an obligation, the release of one will discharge the other. | 92 |
| Where a joint judgment has been rendered against two defendants, a release of one of them subsequent to the judgment will discharge the other. | 92 |
| The release of one after a judgment obtained against the other is not available to the latter. | 92 |
| A release of the party primarily liable is a release of all parties secondarily liable. | *1124 |
| A release by purchasers at a sale by auction to the agent who made it would release the vendors from all liability for fraudulent by-bidding which enhances the price | *1124 1403 |
| REMOVAL OF CAUSES. | |
| See, also “Courts.” | |
| Suits against federal revenue officers on account of acts done under color of their offices, may be removed from state courts. | 1144 |
| A suit in a state court by an informer against a collector for the proceeds of goods condemned may be removed by certiorari into the federal circuit court. (Act March 2, 1833, § 3.). | 1093 |
| A suit against the assistant treasurer of the United States to recover the value of certain United States bonds deposited with him by plaintiff and retained by him under instructions from the treasury department, on the, ground that they were unlawfully put into circulation as against the party to whom they were issued, cannot be removed under Act March 2, 1833, § 3. | 1177 |
| Act March 3, 1875, c. 137, § 10, does not repeal Rev. St. § 643, providing for the removal of suits from the state to the national courts in certain cases. | 1144 |
| The case is not removable where one of defendants is a citizen of the same state with plaintiff, though the others are citizens of different states. | 952 |
| A suit cannot be removed as to one defendant where there are other necessary defendants to the bill. | 1324 |
| A suit in equity cannot be removed when pending in an appellate tribunal. | 1324 |
| Where a rule to show cause why defendant should not be attached for contempt for violating an injunction was granted by the state court before removal of the cause, the federal court will remand the contempt proceedings while retaining the main cause for adjudication. | 1274 |
| RULES OF COURT. | |
| The rule of the circuit court for the Southern district of New York of Nov. 11, 1867, in regard to the designation and selection of jurors, is a proper provision. | 9 |
| SALES. | |
| See “Vendor and Purchaser.” | |
| SALVAGE. | |
| Salvage is not due for rescuing the vessel of a neutral out of the hands of a belligerent, who took possession of her for a supposed breach of treaty or of the law of nations. | 1341 |
| A tug maintained at heavy expense for salvage purposes is entitled to the full remuneration usually awarded to other salvors. | 1219 |
| One-half the value of cargo transshipped and 4 per cent. of that of the vessel and remaining cargo allowed where a brig caught and damaged in the ice in Delaware Bay was rescued by the removal of her cargo and towed into port by a steam tug. | 1219 |
| The salvor of a vessel which is not derelict has no right, after the vessel is brought into port, to provide supplies which will create a lien upon the vessel, or charge the owner therewith. | 1197 |
| Goods on board of a private ship, belonging to the government, are subject to admiralty process in rem for their proportion of salvage. | 601 |
| Where a salvor steamer places a mate aboard a vessel which has lost its officers through yellow fever, and is delayed only a few minutes thereby, the officer is entitled to the major part of the salvage allowed. | 818 |
| SEALS. | |
| The removal of an official seal in ignorance of its character, and in the honest execution of a supposed duty, will not render the person liable under a statute punishing the willful removal of a seal. | 144 |
| SEAMEN. | |
| See, also, “Maritime Liens.” | |
| The contract of shipment. | |
| A contract to ship as seamen on a trading voyage on the coast, without any definite stipulation as to time or place of termination of the voyage, when justice to the seamen requires it, will be held void. | 1367 |
| A contract entered into at sea, changing the terms or duration of the original contract, will be disregarded if prejudicial to the seamen's interest. | 1367 |
| Under articles for a voyage from New Orleans to Havre, and thence to one or more ports in Europe, and thence back to a port of discharge in the United States, the seamen cannot be required to proceed to Charleston as a final port of discharge after the vessel has stopped at New York, and landed passengers and freight. | 584 |
| Where the shipping articles specify the wages, the mate cannot give parol evidence of an agreement to allow him other compensation. | 1118 |
| Conduct of master or mate in respect to seamen. | |
| When the master is on board, a subordinate officer has no power to punish a seaman, except by authority of the master, or when instantaneous punishment is necessary to compel a seaman to do his duty. | 31 |
| In the absence of the master, the next highest officer on board succeeds to his rights and authority pro tempore, so far as they are necessary for the due performance of the ship's duties. | 31 |
| A master, who is present when punishment is inflicted by a subordinate officer, is personally responsible therefore. | 31 |
| In cases of mutinous conduct the master may use a greater degree of violence than where there is misbehavior only. | 595 |
| The master is not justified in chastising a seaman at the wheel, however flagrant his demeanor may be. | 1323 |
| Wages. | |
| The rule that freight is the mother of wages does not apply to a voyage made in ballast. | 1367 |
| Where a vessel is captured and condemned, wages are due the seamen up to the date of condemnation. | 976 |
| Where, in case of the capture and condemnation of a vessel, the owners recover a portion of their claim against the government, wages are due the seamen out of such fund to the time of condemnation, without deduction for expenses of recovery or abatement in the same proportion as the original claim. | 976 |
| Where a seaman is discharged without his consent, and without reasonable cause, at a foreign port, he is entitled to wages to the time of the arrival of the vessel at the last port of delivery. | 1118 |
| Offenses. | |
| To authorize a conviction under Act 1835, c. 40, § 3, for injury to a seaman, both malice, hatred, or revenge and a want of justifiable cause must be shown. | 31 |
| The word “crew,” as used in Act 1835, 40, includes the officers as well as common seamen, and the master may be liable thereunder for an imprisonment of the first mate. | 733 1404 |
| A seaman may refuse to inflict punishment on one of the crew unless some justifiable cause is pointed out to him. | 732 |
| An indictment for an endeavor to commit a revolt and for confining the master need not allege that he was at the time in the peace of the United States, or a citizen thereof. (Act 1790, c. 9, § 12.). | 102 |
| An endeavor to commit a revolt by stirring up or encouraging or combining with any others of the crew to produce a disobedience to any one lawful order of the master or officers will constitute an offense under the act. | 102 |
| Moral as well as physical restraint may constitute a confinement within the act, if not for a justifiable cause, or in justifiable self-defense. | 102 |
| Jurisdiction to try the offense attaches either to the district into which the offender is first brought or that in which he is apprehended. | 102 |
| A cooper of the ship is a seaman, within the provisions of the act. | 102 |
| Sufficiency of indictment against a seaman for endeavoring to make a revolt on board an American vessel in foreign waters. | 233 |
| SEIZURE. | |
| See “Admiralty”; “Courts”; “Customs Duties”; “Forfeiture”; “Internal Revenue”;“Practice in Admiralty” “Prize”; “Shipping” “War.” | |
| SET-OFF AND COUNTERCLAIM. | |
| An unliquidated demand cannot be the subject of a set-off. | 674 |
| Damages which have not been ascertained, and are in their nature uncertain, are not the subject of a set-off. | 521 |
| A claim of damages sustained by a public officer against the government cannot be set off against a legal demand. | 521 |
| The rule of law that several debts cannot be set off against joint debts obtains equally in equity, unless some peculiar equities intervene. | 1293 |
| SHERIFFS AND CONSTABLES. | |
| The sureties of a sheriff in Virginia are not liable for officer's fees unless the account of the same shall have been delivered to the sheriff for collection before the 1st of March, under Act Va. Dec. 19, 1792, § 11. | 1228 |
| In debt on a sheriff's bond, his return upon an execution that he had satisfied the plaintiff is not evidence for defendants. | 1229 |
| Upon a breach assigned in not paying money received upon a fi. fa., plaintiff must show that the sheriff received the money before the return day. | 1229 |
| A return produced by plaintiff as evidence of the receipt of the money is also evidence of its payment to plaintiff, where it is so stated therein. | 1229 |
| SHIPPING. | |
| See, also, “Admiralty”; “Affreightment” “Average”;“Bills of Lading”; “Bottomry and Respondentia”; “Carriers”; “Collision” “Maritime Liens”; “Salvage”; “Seamen” “Towage”; “Wharves.” | |
| Public regulation. | |
| An American registered vessel, sold, while at sea, to resident citizens of the United States, without a bill of sale reciting her registry, and without any new registry, until her arrival in the home port, loses her privileges as an American vessel until such new registry is made. | 695 |
| A foreign vessel, abandoned at sea, and picked up and towed into New York is not a “vessel wrecked in the United States” (Rev. St. § 4136), and is not entitled to an American register as such, where her repairs amounted to three-fourths of her value when repaired. | 374 |
| The sale of a licensed schooner to a British subject, followed by an order to the master to make delivery to him, and the presentation of a request for clearance by the captain, which recites the sale, and is signed and sealed by the British consul, though the delivery is not yet actually made, is a “transfer.” (Act Feb. 18, 1793.). | 373 |
| A vessel enrolled or licensed under Act March 2. 1831, became under the protection of the laws of the United States, and bound to observe the revenue laws. | 1 |
| Act July 7, 1838, does not apply to vessels which were not theretofore required to be enrolled and licensed for the coasting trade. | 629 |
| Ferryboats, prior to such act, were not required to be enrolled and licensed. | 629 |
| A license from the United States is not necessary to authorize the owners of a steamboat to employ her in ferrying. | 629 |
| Under Act July 7, 1838, more than six months must not elapse after one examination of a steamboat's boilers before another is made. | 1229 |
| The penalty imposed by Act July 7, 1838, for failure to have a steamboat's boilers inspected, cannot be recovered from the owners by a libel in admiralty. | 1229 |
| Act Aug. 30, 1852, c. 106, §§ 3–5, requiring steam vessels carrying passengers to be provided with life preservers, etc., applies to a vessel which actually carries passengers, though not usually and regularly engaged in that business. | 86 |
| Negro slaves, shipped by their owner, are passengers under such act. | 86 |
| An inspector, under such act, although he may be the informer, is not entitled to any part of the penalty, and is a competent witness for the prosecution. | 86 |
| Title to vessel. | |
| On the application of two part owners owning a moiety, who cannot agree with the other owner as to the employment of the vessel, it will be ordered sold. | 1193 |
| The master. | |
| The vessel owner is liable for the expenses of medical attendance rendered the master on board the vessel in a sickness incurred in her service. | 1034 |
| The master has no lien for his wages on goods consigned to the vessel owners. | 1305 |
| Where a ship, on account of injuries caused by dangers of the seas, is obliged to lay up in a port of necessity for repairs, the master may sell such portion of the cargo as is of a perishable nature. | 1143 |
| Where goods are consigned to the master for sale, the vessel is only bound for his acts in their stowage and transportation, and not for those connected with the sale and disposition of the goods or their proceeds. | 1356 |
| Employment of vessel. | |
| A shipper, whose goods are lost or damaged by the fault or neglect of the master, has a remedy against the owners, and a lien on the ship. | 1356 |
| Where goods are lost by the vessel springing a leak while at anchor in a harbor, the shipowner must show some stress of weather or other circumstances sufficient to account for such a leak in a vessel of ordinary strength. | 1234 1405 |
| A piece of statuary, shipped under a bill of lading excepting dangers of the sea, was delivered to the vessel at Leghorn in a wooden case, having been packed at Carrara, and brought to Leghorn in a lighter. It was well stowed, but the vessel met with heavy weather on the passage, and it was found broken when it reached its destination. Held, that the burden was upon libelant to show that it was in good condition when it was delivered to the vessel. | 1199 |
| Where perishable cargo is sold at a port distress at which a vessel lays up for repairs on account of injuries due to perils of the seas, no freight is recoverable. | 1143 |
| By the general maritime law there is a lien on the goods for freight, whether shipped under a bill of lading or a charter party; but such lien may be waived or displaced by any special agreement inconsistent therewith. | 1260 |
| A stipulation for the payment of freight 10 days after the return of the vessel is not necessarily inconsistent with such lien. | 1260 |
| Where a vessel puts into a port of distress, and the shippers and underwriters are informed as to the condition, and do not give any direction, and the cargo, after a regular survey, is sold as unfit for reshipment, held, that the vessel is not liable, though the master carries the cargo back to the port of shipment for the purchaser, and subsequently takes it to its original destination. | 1165 |
| A case of goods put over the vessel's side upon a truck and wheeled to the place where it was inspected and marked for the public store, and then wheeled further up the wharf, and disappearing within an half hour within the inclosure, held not delivered so as. | 1189 |
| Liabilities of vessels or owners. | |
| The owners of a whaling vessel are liable for damages for the abduction of a minor by the captain without their knowledge. | 1352 |
| Offenses. | |
| What constitutes the casting away of a vessel under Act March 26, 1804, § 1. | 360 |
| The circuit court has no jurisdiction of the offense of willfully destroying a vessel (Act March 26, 1804, § 1), unless it was committed upon the high seas, and not merely upon waters within the jurisdiction of the United States. | 718 |
| Any officer of a steamboat, through whose negligence or ignorance an explosion takes place, which is destructive of life, is guilty of manslaughter. | 25 |
| The essence of the crime under Act July 7, 1838. § 12, consists in the fact of there being “misconduct, negligence, or inattention” in such degree and of such a character as to have produced the result set forth in the indictment, irrespective of the intention of the person charged. | 404 |
| The captain is responsible where he failed at once, after a collision, to ascertain the extent of the injuries, and to run his vessel ashore if he finds she will go down. | 404 |
| Loss of life is not the necessary result of a collision where the persons indiscreetly took to floats or rafts instead of remaining upon the upper deck of the sinking steamer, as commanded, where it appears that they would have been safe; otherwise where in such case they acted with ordinary prudence and discretion under the circumstances. | 404 |
| SLAVERY. | |
| Sufficiency of evidence to rebut the presumption of slavery arising from color. | 529 |
| A slave does not acquire a right to freedom by being sent from Washington, D. C., to Virginia, for sale, and, not being sold, brought back after nine months' absence. | 1218 |
| A certificate of freedom is not such a “pass” as is contemplated by Act Md. 1796, c. 67, § 19. | 379 |
| The offenses prohibited by Act May 15, 1820, § 4, may be committed by any citizen of the United States on board of any vessel, whether foreign or American. | 529 |
| It is an offense under such section to receive negroes on board of the vessel from persons who have seized them and brought them of to the vessel's side in violation of law. | 529 |
| A fugitive slave law (section 7) makes it a criminal offense knowingly and willfully to frustrate or retard the attempted recapture of a fugitive slave by his master, whether it be by force, active or passive, or stratagem. | 631 |
| The offense being a misdemeanor, one aiding or abetting another to commit it, whether he be absent or present, is guilty as a principal. | 631 |
| Sufficiency of indictment under Act 1796, c. 67, § 19, for aiding and advising the transportation of a slave. | 647 |
| “Notice,” within the fugitive slave law, making a person liable for a penalty who conceals or harbors a fugitive slave after notice that the person is such, means knowledge; and “harboring” means entertaining or sheltering with the purpose of encouraging the desertion, furthering the escape, or frustrating reclamation. | 1036 |
| An action will lie at common law to re cover damages for the harboring and concealing of a fugitive slave. | 1042 |
| SPECIFIC PERFORMANCE. | |
| Where a contract of sale provides that the same shall be void if the vendor does not pay the purchase money within a prescribed period, specific performance will not be decreed where payment is not made with in such time. | 1200 |
| STATUTES. | |
| See, also, “Constitutional Law.” | |
| The power to declare statutes void exists only in cases of contravention, opposition, or repugnancy to some express restriction or provision in the constitution. | 614 |
| In the construction of penal statutes that sense will be adopted which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature. | 733 |
| Effect must be given to the words used in the statute when there is no uncertainty or ambiguity in their meaning. | 404 |
| The general words of a statute do not include the government, or affect its rights, unless such purpose be clear and indisputable on the face of the act. | 518 |
| The preamble of a statute may be referred to to determine which sense was intended by the legislature only where the enacting part is ambiguous. | 509 |
| Statutes levying taxes or duties are to be construed most strongly against the government, and their provisions are not to be extended by implication beyond the clear import of the language used. | 595 |
| In the construction of the Revised Statutes no change of meaning will be imputed to a change of phraseology in the re-enacted statute unless the language used indicates an intended departure therefrom. | 169 |
| Words imposing a forfeiture or penalty will not be construed to embrace a case not within the parts of the law which prohibit the act done, or direct the performance of an act by the omission of which the penalty or forfeiture is incurred. | 276 1406 |
| Wherever, in a statute, the words “master and crew” occur in connection with each other, the word “crew” embraces all the officers as well as the common seamen. | 733 |
| Only a necessary and irresistible implication will be held to operate a repeal of a statute. | 39 |
| A general law admitting interested parties to testify as witnesses in all cases held not repealed by a subsequent special law admitting interested parties to testify in certain contingencies. | 39 |
| The sections of the Revised Statutes in relation to crime are not repealed by subsequent statutes prescribing different punishments. | 328 |
| When a statute is made in addition to another on the same subject-matter, without express words of repeal as to any part of the former, the provisions of both must be construed together. | 770 |
| When a statute contains an absolute affirmative repeal of an antecedent statute, or part of it, the expiration of the subsequent statute by its own limitation will not revive the repealed act. | 257 |
| SUBROGATION. | |
| Lands mortgaged to indemnify the mortgagee against an incumbrance on other property which the mortgagee subsequently conveyed with a covenant against incumbrances, may be reached by the latter's grantee, who has been evicted, or been obliged to pay the incumbrance. | 828 |
| TAXATION. | |
| See, also, “Internal Revenue.” | |
| The courts cannot, by construction or legal fiction, include subjects of taxation not within the terms of the law. | 501 |
| An act of the state legislature laying a tax on “all real estate, to wit” (specifying various sorts of real estate shown to be private property), does not include property of any sort of the United States within its territory. | 518 |
| Even though a state had power to tax real estate of the United States within its territory, it cannot enforce the tax by levy and seizure. | 518 |
| TOWAGE. | |
| See, also, “Collision”; “Salvage.” | |
| A steam tug is liable as a common carrier, and cannot limit its responsibility by a notice, given at the time of commencing the voyage, that it must be at the risk of the tow. | 970 |
| Where a steamer stranded in a river employs a less powerful one to assist in getting her off, and directs the maneuver, it is her duty to see that there are no obstacles or dangers in the place where the latter is to work; and she is liable for the sinking of the latter in the maneuver. | 1222 |
| A tug which gives a different signal from that intended, resulting in a collision, is liable therefor to her tow. | 1258 |
| Tug held liable for the loss of a canal boat run upon Flood Rock in a field of soft ice, on the ground that she should have waited until the ice had passed. | 852 |
| The admission of the owner of a tug that he was liable for the loss of a tow, coupled with payment of damages to the owners, is sufficient to sustain a decree against him in favor of the owner of the cargo. | 852 |
| TREASON. | |
| To go with a large party in arms, marshaled and arrayed, to houses of officers of excise, and there commit acts of violence and devastation, with the avowed object of suppressing such offices, and compelling the resignation of the officers, for the purpose of nullifying an act of congress, is treason. | 376 |
| TREATIES. | |
| See, also, “Extradition.” | |
| Congress may abrogate a treaty so far as it is a municipal law, if its subject-matter be within the legislative power of congress. | 195 |
| TRESPASS. | |
| A person who, with knowledge that another has committed a trespass, receives part of the property taken with knowledge thereof, is guilty of the trespass. | 1301 |
| TRIAL. | |
| See, also, “Appeal”; “Continuance”; “Criminal Law”; “Evidence”; “Jury”; “New Trial”; “Practice”; “Witness.” | |
| Notice to the opposite party to produce at the trial all letters in his possession relating to moneys received by him under the award of the commissioners under the Florida treaty is sufficiently specific, as they are described by their subject-matter. | 1106 |
| The court will not order witnesses for the prosecution to be sent out of the room after they have been examined, and while the prisoner's witnesses are under examination. | 762 |
| A witness ordered to be taken out of court during the examination of other witnesses, who remains in court in violation of the order, will not be permitted to be examined. | 762 |
| The party demurring to evidence is held to admit only such facts which a jury, in the exercise of a fair and reasonable discretion, could infer from the evidence. | 678 |
| TRUSTS. | |
| An attorney for trustees charged with a public trust, or one of such trustees acting as attorney for the others, has not the implied power to consent to a decree which has the effect of taking the trust out of the hands of the trustees, or of placing its execution in other hands. | 1286 |
| Where a fund is affected by a trust, it may be followed as long as its identity can be traced, in the hands of any person who receives it with notice. | 417 |
| UNITED STATES. | |
| See, also, “Claims,” | |
| The process and forms of proceedings adopted by congress from the state laws are binding upon the United States as parties to an action. | 43 |
| The United States cannot convert to themselves the property of another by their own declaration or their own authority, nor can they maintain an action in their own name against one to recover a debt which he may owe to another. | 333 |
| As to the existence of liens arising for work and labor done in connection with property of the government. | 601 |
| A judgment in favor of the United States arising out of a fraudulent entry of goods | |
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