Volume 16 — Federal Cases

Assumpsit, for one fourth part of the prize of $10,000, drawn upon ticket No. 1037, in the first class of a lottery called “The National Lottery.” The declaration contained four counts: 1. The first count sets forth the amended charter of the city of Washington, of May 4, 1812; the by-law of July 24, 1815; the managers’ bonds; the scheme of the lottery, first class, 19th December, 1817.

This was an action to recover the quarter interest payable the 1st of October, 1810, on $125,000, six per cent, funded stock of the [Bank of thej United States, with interest from the 2d of October, 1816, when it was received by the defendant. The declaration contained two counts, one upon a special agreement, which was fully proved by Mr. Jones, and the other for money had and received to plaintiff’s use.

<p>Case No. 8,738.</p> <p>Seaman’s Wages —Risk of War - Was Terminated — Lesion of Wages.</p> <p>A mariner ships at Philadelphia, in tíme qf war, for Bordeaux and back again. While the ship is at Bordeaux, peace takes place. The ship returns to Philadelphia, which terminates the voyage. The manner’s wages shall not be lessened on account of the decrease of the risk on the homeward voyage.</p> <p>[Cited in Shaw v. The Lethe, Case No. 12,721.]</p>

In equity. This case was heard on bill, answer, and proofs. The bill averred the existence, prior to 18th September, 1873, of two firms, v;z„ Jay Cooke & Co., and Jay Cooke, McCulloch & Co., doing business as bankers in Philadelphia and London respectively. The firms were in no way connected, except that a number of persons (not including the plaintiffs) were members of both firms.

[This was a libel in rem by Jethro J. McCullough and others against the steam propeller Echo (James G. Wilson, claimant) for failure to deliver goods under the terms and conditions of a bill of lading.]

On motion to remand. The defendant, an Illinois corporation, removed this cause to this court under the act of March 3, 1875, the plaintiff being a citizen of Iowa. The plaintiff moves to remand the suit because the petition for the removal was not made and filed in time. The suit in the state court, which was an action at law, was commenced by attachment in December, 1876.

<p>Case No. 8,742.</p> <p>Costs — Security for — Party Removed from District.</p> <p>The defendant may require security for costs, from a plaintiff who has removed from the district since the commencement of the action.</p>

Habeas corpus, to Andrew Jamieson to bring the body of McCutchin, whom he claims as an apprentice. The return showed an indenture between the overseers of the poor and Andrew Jamieson, under their seals, in which they state that the boy is nine years-old in July, 1794, (the date of the indenture,) and. bind him until he shall be twenty-one years old.

[This was an action at law by George McDaniel against Benjamin R. Milam to enforce the payment of a note. From a decree of the court below in favor of defendant, plaintiff appealed.]

M’Dermott claimed a lien for labour and services as a stevedore in loading and storing the cargo of the vessel S. G. Owens, while lying at one of the wharves of Philadelphia, previous to proceeding on a royage to California; and the question was whether, admitting the vessel to be a foreigB vessel, he had such a lien under the general maritime law. As a domestic^ vessel, it was admitted he had no lien. The case was a hard one upon the stevedore.

<p>Case No. 8,750.</p> <p>Bankruptcy — What is Commercial Paper — Object for which Money Used.</p> <p>1. A note and a due bill given for money loaned to a manufacturing company, payable on demand, is not ■•commercial paper” within the meaning of the 39th section of the bankruptcy act [of 1867 (14 Stat. 536)].</p> <p>[Disapproved in Be Chandler, Case No. 2,591; Be Carter, Id. 2,470. Cited in Be Clemens, Id. 2,877.]</p> <p>[See In re Hollis, Case No. 6,621. See, contra, In re Niekodemus, Id. 10,254; In re Stevens. Id. 13,393; In re Kenyon, 6 N. B. B. 238; In re Hercules Ins. Co.. Case No. 6,402; In re Clemens, Id. 2,878.]</p> <p>2.The object to which the money borrowed was applied, cannot affect the character of the instrument given as evidence of the indebtedness.</p>

<p>Case No. 8,749.</p> <p>Chattel Deed or Trust — Substitution of Property.</p>

<p>Case No. 8,751.</p> <p>Habeas Corpus — Jurisdiction op Federal Court —Exclusive Jurisdiction — How Determined —History op Habeas Corpus.</p> <p>1. A United States district judge, or a United States district court, has jurisdiction to issue the writ of habeas corpus, and hear the case when the petitioner is held under illegal restraint, without any formal or technical commitment.</p> <p>[Cited in Be Beynolds, Case No. 11,722.]</p> <p>2. The writ of habeas corpus may issue from a federal judge whenever the applicant íb illegally restrained of his liberty, under or by color of the authority of the United States, and such case is exclusively within the jurisdiction of the federal tribunals.</p> <p>[Cited in Be Farrand, Case No. 4,678.]</p> <p>3. The question of jurisdiction is to be determined by the acts of congress and the decisions of the supreme court the circuit courts, and the district courts of the United States, thereupon.</p> <p>4. The construction and interpretation of the acts of congress, of September 24, 1789, § l4 [1 Stat. 81], and of March 2, 1833, § 7 [4 Stat 634].</p> <p>5. The history of the habeas corpus, under the judiciary acts and the force bill, as drawn from the adjudicated cases, given and explained.</p> <p>6. The adjudicated cases on the habeas corpus in the supreme court, in the circuit courts, and in the district courts of the United States, cited, and commented on.</p>

Habeas corpus to Colonel Wildrick; commanding officer of Fort Independence, in Boston harbor, to test the validity of the enlistment of James McDonald, in the army of the United States. By the return to the writ and the other evidence, it appeared that the boy was enlisted in May, 1866, being then seventeen years and six months old, without the consent of the petitioner, his father.

<p>Case No. 8,753.</p> <p>Principal and Surety — Assent to Discharge of Maker of Note — Release of Surety — Bankruptcy — Intervention by Creditors — Claim Stricken Out.</p> <p>If the holder of a note assents to the discharge of the maker, without the consent of the indorser, this releases the indorser. Creditors will not be allowed to intervene, after the return day, to prosecute specifications filed by a creditor whose claim was stricken out after the filing of such specifications.</p> <p>[Cited in brief in First Nat. Bank v. Wood, 53 Yt 493.]</p>

[This was a bill in equity by Helen Marie Macdonald against S. M. Blackmer and others for the alleged infringement of a patent skirt protector. There was a decree in favor of plaintiff (Case No. 8,758), after which the court, upon a rehearing, allowed defendants to file a supplemental answer and take evidence. The case is now heard upon the original papers,, together with the supplemental answer and new evidence taken.]

<p>Case No. 8,754.</p>

<p>Case No. 8,756.</p> <p>Practice in Admiralty — Costs — Dismissal for Want of Jurisdiction — Costs on Appeal.</p> <p>1. The district court, on dismissing a libel for want of jurisdiction, has no power to award costs against the libellant.</p> <p>[Cited in The Hendrick Hudson, Case No. 6,-355; Wenberg v. Cargo of Mineral Phosphate, 15 Fed. 288; Cooper v. New Haven Steamboat Co.. 18 Fed. 588; Pentlarge .v. Kirby, 20 Fed. 808.]</p> <p>2. Where the district court dismissed a libel for want of jurisdiction, and awarded costs against the libellant and this court on an appeal by the libellant from the whole decree, affirmed so much of it as dismissed the libel and reversed so much of it as awarded costs, no costs of this court were allowed to either party.</p> <p>[Followed in Pentlarge v. Kirby, 20 Fed. 901.]</p>

[This was a bill in equity by Helen Marie Macdonald against S. M. Blackmer and others for the alleged infringement of patent No. 155,534, granted to H. M. Macdonald, September 29, 1874.]

<p>Case No. 8,769.</p> <p>Attorney and Client — Proctor—Suit for Fees —Settlement by Parties inter Be.</p> <p>1. A suit by a proctor in the admiralty for his costs or fees, is a familiar proceeding in the admiralty tribunals both in this country and in England.</p> <p>2. "Where wages due from a master to the seamen, are seized under a process of garnishment from a local court in the hands of the former, at the very time that, a suit for a penalty and wages brought by those seamen against the master, is pending in the United States district court sitting as a court of admiralty, it is the duty of the master not to pay over the money before the expiration of the legal delay for the return of the garnishment, without the knowledge of the proctors in the admiralty suit. A payment under such circumstances will render the master responsible for the costs of the opposing proctor, if the latter has thus been prevented from receiving them from his own clients in the ordinary way.</p> <p>3. Negotiations for the adjustment of a suit in admiralty should be conducted in the presence of the proctors of the parties, as they have a personal and legal weight and a direct responsibility to the court.</p>

Demurrer by plaintiff [Angus McDonald] to the last plea filed by the defendant [Franklin K. Orvis], and setting up, in substance, that the contract, a written one. declared upon was subsequently changed or another contract entered into between the same parties.

<p>Case No. 8,765.</p> <p>Practice in Admiralty — Default of Garnishee —Compulsory Process — Answer.</p> <p>1. On default of one summoned as garnishee in admiralty, the libellant is not entitled to execution in personam against him. The thirty-seventh rule of the supreme court provides for compulsory process only to compel the garnishee to answer.</p> <p>2. After such default, the garnishee is not entitled as of right to put in an answer, except to state facts which have occurred since the default.</p> <p>3. Such answer may be allowed in the discretion of the court, and in this case was so allowed, on condition that the libellant might take issue ujion it, and that the garnishee should stipulate with sureties to pay whatever the court should allow.</p>

[This was an action at law by MacDonald against the Saginaw Valley & St Louis Railroad Company to recover for work and labor done and materials furnished under a contract. Heard on exceptions to the report of a referee.) The declaration consists of the common counts for goods, wares, and merchandise sold and delivered, work and labor done, and materials furnished, and money due on account stated.

<p>Case No. 8,767.</p> <p>Patents — Dress Protector — Essential Part or Invention.</p> <p>Held, that the “fluted or plaited border” of the complainant’s dress protector, for which letters patent No. 155,534 were granted to her September 29th, 1874, is not an essential part of the invention.</p> <p>[Cited in Macdonald v. Sidenberg, Case No. 8.-708; Day v. Combination Rubber Co., 2 Fed. 571.]</p> <p>TFor other cases involving this patent,...see note to MacDonald v. Blackmer, Case No. 8,758.]</p>

<p>Case No. 8,768.</p> <p>Patents — Skirt Protector — Infringement— Fluted ok Plaited Border,</p> <p>A patent for a skirt protector, in which the article is described as having a fluted or plaited border bound with or composed of enamelled cloth or other water-proof material, is infringed by a protector which does not have a fluted or plaited border, but is like the patented article in all oilier respects. The cases of Macdonald v. Black-mer [Case No. 8.757], and Same v. Shepard [Id. 8,707], cited and followed.</p> <p>[Cited in Day v. Combination Rubber Co., 2 Fed. 571; Macdonald v. Shepard, 4 Fed. 229.]</p> <p>[For other cases involving this patent, see note to MacDonald v. Blackmer, Case No. 8,758.]</p>

<p>Case No. 8,770.</p> <p>Libel — Pleadings — Responsibility op Newspaper Publishers — Measuke of Damages.</p> <p>1. In an aetion for libel against the publishers of a newspaper, it is no justification that the article was copied from another paper, and that it showed this fact on its face.</p> <p>2. Under the common law system of pleading, this fact may, when available, be used in mitigation of damages under the general issue.</p> <p>[Cited in Upton v. Hume (Or.) 33 Pac. 813.]</p> <p>3. One proprietor of a newspaper is responsible for the act of his co-proprietor in publishing a libelous article.</p> <p>4. Libel defined — respective functions of court and jury in the trial of actions for libel — criticism of official conduct and public ''officers, extent and limitations upon the right — subsequent libelous articles — measure of damages.</p> <p>[Cited in Erber v. Dun, 12 Fed. 531, 533.]</p>

<p>Case No. 8,771.</p> <p>Extradition — Mandate from Executive — Commissioner — Words of Treaty — Warrant —Habeas Corpus — Adjournments.</p> <p>1. Whether a commissioner has jurisdiction to entertain proceedings for the apprehension of an alleged fugitive from the justice of a foreign government, with a view to his extradition under a treaty for that purpose, until a mandate or authority for his apprehension has been granted by the executive department of the government of the United States, quere.</p> <p>[Cited in Re Kelley, Case No. 7,655; Re Stupp, Id. 13,503; Castro v. De TJriarte, 16 Fed. 90.]</p> <p>2. The warrant for the arrest of the alleged fugitive, in this case, held sufficient.</p> <p>[Cited in Ex parte Lane, 6 Fed. 36.]</p> <p>3. In describing the offence charged, the warrant may follow the words of the treaty.</p> <p>[Cited in Castro v. De TJriarte, 16 Fed. 95.]</p> <p>4. It is not necessary that the complaint on which the warrant is issued should set forth the issuing of a mandate by the executive for the arrest of the fugitive.</p> <p>5. If such mandate is a necessary prerequisite, it is sufficient for it to describe the offence charged, in the very terms of the treaty. The complaint, in this case, held sufficient.</p> <p>[Cited in Re Adutt, 55 Fed. 378.]</p> <p>6. It is not proper to resort to a habeas corpus, to review, during the progress of proceedings before the commissioner, decisions on questions as to evidence, made by the commissioner.</p> <p>7. In extradition cases, the commissioner may, in his discretion, grant reasonable adjournments. in the course of hearing the evidence, to enable testimony to be produced.</p> <p>[Cited in Re Wadge, 15 Fed. 866; Re Ludwig, 32 Fed. 774.]</p> <p>[NOTE. The case was heard by the commissioner on April 24. 1873. and the prisoner discharged for insufficiency of evidence, but he was held by the marshal upon a second warrant of arrest, issued upon a new executive mandate, which had been issued in the meanwhile. Upon this new warrant he was committed, and subsequently a warrant for his surrender to the agents of the British government issued. Thereupon the prisoner sued out a new writ of habeas corpus, which was heard in this court upon June 3, 1873: and the prisoner again remanded. Case No. 8,772.]</p>

<p>Case No. 8,772.</p> <p>Extradition' — Second Warrant or Arrest — Foreign Warrant and Certificate — Habeas Corpus — Certiorari — Sufficienct of Evidence before Commissioner.</p> <p>1. Observations on the power of the court to issue a writ of certiorari, in a case under a treaty providing for the extradition of fugitives, and on the effect of a warrant of surrender, issued by the president, as a supersedeas of such a writ.</p> <p>2. While the relator was lawfully held in custody. under a valid warrant of arrest, in an extradition c-ase. and the inquiry thereunder was being proceeded with, a second warrant, on a new complaint, for a distinct offence, for his extradition, was issued. Afterwards, he was discharged from the arrest under the first warrant, for want of sufficient evidence to justify his commitment, and he was thereafter arrested under the second warrant: Held, that the latter arrest was not invalid.</p> <p>S.Under section 2 of the act of August 12. ISIS (0 Stat. 302), as supplemented by the act of .Tune 22, 1SG0 (12 Stat. 84). copies of depositions taken in London, before the lord mayor of London, and certified under his hand to be copies of the depositions on which he issued a warrant of arrest against the person charged, and further certified by the minister of the United States in Great Britain to be so authenticated as to entitle them to be received for similar purposes by the tribunals of Great Britain, are competent evidence in an inquiry under a warrant of arrest, in an extradition case.</p> <p>4. A court, or a judge, issuing a writ of habeas corptis, in an extradition case, does not sit as an appellate tribunal, to review the proceedings which have taken place before a commissioner, as upon allegation of error.</p> <p>[Cited in U. S. y. Brawner, 7 Fed. 87; Re AVadge. 15 Fed. 8CG; Ex parte McCabe, 46 Fed. 3GG.]</p> <p>5. If the commissioner acquired jurisdiction of the subject-matter, and of the prisoner, the prisoner may be legally hold, although the commissioner. in conducting the inquiry, committed an error in the reception of evidence.</p> <p>6. The adjudications in this circuit considered, as to the power and duty of the court, on habeas corpus and certiorari, to entertain the question of the sufficiency of the evidence before the com'missioner, to warrant the commitment for surrender.</p> <p>[Cited in Ex parte Perkins, 29 Fed. 90S; Re Ezeta, G2 Fed. 982.]</p> <p>7. No case has held that, because some evidence was introduced which was not legal or competent. or because the court, upon a review of the evidence, was of opinion that it would have come to a different conclusion upon the evidence, therefore the proceedings were illegal, and the prisoner should be discharged.</p> <p>[Quoted in Re Stupp, Case No. 13,563.]</p> <p>NOTE. On the 23d of May, 1873, writs of habeas corpus and certiorari, on the relation of Macdonnell, were issued by Mr. Justice Puncher, of the supreme court of New York, directed to the United States marshal and to Commissioner Gutman, returnable at the court of oyer and terminer, June 4th, 1873. On that day, the marshal did not produce the body of the relator, but, through his counsel, made return, that he held the relator under a warrant issued by Commissioner Gutman, pending proceedings for his extradition, on the application of the British government, charged with the crimes of forgery and the utterance of forged paper; that such proceedings had been made the subject of review by the United States circuit court, on writs of habeas corpus and certiorari; and that, after such review, the relator had been remanded by the federal court to the custody of the marshal, to await the issuing of the warrant of the executive for his surrender to the British government. After hearing Charles W. Brooke on behalf of the relator, and James C. Carter on behalf of the marshal, Mr. Justice Davis delivered the decision of the court, orally, as follows: “The application now made is in the nature of a motion to regard the marshal as in contempt for not making the proper return to the writ by producing the prisoner. Although counsel do not put it in that form, it amounts substantially to that; and the question is, whether, upon the proceedings and the return now before the court, it is the duty of the court to issue an attachment, under the statute, to compel the marshal to produce the body of the prisoner. There is no doubt whatever of the power of the state courts, in all cases where persons are deprived of their liberty within their territorial jurisdiction, to issue the writ of habeas corpus, for the purpose of inquiring into the cause of the detention; and that power is applicable to all cases where it does not appear upon the face of the petition for the writ, that the case is one either extra-territorial, or exclusively within the jurisdiction of some other tribunal. I assume that the petition in this case did not show to Mr. Justice Fancher. who issued this writ, any fact clearly establishing that this prisoner was held by a jurisdiction which precluded the state court from investigating the cause of detention. It, therefore, became the duty of the judge to issue the writ, and it became the duty of the marshal so far to obey it as to make known to the court, in proper form, over his official signature, the cause of the detention of the prisoner by himself.</p>

<p>Case No. 8,775.</p> <p>Bankruptcy — Preference— Purchase by Creditor — Knowledge op Insolvency — Equal Distribution in Bankruptcy.</p> <p>1. When a creditor has reasonable cause to believe his debtor insolvent, purchases goods of him, and such debtor makes the sale with a view of giving a preference, the transaction is void, and the assignee in bankruptcy of such insolvent may. recover the value of the goods from such creditor.</p> <p>[Cited in 'Graham v. Stark. Case No. 5,676: Martin v. Toof, Id. 9,167.]</p> <p>2. The sale cannot be declared void unless the purchaser had reasonable cause to believe the seller to have been insolvent when he made the sale, and reasonable cause means a state of facts which would put a prudent man upon inquiry as to the condition of the person from whom he purchases.</p> <p>[Cited in Singer v. Sloan, Case No. 12,899.]</p> <p>3. Neither local inclinations nor the employment of the process of state courts can longer be successfully employed to thwart or defeat the equal distribution of an insolvent debtor’s estate among all his creditors, regardless of their locality.</p>

<p>Case No. 8,776.</p> <p>Bankruptcy — Composition Meeting — Mistakes —Second Meeting.</p> <p>As a general rule a bankrupt should abide by the decision of a composition meeting duly held: but if it clearly appears that the object of the meeting failed by reason of the mistakes or mis-instructions of attorneys for creditors, the court may order a second meeting.</p>

Assumpsit on several counts. (1.) On a special agreement for excavating and embanking sections Nos. 11 and 12 of the Blackstone canal, at 10 cents per cubic yard for excavation, &c. &c. (2.) For labour and services generally. (3.) For work and labour by a person as agent of the plaintiff [John McDowell], There were several other counts, which the plaintiff discontinued before the trial. Plea, the general issue.

Question certified by Mr. Register Fessen-den. Can notaries public lawfully take the acknowledgment of creditors to their powers of attorney relative to bankrupt proceedings?

Rule to show cause why the costs of the master should not be paid by the defendants.

The Southern Minnesota Railroad Company is in the hands of a receiver, appointed by this court, November 7th, 1872, upon the bill of complaint of Samuel B. Ruggles and Albon P. Mann, trustees, to foreclose certain mortgages executed to them in trust to secure the payment of its bonds.

This was a bill for an injunction to prevent Betsey McIntosh from receiving, and the secretary of the treasury and the second comptroller from paying, to her more than one half of her claim of $7,680, awarded to her under the Cherokee treaties of 1S17 and 1819.

<p>Case No. 8,783.</p> <p>Bankruptcy — Partnership — Joint and Separate Estate — Assets Exhausted in Costs —Payment Pari Passu.</p> <p>1. When a debt from one partner to a bankrupt firm wTas incurred by the consent or privity of tlie other partners, proof of the joint creditors against the separate estate will not be admitted in a court of bankruptcy.</p> <p>[Cited in Re Lloyd, 22 Fed. 91.]</p> <p>2. When all the assets of a bankrupt firm are expended in the payment of costs, and there is no fund to be divided among the firm creditors, the firm and individual creditors must be paid pari passu out of the separate estate of each partner.</p> <p>[Cited in Re May, Case No. 9.328: Re Slocum. Id. 12.951; Re Hamilton, 1 Fed. 812; Re West. 39 Fed. 203.]</p> <p>[Cited in Harris v. Peabody, 73 Me. 270.]</p> <p>3. 'The fund applicable to and used in the payments of costs does not constitute a joint estate within the fair meaning of the bankrupt act [of 1807 (14 Stat. 517)].</p> <p>[For an appeal to the circuit court from subsequent proceedings, see 4 Fed. 13.]</p>

• [Appeal from the district court of the United States for the Southern district of New York.] The libel in this case was filed by the owner [William McFaddenl of the barge Davis Archer, to recover damages occasioned by the barge being run into a dock while in tow of the steamboat. The court below declared the steamboat free from fault, and dismissed the libel, from which decree the libelant appealed.

[Appeal from the district court of tlie United States for the district of Pennsylvania.] An armed vessel of war, called the Balaou, No. 5. sailing under flag of Napoleon, emperor of France and king of Italy, commanded by the Sieur Bigon, under a commission from and said to belong to that emperor, and to be in his actual service, arrived in the port of Philadelphia, in the month of- last.

<p>Case No. 8,785.</p> <p>Bankruptcy — Assignee’s Bond — General— Sureties — Special—Wife as Surety.</p> <p>1. On motion of creditors for an order to have assignee file a new general bond, of which two of the sureties had become bankrupt and the third surety was his wire, conditioned that he would faithfully discharge the duties of the office in every case in which he was or should become as-signee, held, that a general bond for such purpose is not authorized by the bankruptcy act [of 1807 (14 Stat. 517)], but that an assignee must give special bond in each ease where a bond is necessary.</p> <p>2. By the laws of Texas a wife cannot charge her separate estate by becoming surety on such a bond, and nothing to its worth is added by her execution thereof.</p>

<p>The facts are sufficiently stated in the opinion. The petitioners introduced no testimony to prove Mrs. McFarland a partner.</p>

<p>Case No. 8,787.</p> <p>Bankruptcy— Discharge — Prior Fraud.</p> <p>[Fraud consummated under an assignment for benefit of creditors before, and not in contemplation of, the passage of the act, does not bar a discharge.]</p>

<p>[This was an action at law by Henry J. McFarland against Charles Goodman and others.]</p>

<p>[This was a bill for an injunction by Mc-Farlane against Mary Griffith.]</p>

<p>[This was an application under the tenth section of the patent act of 1793 for a rule to show cause why the patent granted June 29, 1S21, to Thomas Bryan and William Biy-an should not be repealed.)</p>

<p>Case No. 8,794.</p> <p>Bankruptcy — Petition Filed in Another District — Powers and Jurisdiction — Process — Composition — Bankrupt as Custodian — Right to Sue.</p> <p>_ 1. Every district court in the United States has jurisdiction and authority to make all lawful orders and decrees in bankruptcy, although the original petition in bankruptcy was filed in another district, provided that the relief asked is such as cannot be given by the district court where the original petition was filed, because the persons or property sought to be affected by the order or decree are bey end the reach of its process, and that they are within the reach of the process of the district court whose aid is invoked.</p> <p>[Cited in Be Tifft, Case No. 14,034.]</p> <p>2. An order made in a composition proceeding appointing the bankrupts custodians of tlieir proj>-orty does not put them in the position of an as-signee. so that they can maintain a suit under section 4979 [Rev. St.].</p> <p>[Cited in Be Michel, 6 Fed. 709.]</p> <p>3. The complainants, who are residents of the state of Louisiana, filed a petition in bankruptcy in that district, and proposed a composition, which was accepted and confirmed, and the complain-anrs appointed custodians of their property, and authorized to protect and collect the same for the purimses of the composition and for the benefit of their creditors. The names and address of the defendants. H. & Co., and the amount of the debt due to them, were entered in the schedule annexed to the petition for composition. Within four months prior to the commencement of the proceedings in bankruptcy, the defendants. H. & Co., who were residents of the state of New York, commenced an action against complainants by publication, and attached a debt due to them from M. & Co., also residents of New York, of a less amount than their claim, and subsequently recovered judgment in said action. In a suit brought to obtain an injunction against H. & Co. and the sheriff to restrain their proceedings on the judgment, and for an accounting and payment of the debt by M. & Co., held, that complainants were not entitled to relief in injunction; that, as no assignee has been appointed, the lien of the attachment continues, and is preserved by the bankrupt law [of 1867 (14 Rtnt. 517)]; and that while H. & Co. are bound by the composition as to their claims in personam against the complainants. their rights in rem against the property attached are not affected or impaired thereby.</p> <p>[Cited in Be Michel, 6 Fed. 710.]</p>

Ejectment. On the trial it appeared that the land in controversy was part of a larger tract known as the “Mount Holly Iron Works Estate, which the Farmers’ and Mechanics’ Bank in 1846 conveyed to Kropff, who was the plaintiff's grantor, and Geisse for 821,000; that Kropff and Geisse executed a purchase-money mortgage of the said estate to their vendor; that in 184S Kropff obtained a warrant from the land office for the part in dispute in the present case, as land “unimproved…

This was a revisory petition, under the second section of the bankrupt act, filed by Samuel A. Jewett, a purchaser of real estate at assignee’s sale, to set aside an order of the district court, authorizing Robert Corbett, a previous judgment creditor of tlie bankrupts, to proceed upon his execution, and satisfy his judgment out of the property sold by the assignees to Jewett.

<p>This was a libel in personam filed by John McGinnis, against Henry Carlton. The libel-lant, in his libel, advanced a claim for $55. On the hearing before the commissioner, to whom the cause was referred, the respondent claimed a deduction of $10. the propriety of which was admitted by the libellant The claim, as litigated before the commissioner, was thus reduced to $45 only. Upon that claim the libellant prevailed. On taxation of costs, however, plenary costs were taxed in his favor, on the ground that the amount of his claim, proceeded upon by the libel, exceeded $50. The respondent now appealed from this taxation.</p>

<p>Case Wo. 8,800.</p> <p>'Seamen’s Wages — Sheriff’s Sale — Minors — Right of Father to Maintain Action — Renunciation — Watchman—Maritime Liens.</p> <p>1. A sheriff’s sale of a steamboat does not discharge the lien of sailors’ wages. Otherwise, if the wages are due to the owner of the boat.</p> <p>2. A father may maintain an action, in admiralty, for the wages of his minor children, but it is a right which maybe renounced or forfeited.</p> <p>3. He may renounce it by voluntarily allowing his child to have the exclusive use of the fruits of his own industry; or he may forfeit his right by neglecting to perform those duties which are the foundation of that right.</p> <p>4. A watchman, not during the navigation of the vessel, nor when she had cargo on board, but exclusively in a home port, at the Marine Railway, and when she was laid up for repairs, has no lien for his wages.</p> <p>[Distinguished in Wishart v. The Jos. Nixon, 43 Fed. 928.]</p> <p>5. This is not maritime service. It is the work of a landsman, rather than a sailor. It is completed before the voyage is begun, or after it is ended. It is, therefore, not a maritime contract. which can be enforced in a court of admiralty.</p>

<p>Case Wo. 8,801.</p> <p>Apmiraltt Jurisdiction — Ohio River — Salvage —Temporary Master — Peril — Escape— Cause op Escape — Compensation.</p> <p>1. This court has admiralty jurisdiction over the Ohio river.</p> <p>[Cited in Seven Goal Barges. Case No. 12,677.]</p> <p>2. Where a steamboat is in actual peril, and one is requested to take charge of her as master, and save her if possible, with no stipulation as to time or wages, the fact of acting as master, not having been so before, will not deprive him of the right to claim salvage.</p> <p>[Cited in Spencer v. The Charles Avery. Case No. 13,232; The Connemara, 108 U. S. 358. 2 Sup. Gt. 757.]</p> <p>3. The fact of peril is to be ascertained from the circumstances surrounding the boat at the time when the salvage service commences, and the fact of escape is not to be taken as proof that there was no peril.</p> <p>4. The fact that the exertions of the salvor did not save the boat, she being saved by the particular manner in which the ice broke up, does uot deprive him of the merit of a salvor, if he encountered the danger, and did all that could be done under the circumstances.</p> <p>5. There is no fixed rule of compensation. It must depend upon the particular circumstances. It may be a per centage upon the property saved, or a fixed sum to be assessed pro rata upon the boat and cargo. In this case the latter course is adopted.</p>

On motion by the plaintiff [John McGin-nity] to remand the cause to the state court because it was improperly removed to this court. The removal was ordered by the state court upon the petition of Francis A. White, one of the defendants. The record shows that the plaintiff commenced his suit in the state court, February 2Sth, 1870, demanding, in his petition, of the defendants, five in number, as copartners, 81,000 for work and labor.

[In error to the district court of the United States for the district of Maine.] This was an action of debt by the United States, to recover penalties and duties for certain goods unlawfully imported into the United States, and bought by the defendant [James McGlinchy], knowing that the same were so imported.

Petition by the bankrupt [James McGlynn] to set aside the appointment of assignees, because the first meeting of creditors was held on the day appointed by the governor of Massachusetts, and recommended by the president of the United States, as a day of general thanksgiving, alleging that seventeen creditors were named in the schedules, to whom were owed $3,451. and that only six of the creditors attended the meeting, and the aggregate of debts proved was $2,154.13; that the…

<p>Case No. 8,805.</p> <p>Bill of Laiung — Bemürrage— Reconsignment— Usage — Varying Contract.</p> <p>1.A cargo of coal, shipped at Schuylkill Haven. was brought to New York under a bill of Lading, which contained these -words: “With shipper's reconsignment option.” It provided also for the payment of demurrage “if the cargo be not received within four working days after notice of arrival.” On the arrival of the boat at New York, the master gave notice of her arrival to the consignee, who directed him to proceed to New Haven and deliver his cargo. The master denied the right of the consignee to rec-onsign him to New Haven, and refused to go there; but fifteen days after, he sent the consignee writtenno-tice that he was ready to discharge the coal at such place as the shipper should name, according to tlic bill of lading; whereupon the consignee in writing again directed him to go to New Haven, and sent an order for the towage of the boat. The master accepted this reconsignment, and his boat was towed, at the expense of the consignee, to New Haven and back. At New Haven the master sought, by retaining his cargo, to comp'd the payment of demurrage for his detention in New York, but finally delivered his cargo. His boat was detained, up to the time of her return to New York, for twenty-six days beyond the four days specified in the bill of lading, and the master brought suit against the consignee to recover demurrage for that time. On the trial the defendant offered evidence that by usage the option mentioned in the bill of lading is exercised by the consignee as well as by the shipper. Held, that such usage would be a varying of the written contract and was not admissible in evidence.</p> <p>2. The master, by accepting the reconsignment of the consignee, waived his right to object; such option could only be exercised by the shipper.</p> <p>3. The master therefore could not recover de-murrage for the period while he was refusing to go to New Haven, or while going there, or while refusing to deliver his cargo at New Haven, and the libel must be dismissed.</p>

[This was an action by Sarah K. McGowan against the Charter Oak Life Insurance Company to recover the amount of a policy on the life of her deceased husband, William McGowan.] William McGowan, of Steubenville, Ohio, the husband of the plaintiff, had a policy upon his life in the defendant company to the amount of $2.00U, which was taken out in 1806. The premium was payable annually on the first day of June.

<p>Case No. 8,808.</p> <p>Bankruptcy— Rent op Premises while in Possession op Marshal.</p> <p>At the commencement of the bankruptcy proceedings. the bankrupts were occupying premises under a lease. The marshal, under the warrant, took possession of the bankrupt’s poods on such premises, and they remained there in possession of the marshal till the appointment of the as-signee. Held, that, on the facts of the case, the owner of the premises was not entitled to be paid out of the fund, for such occupation.</p> <p>[Cited in Re Hamburger, Case No. 5,970; In re Ives, Id. 7,110.]</p> <p>[See Bailey v. Loeb. Case No. 739.]</p>

[This was a libel by M’Grath against the sloop Candalero and Henri Hervieux for damages for the illegal seizure of the schooner Polly and her cargo.]

[This was a libel by M’Grath against the sloop Caudalero and Henri Hervieux for damages for t lie illegal seizure of the schooner Polly and her cargo. The court decided in favor of libelant (Case No. 8,809), and the cause is now heard on a motion to review and to discharge the property attached.]

Covenant upon a policy of insurance on 12,000 dollars, for the freight of the Hercules from New-York to Hamburg. She was lost near the port of her destination, and the cargo, except a few articles, totally perished. The insurance company, upon notice of the misfortune, adjusted the loss according to the following account, and offered to pay the balance, which the plaintiff refused. Statement of the Account.

<p>Case No. 8,812.</p> <p>Collision — Boat Astekn — Right op Wat — Competent Watch.</p> <p>1. A boat astern attempting to pass one that is ahead, is held to stricter vigilance and greater precaution than are required of the latter.</p> <p>2. The boat ahead is under no obligation to give way or to change her course to facilitate the passage of the boat which is astern, and the latter, having a choice of the time and place to pass, incurs ail the risk of the attempt.</p> <p>3. This principle applies with great force and stringency when the boat making the attempt to pass is lightly laden and easily controlled, and the other is moved with difficulty.</p> <p>4. To entitle the libellants to indemnity for their loss, they must not only show that their adversary is in fault, but that in the management of their boat there was no material error to which the collision can be charged.</p> <p>5. The absence of a competent and vigilant watch, constantly employed to assist and advise the piiot in his duty, is prima facie evidence of fault in the boat thus deficient.</p> <p>[Cited in The Ancon, Case No. 348.]</p>

<p>Case No. 8,813.</p> <p>Bankruptcy — Proof op Debt — Reinstating Judgment — Surplus of Estate.</p> <p>1. K. recovered judgment against McG., issued execution and collected the amount of the judgment. McG. being afterwards put into bankruptcy, his assignee brought an action against K. and recovered back from him the amount he had collected under his judgment. K. thereafter filed a proof of debt against the estate in bankruptcy, on the judgment, which was objected to by the assignee. It appeared that the assignee had enough money in his hands to pay all the other creditors in full and leave a surplus. Held, that the proof of debt filed by K. might stand as against the objection of the assignee.</p> <p>2. The effect of the recovery of the judgment by the assignee against K.. was to reinstate K.’s judgment as against MeG., and K. would be entitled to the surplus, to the amount of his judgment, after paying all other creditors in full.</p>

[This was a bill in equity by Edward McGuire against Richard C. Briscoe. Heard’ on motion for costs on overruling a demurrer.] See bill, answer and demurrer as given in this opinion and that of the decision of Judge MORSELL, setting aside a sale at auction under a deed of trust

<p>[This was a bill in equity by Thomas M. McGuire against Harvey A. Eames.]</p>

[Appeal from the district court of the United States for the Northern district, of California.] This is a proceeding in rem for a violation of a passenger contract, arising out of the torts of the master and mariners of the ship. Exceptions were taken to the jurisdiction of the district court of the United States for the Northern district ' of California, where the libel was filed.

<p>Case No. 8,816a.</p> <p>Taxation’ — Mode op Cou.ectisg — Non-Residests —Fees Improperly Received — Tax Coi.lectok.</p> <p>1. The act of 1825 concerning taxes, requiring the “inhabitants” of each township to attend at the place of holding elections, at such time as the sheriff shall designate, to pay their taxes to him, does not apply to non-residents of the state or the township, but only to taxable inhabitants of the township.</p> <p>2. Penalties may be recovered for fees improperly received by a sheriff and collector.</p>

[This was an action at law by Alexander McGunnigle, Lee & Johnson, use of Johnson & Lee, against Edward Simmes.] Gillespie had obtained from Eaton and Hub-ley, commissioners under the Cherokee treaty, a certificate of $2,506. On this, $250 had been paid out on Gillespie’s order, leaving due on said certificate $2,256.

<p>[In the matter of John A. Machado, a bankrupt.]</p>

[This was a hearing at chambers upon the -return of a writ of habeas corpus issued in behalf of the petitioner, John H. Mclllwee.]

<p>[In the matter of James Macintire, a bank-nipt.]</p> <p>In this case a register in bankruptcy certified that the first meeting of creditors was held July 11th, at which notice was given of an application next day for an order to examine the petitioner on behalf of a creditor, and the meeting was duly adjourned to July 12th. On that day, the petitioner attending, a creditor who had filed proof of his claim applied for an order, in pursuance of said notice,' for the examination of the petitioner on behalf of the creditor at that time, the petitioner not objecting to the time, but insisting that the creditor must pay the register’s fees for the order. The creditor refused to pay any fees, insisting that they must be paid out of the deposit of fifty dollars made by the petitioner with the clerk. The register proposed to grant the order on payment by the creditor of one dollar as the proper fee. At the request of the creditor the register certified the question for the decision of the court. The register, in his certificate, referred to that portion of the fourth section of the bankruptcy act, which provides that the fees of the registers, as established by the act, and by the general rules and orders required to be framed under it, shall be paid to them by the parties for whom the services may be rendered in the course of proceedings authorized by the act. He also referred to that part of rule 29 of the general orders in bankruptcy which provides that the fees of the register shall be paid or secured in all cases, before he shall be compelled to perform the duties required of him by the parties requiring such service. He also stated it to be his opinion that the granting of the order for the examination of the bankrupt having been required by the creditor and not by the bankrupt, the former and not the latter ought to pay the fees for the order. On the part of the creditor it was claimed, that such fees as are connected with the personal examination of the bankrupt are governed by the 47th section of the act; that that section says that such fees shall be paid out of the estate, and have priority over all other claims; that the court may, under rule 29 of the general orders in bankruptcy, exercise its discretion as to the payment of the whole or a part of the fees out of the fund in court; but that, without such direction from the court, the register must look to the fund in court for his fees in such a case as the present; [that the bankrupt is compelled by that section to deposit fifty dollars for that purpose; that that section contemplates that the sendees of the register in the examination of the bankrupt are services required by the bankrupt, and not by the creditor; that under the 47th section, the register was entitled to charge three dollars for the adjourned meeting of creditors on the 12th of July, such fee to be paid by the bankrupt; that such fee was the only fee the register had a right to charge, there being no provision by which he could exact one dollar from the creditor for entering an order for the examination of the bankrupt; that no such order was required; that there are services of the register specified in the 4th section of the act, which may be required of a creditor, and for which he should pay; but that the act does not contemplate that a creditor shall pay for the register’s services in examining the bankrupt for the purpose of seeing whether he has made a proper exhibit of his affairs, when he calls a meeting of his creditors for that purpose; that under the 47th section the bankrupt must pay the register for that service, the three dollars for the meeting of creditors, and also the fees allowed by law for taking his deposition; that section 2G of the act requires the bankrupt at all times to attend and submit to an examination on oath upon all matters relating to the disposal of his property, &c.; that the fees for such examination are provided for by section 47 of the act. The views urged for the creditor are thus fully stated, in order that it may be seen that the question has been considered by the court in all its aspects.] 2</p>

In this ca.se a discharge 2 was granted to the bankrupt [Charles H. Melntire] on the 24th of February, 1868. About a month afterward, this petition was presented to the court, in behalf of a creditor, praying that the discharge might be set aside, and that the creditor might be allowed to file amended specifications of opposition to the discharge.

A paper, acknowledged to have been written by the late Mr. Alexander Mclntire, and purporting to be his last will and testament, but without date or signature, was presented to the orphans’ court for probate. The case having been argued by the counsel for and against the paper as the will of the deceased, the judge gave the following as the judgment of the court.

<p>Case No. 8,824.</p> <p>Juror — Oath—Affirmation.</p> <p>Juror not permitted to affirm.</p>

<p>In bankruptcy.</p>

Assumpsit upon W. Wilson’s note, indorsed by the defendant [James Kennedy], to the plaintiff, as assignee of Gillis’ estate. 1st count on the assignment of the note, setting forth that the maker, W. Wilson, was insolvent at the time of the suit brought 2d count for money had and received.

Debt on an accepted order. Nil debet and issue. prayed the court to instruct the jury that the acceptance of the order not being dated, and the order being dated September 21th, 1794, and no proof being given of the date of the acceptance, they ought to presume that the acceptance was on the day of the date of the order, and therefore barred by the act of limitations; the writ not being issued until the 5th of September, 1801.

The plaintiff [Mclver’s lessee] relied upon a grant from the state of North Carolina to Stokeley Donelson and William Tj'rrill for forty thousand acres of land, dated in January, 1795. On the part of the defendant a grant was introduced covering the. land in contest from the state of North Carolina to John Mebane, dated in the year 1800.

[Appeal from the commissioner of patents.] [Application by John S. Mackay for letters patent for an improvement in mending firemen’s hose. The application was denied. Applicant appeals.]

Rule for judgment for want of a sufficient affidavit of defence. Assumpsit on a promissory note made by defendants to the order of one Zohn and by him indorsed to the plaintiff.

<p>[In the matter of John Murdock Mackay and John Neilson, bankrupts.]</p>

[This was an action by William C. McKay against James A. Campbell to recover a certain penalty provided by an act of congress for having been wrongfully prevented from voting. The case is now heard on the defendant’s demurrer.]

<p>Case No. 8,838.</p> <p>Bankruptcy — Discharge—Proper Books op Account.</p> <p>Where discharge was refused bankrupt for failing to keep proper books of account.</p>

<p>Case No. 8,840.</p> <p>Citizenship — Common Law — Persons Born in Oregon, Between ISIS and 1846 — Indian Tribes Independent Communities — XIV Amendment — Issue op a British Subject and Chinook Woman.</p> <p>1. By the common law a child born within the allegiance of the United States, is bom a subject thereof, without reference to the political status or condition of its parents.</p> <p>[Cited in Ex parte Chin King, 35 Fed. 355.)</p> <p>[Cited in New Hartford v. Town of Canaan, 54 Conn. 41, 5 Atl. 362.)</p> <p>2. By article 3 of the convention of October 20, 1818 (8 Stat. 249), between the United States and Great Britain, it was agreed that the Oregon territory should “be free and open to the vessels, citizens and subjects of the two powers;” which convention was continued in force until the convention of June 15, 1846 (9 Stat. 869); Meld, that during the period of such joint occupation, the country, as to British subjects therein, was British soil, and subject to the jurisdiction of the king of Great Britain, but as to citizens of the United States, it was American soil and subject to the jurisdiction of the United States; and that a child bom in such territory in 1823 of British subjects, was born in the allegiance of the king of Great Britain, and not that of the United States.</p> <p>[Cited in Town v. De Haven, Case No. 14,113.)</p> <p>[Cited in State v. Boyd, 31 Neb. 725, 48 N. W. 739, and 51 N. W. 602.)</p> <p>3. The Indian tribes within the territory of the United States are independent political communities, and a child of a member thereof, though bom within the limits ¿>f the United States, is not a citizen thereof, because not bom subject to its jurisdiction.</p> <p>[Cited in U. S. v. Osborn, 2 Fed. 60; Elk v. Wilkins, 112 U. S. 109, 5 Sup. Ct. 49.)</p> <p>4. The fourteenth article of the constitution of the United States, commonly called the fourteenth amendment, is only declaratory of the •common law rule on the subject of citizenship by birth, and therefore does not include Indians •or others not born subject to the jurisdiction of .the United States.</p> <p>5. In 1823. and prior thereto, the Chinook Indians were an independent political community, inhabiting the Oregon territory, at and near the mouth of the Columbia river; and in said year the plaintiff was born at Fort George (now Astoria) of a father who was an alien and a British subject, and a mother who was a Chinook Indian; Held, that the plaintiff is either to be deemed to follow the condition of his father, and considered a British subject, or that of his mother, and considered a Chinook Indian, but that in either case he was not born a citizen of the United States.</p> <p>6. At an election held on June 6, 1870, at East Dalles precinct under the laws of Oregon, the plaintiff offered to vote, and his right to do so being challenged, offered to take the prescribed oath as to his qualifications as an elector, but the defendant then being one of the judges of election at said polls, refused to administer said oath to the plaintiff, as he was required to do by the law of the state, on the ground that plaintiff was not a citizen of the United 'States, but a half breed Indian; Meld, that whether such refusal was wrongful or not, under the state law, the plaintiff not being a citizen of the United States, is not within the purview or protection of article 15 of the constitution of the United States, or the act of congress, entitled “An act to enforce the rights of citizens of the United States, to vote in the several states of the Union, and for other purposes” (16 Stat. 740), and therefore cannot maintain an action against the defendant on account of such refusal, to recover the penalty given by section 2 of said act of congress.</p>

<p>[This was a bill in equity by Jesse McKay against Elizabeth J. Carrington.]</p>

This was an action of ejectment to recover possession of certain land situated in the city of St. Louis, forming part of a tract which was located under New Madrid certificate No. 159, dated November 16, 1816, in favor of James Smith, upon which a patent was issued May 2S, 1827, to said Smith or his legal representatives.

<p>[This was an action at law by Nathaniel McKay against Edwin C. B. Garcia.]</p>

Case, by [Nathaniel McKay and others] ■creditors of an insurance company, against a stockholder [William Hill], charged with having withdrawn the capital of the corporation, and thereby under Rev. St. Me. 1857, c. 46, § 24, become liable for corporate debts. The case was tried upon the general issue before the court without a jury, the parties having given the usual stipulation.

Bill in equity [by David McKay against John B. Wooster and others,] to restrain the infringement of a patent right, by use and sale of a patented case for the transportation •of eggs. ,The following facts appear from the stipulation of the parties filed in the case: On February 20, 1S67, a patent was duly issued to J. L. and G. W. Stevens, of San Francisco, for an “improvement in cases for transporting eggs.” In August, 1S72, said patentees, by deed, granted and assigned to…

The petition is in these words: “Your petitioner, A. W. McKean, would respectfully represent to the court that he is a resident of the state of New York; that he is a commercial traveller representing the bouse of Kelly & Co., in the town of Rochester; that a fewr days ago he came to the city of Richmond in the interests of his house; that on the 17th day of April, 1878, he was arrested by the police of the city upon suspicion of being a fugitive from justice in that he has…

[Libel in rem by Frederick McKee, owner of the Pilot, against the Pearl.] The schooner Pilot was beating down Detroit river in broa'd daylight, when near the head of Bois Blanc island, and close hauled on the starboard track, she was struck on her starboard side by the steamboat Pearl ascending the river, both vessels being near the buoy on the Canada shore.

This suit [by Logan McKee] was for .collection of interest coupons from bonds proved to have been executed by the presiding justice and clerk of the county court, and substituted, with the knowledge of the county agent, for other bonds regularly Issued about seven months previously, which were surrendered and destroyed at the time of the substitution. Plea, non est factum. Reply (1) in denial; (2) estoppel.

<p>Case No. 8,850.</p> <p>Mexican Land Grant — Subsequent Performance of Conditions — Occupation and Inhabitation.</p> <p>The objection by the board met by further testimony taken in this court.</p> <p>McKEE (UNITED STATES v.). See Cases Nos. 15,683-15,680.</p>

<p>Case No. 8,853.</p> <p>Trespass Vi et Armts — Evidence Thereunder —Quare Clausum Fregit.</p> <p>1. In a suit to recover for injury done to personal property the plaintiff must show what property was injured, and that the defendant participated in said injury, either in person or by his advice and counsel.</p> <p>2. Id an action of trespass vi et armis the plaintiff cannot recover for any damages done to real property.</p>

In bankruptcy. Petition by the creditors of Jacob C. Baker, charging him with an act of bankruptcy in the non payment of his negotiable promissory note for the period of forty days after it fell due, the same having been made and passed by him in the business of a trader. Baker answered,, denying that he. was a trader when he gave the note, or that'the same was his own comnrarcial paper, or that he made and passed the same in the business of a trader.

The plaintiff [Johaimah McKenty], adminis-tratrix of the estate of Henry McKenty, deceased, brought suit upon a policy issued on the latter’s life by the defendant. The following is a copy of the policy: “Universal Life Insurance Company, of New' York.

This was a bill filed by the legatees of William J. Scott, residing in Great Britain, against [G. W.] Anderson, the executor, for an account, and for a change of trustee.

<p>Case No. 8,857.</p> <p>Seamen’s Wages — Master’s Contract — Illegal Vovage — Navigation Act — Damages for Nonperformance.</p> <p>[1. A ship is bound by her master’s contract with seamen for any voyage for which he has authority to engage her.]</p> <p>[2. Foreign seamen, unwittingly shipping for a voyage wherein the navigation acts forbid their employment, may recover in rem damages resulting from nonperformance.]</p>

<p>In bankruptcy.</p>

These were motions (1) to vacate the order to show cause why [James A.] McKibben should not be adjudicated a bankrupt, for the reason that, at the time of granting the order, sufficient grounds did not exist, and no proper and lawful showing was made therefor.

[Appeal from the district court of the United States for the district of Maryland. [This was a libel in personam by William McKim and Haslett McKim against Henry Kelsey and Andrew Gray. The district court rendered a decree dismissing the libel, without costs. Libellants appeal.]

[Appeal from the district court of the United States for the Southern district of New York. [This was a libel by Robert H. McKibbin against the steamer C. Vanderbilt, to recover damages resulting from a collision. The district court rendered a decree for libelant (case not reported) in the sum of $7,020.53, from which claimant appeals.]

The ease states, that on the 27th of November, 1803, the plaintiff effected insurance in the Philadelphia insurance office, on goods on board the Ann, at and from Baltimore to Jeremie, with liberty to touch at one other port at the West Indies, and at and from thence back to Baltimore; 12.000 dollars insured.

<p>Case No. 8,864.</p> <p>Bankruptcy — Adjudication—Setting Aside— Jurisdiction.</p> <p>1. A petition in bankruptcy against McK., regular on its face, was filed. A proper case was presented to the court for service on him by publication. Such service was made, and, on the return day, proof of due service being presented, and the debtor not appearing, an adjudication of bankruptcy was made. A petition was. after-wards presented to the court by R., representing that he was a creditor of McK., and had not been named as such in the petition in bankruptcy, n nd that the debts of McK. were much greater than was alleged in that petition, and that the requisite number and amount of creditors had not joined in the petition. On this petition R. prayed that the adjudication of bankruptcy and all the subsequent proceedings might be set aside and vacated. McK. also at the same time applied, on affidavits, for an order that the proceedings be vacated, or that he be allowed to file an answer. His affidavit set up that he had no knowledge of the filing of the petition, and that the petition was not signed by the requisite number and amount of creditors, and that the petitioning creditors knew it: Sdd, that the court having been satisfied on the evidence before it on the return day, that the requirements of the statute as to number and amount of petitioning creditors had been complied with, so adjudged, which, judgment is by the statute declared to be final.</p> <p>2. Such judgment is certainly final in the absence of fraud or collusion.</p> <p>3. The allegation that the petitioning creditors knew that the proper number of creditors had not joined in it. was not sustained, and both motions must be denied.</p>

[This was an action by Adam McKinney against William Neil to recover damages for personal injuries sustained in an accident alleged to have been caused by the negligence of the defendant.]

<p>[In the matter of James Mackintire, a bankrupt.]</p>

<p>Appeal from Pulaski circuit court.</p> <p>[This was a suit by John McLain against Samuel M. Rutherford.]</p>

<p>Case No. 8,869.</p> <p>Partnership— Dissolution — Division op Credits —Assignment by Partner — Right op As-signee against Debtor.</p> <p>Where a firm put a debt, after the dissolution of the partnership, at the disposal of one partner, and gave information of it to the debt- or, such partner has a right to assign it as security for his private debt, and in .equity the as-signee may maintain a suit for it against the debtor.</p>

The first count of the declaration stated' that the defendant [Samuel Turner] was indebted to the plaintiff [McLaughlin’s administrator] “for sundry matters properly chargeable in account, as by an account thereunto annexed.” The second count -was for hoard and lodging, and other necessaries for twelve months.

<p>On habeas corpus.</p>

<p>Case No. 8,877.</p> <p>Right to Inspect Court Recohds — Statute— Rule op Court.</p> <p>An unlimited right of a citizen of the United States to inspect and examine all the records and papers belonging to the court does not exist Such right exists only as allowed by statute or rule of the court</p> <p>[Cited in Re Chambers, 44 Fed. 789.]</p>

Question certified by Wm. A. Guthrie, register. Is the bankrupt entitled to an exemption of one thousand dollars in real estate, and five hundred dollars in personal estate, as provided in the constitution of North Carolina, article ten, sections one and two? attorney for. as-signee: First Section 14, bankrupt act of 1867 [14 Stat. 522], provides that “such other property as now is, or hereafter shall be exempted from attachment, seizure, or levy oh execution by the laws of…

William Canby was the assignee of John McLean & Son, and also of John McLean and John P. McLean, the individual members of that firm. John McLean & Son were bankers in the city of Wilmington, Delaware. Some twenty thousand dollars more than John P. McLean’s share in the capital stock amounted to, was, during the course of business of the firm, advanced by John McLean (the father), to the firm for firm uses and purposes.

This was a petition by creditors to have the defendants [Brown, Weber & Co.] adjudged bankrupts, alleging that they had suspended payment of their commercial paper and had not resumed within fourteen days. Upon this suspension issue was taken. At the trial a check of the defendants given in payment of rent of the store they occupied in their business, and which had remained unpaid for more than fourteen days, was presented in evidence.

<p>Case No. 8,881.</p> <p>Parties — County Commissioners — Right to Sue and be Sued — Derived from State Statute— Federal Courts — Practice — Power to Regulate — Construction of State Laws. .</p> <p>1. By the provisions of the act to establish a board of county commissioners, passed March 12, 1853, and the act April 20; 1852, the county commissioners of Hamilton county are authorized not only to make contracts in regard to public buildings and other matters, but to sue and be sued in all matters which involve the exercise of their powers.</p> <p>2. In both cases the right to sue and the liability to be sued arises from the law of the state: and this, under the 34th section of the aft 1789 [1 Stat. 92], constitutes a “rule of decision” for the courts of the United States. The citizenship of the plaintiffs must be shown in states other than Ohio, and this gives jurisdiction.</p> <p>3. The suit must be brought within the state; but this arises from the local character of the commissioners who are sued, and not from any expressed or inferable intention to prohibit suit being brought in the circuit court of the United States.</p> <p>4. No state has the power to regulate the practice of the circuit court, yet even this is frequently done by an act of congress, adopting the state practice, or by the rules of the court.</p> <p>5. A circuit court of the United States, while sitting in a state, “is a court of judicature within it.” It administers the laws of the state and is bound by their provisions, the same as the local tribunals.</p> <p>6. The position is unsustainable, that no suit can be maintained in this court against a legal association of individuals, within a state, who do not possess in every respect the technical qualities of a corporation.</p>

<p>Case No. 8,883.</p> <p>Bankruptcy — Insolvency—Assignment — Fraud —What Assignee Takes — Distribution.</p> <p>1. An assignment of all the property of a firm, in contemplation of a state of insolvency, is a fraud against the bankrupt act [of 1841 (5 Stat. 440)].</p> <p>[Cited in Perry v. Langley. Case No. 11.006; Globe Ins. Co. v. Cleveland Ins. Co., Id. 5,-486.]</p> <p>2. Such transfer, within two months preceding the application for relief, is, of itself, strong ground of fraud.</p> <p>3. If one of a firm apply for and obtain the benefit of the act the firm being insolvent, the as-signee takes all the effects of the firm.</p> <p>[Cited in Amsinck v. Bean, 22 Wall. (89 U. S.) 402.]</p> <p>4. Relief having been given to the bankrupt, the property must be brought into the bankrupt court, that distribution be made as the law requires. As at present situated, the bankrupt court has no control over the property.</p>

[Appeal from the district court of the United States for the Eastern district of Missouri.] J. H. McLean is the assignee of the lessor of certain premises demised to the bankrupt. The district court made an order allowing McLean’s demand to the extent of •$<>G0 as a secured claim against the estate of the bankrupt.

<p>In bankruptcy.</p>

[This was a bill by Nathaniel C. McLean, assignee in bankruptcy of John Mahard. Jr., and William Mahard, partners as John Ma-hard & Co , to set aside certain transfers of stock and mortgage of real estate made by the bankrupts and claimed to be fraudulent as to their creditors. An injunction was granted to stay proceedings in the state court seeking to enforce the alleged fraudulent preferences. The case was formerly heard upon motion to dissolve this injunction.

[This was a bill by Nathaniel C. McLean, assignee in bankruptcy of John Mahard, Jr., and William Mahard. partners as John Ma-hard & Co., to set aside certain transfers of stock of the Lafayette Bank and mortgage of real estate made by the bankrupts, and claimed to be fraudulent as to their creditors. An injunction was granted to stay proceedings in the state court seeking to enforce the alleged fraudulent preferences.

[This was a bill by Nathaniel McLean, as-signee in bankruptcy of John Mahard, Jr., and William Mahard, partners as John Ma-hard & Co., to set aside certain transfers of stock of the Lafayette Bank and mortgage of real estate made by the bankrupts, and claimed to be fraudulent as to their creditors. An injunction was granted to stay proceedings in the state court seeking to enforce the alleged fraudulent preferences.

[This was a hill by Nathaniel C. McLean, assignee in bankruptcy of John Mahard, Jr., and William Mahard, partners as John Ma-hard & Co., to set aside certain transfers of stock of the Lafayette Bank and mortgage of real estate made by the bankrupts and claimed to be fraudulent as to their creditors. An injunction was granted to stay proceedings in the state court seeking to enforce the alleged fraudulent preferences.

<p>In bankruptcy.</p>

<p>Case No. 8,891.</p> <p>Bankruptcy — Assignee—When Rights Attach —Judgment Obtained before Petition — Lease for Ninety-Nine Years — Judgments at Same Term.</p> <p>1. From the time of filing a bankrupt’s petition, the right of the bankrupt, by relation, is vested in his assignee. And no subsequent lien created by the bankrupt, or by a judgment, can be valid.</p> <p>[Cited in Phelps v. Sellick, Case *No. 11,079.]</p> <p>2. But a judgment obtained before the petition was' filed, having been obtained bona fide, is a lien within the second section of the bankrupt law [of 1841 (5 Stat. 440)].</p> <p>[Cited in Clarke v. Rist, Case No. 2,861.]</p> <p>3. A lease for ninety-nine years, renewable forever, by the common law is only a chattel.</p> <p>4. A judgment binds tbe real estate of the defendant, from the first day of the term at which it was rendered.</p> <p>5. Under the construction of the Ohio statute, by tbe supreme court of the state, a permanent leasehold estate, is land, within the execution law, and is bound by a judgment.</p> <p>6. All judgments rendered at the same term have equal iiens, on the real estate of the defendant, however the executions may have been issued and levied, provided the levy has been within a year from the rendition of the judgment.</p> <p>7. Where there is no allegation of fraud in the bill, and the liens will more than absorb the property of the bankrupt, there is no reason why this court should exercise jurisdiction.</p> <p>[Cited in Re Bowie, Case No. 1.728; Re Huf-nagel, Id. 6,837; Kimberling v. Hartly, 1 Fed. 575.]</p>

[This was a suit originally brought in a state court of New York by Samuel McLean against'the St. Paul & Chicago Railway Company, for breach of contract. It was removed to this court on motion of defendant, and is now heard on motion of plaintiff to remand to the state court.]

<p>Case No. 8,893.</p> <p>Removal op Causes — Second Petition — Same Term op Court — Edition op United States Statutes — Bond on Removal — Waiver bt Neglect-Excuse.</p> <p>1. On March 17th, the state court in which this suit was pending made an order, on the petition of the defendant, that it be removed into this court. The defendant ought to have filed the record in' this court by April 7th. It was not filed till April 10th. This court, on May 24th, made an order remanding the cause. June 2d, on a new petition filed that day by the defendant, which set forth that the suit was then pending in the state court, that court made an order that the suit be removed into this court: Eeld, that, as the removal was provided for by sections 2 and 3 of the act of March 3. 1875 (18 Stat. 470, 471), the petition was in time if filed before or at the term at which the cause “could be first tried, and before the trial thereof.”</p> <p>[Cited in Davies v. Marine Nat. Bank, 24 Fed. 195.]</p> <p>[Cited in Continental Life Ins. Co. v. Kess-ler, 84 Ind. 313.]</p> <p>2. The publication of the second edition of the Revised Statutes, under the act of March 2, 1S77 (19 Stat. 268), did not re-instate subdivision 1 of section 639 of the Revised Statutes, as applicable to this suit. The proper condition of the bond on removal was that prescribed by section 3 of the act of 1875.</p> <p>[Cited in Norris v. Mineral Point Tunnel, 7 Fed. 273; Shelbrick v. Cockcroft, 27 Fed. 579.1</p> <p>3. The petition of June 2d was filed before or at the term at which the cause could be first tried.</p> <p>[Cited in Johnson v. Johnson, 13 Fed. 191.]</p> <p>4. As the defendant had once removed the cause to this court and had failed, by neglect, to perfect the removal, and the cause had been remanded for that reason, the right to remove it had been waived and lost.2</p> <p>[Cited in Rowell v. Hill, 28 Fed. 434.]</p> <p>5. The defendant could not now be allowed to furnish an excuse for not having in time filed the record on the first removal, and it had acquiesced in the first remand by averring, in the second petition, that the cause was then pending in the state court.2</p> <p>[Cited in Woolridge v. McKenna. 8 Fed. 667.]</p> <p>[This order, together with that of May 24. 1879 (Oase No. 8,892), was affirmed by the supreme court, on writ of error. 108 U. S. 212, 2 Sup. Ot. 498.]</p>

This was a writ of error brought to reverse the decision of the district court of Maine in a cause of admiralty and maritime jurisdiction. A motion was made to dismiss the writ of error, upon the ground that this cause was cognizable only by way of appeal, and not by writ of error.

[Appeal from the district court of the United States for the Eastern district of Pennsylvania.] The Robert Morris is a large canal boat, decked and rigged as a schooner, employed in carrying lime, &c., from Norristown, on the Schuylkill Canal, down the rivers Schuylkill and Delaware, to Salem, New Jersey, and occasionally through the Chesapeake and Delaware Canal into Maryland, returning with wood or such other cargo as could be procured.

During the Civil War, the congress of the United States, on March 12, 1863, passed a law known as the “Captured and Abandoned Property Act” [12 Stat. 820], which directed the secretary of the treasury to appoint certain agents, whose duties were to receive from the military officers and from private soldiers, all property captured by the forces of the United States within his agency.

<p>[This was an action by John R. McLeod against Jeremiah W. Duncan. Heard on motions for an attachment and to dissolve an injunction.]</p>

The libel in this case was filed by the libel-lants [William McLoon and William Grant], as sole owners of the bark Caroline, to recover the sum of $3,368.39, with interest from July 26th, 1864, being the balance due on a charter party, whereby the libellant Grant, as master and part owner of the bark and agent for the libellants, chartered her to the respondents [Maurice F. Linquist and others] for a voyage from New York to New Orleans.

[This was a libel by James McMahon against the brig Primera. A decree was rendered for libelant (unreported). Heard on claimants’ exceptions to the commissioner's report.]

Pinal hearing on pleadings and proofs. Suit brought [by John S. M’Millin, Hugh Campbell, and John Shaffer against James Barclay and others] upon two letters patent, granted to complainant, John S. M’Millin, one for “improvements in capstans for steamboats and other vessels,” dated February 20, 1866; and the other for “improvements in applying steam-power to the capstans of steamboats and other crafts,” dated April 16, 1867.

On May 20, 1876, the court of common pleas No. 4 granted a rule to show cause why the above cause should not be removed into the circuit court of the United States. On May 27. 1876, this rule was made absolute (not being opposed by defendant’s counsel,) and a petition and bond for removal to the United States court were filed.

<p>Case No. 8,904.</p> <p>Homestead — Waiver in Writing— Partnership Note Stoned bt One — Both Bound.</p> <p>Under the act of assembly of Virginia, allow ing a waiver of the homestead exemption when done in wiiting, if a partner in a mercantile firm, in executing a negotiable note of the firm, inserts therein the homestead waiving clause, such clause is effective to defeat pro tanto not only the exemption of the partner who executes the note, but that of each member of the firm, not only in the estate of the firm as such, but in the estate of each and every member of the firm.</p>

Action against the defendant, as endorser of a note of hand made by William Long-stretli, 20th of October. 1800, payable six months after date; and assigned by the defendant to the plaintiff, before it became due.

<p>[In the matter of the McNab & Harlin Manufacturing Company.]</p>

John F. McNair, a witness summoned on behalf of the bankrupt, was on his examination before the register, Wm. A. Guthrie. He produced certain papers which were marked as a part of the deposition and filed with it.

<p>[Libel by Thomas McNally against Christopher Meyer and others to recover for damages sustained by collision.]</p>

<p>Case No. 8,910.</p> <p>Contracts — Exponent op Intention — Extrinsic Evidence — Suit por Violation — Offer to Comply — Partnership—Sale of Interest — Admission in Firm.</p> <p>1. A contract free from ambiguity in its terms must be viewed as the exponent of the intention of the parties to it, and can not be varied or contradicted by extrinsic evidence.</p> <p>2. A partner can not, by an agreement to sell a part of his interest, compel his other partner to accept the vendee as a member of the firm.</p> <p>3. Where one party to a contract agrees to do an act at a time specified, in consideration of which the other party is to do another act at the same time, neither party can sue for a violation of the agreement, or insist on its specific performance without showing an offer to comply with the agreement, or a sufficient excuse for not doing so.</p>

<p>[This was an action by A. McNaughter against William Cassally for damages for breach of contract.]</p>

[In the matter of Moses A. McNaughton, a bankrupt.) This is a motion to vacate the order to show cause on creditor’s petition for adjudication, and to dismiss the petition on the ground that it “is not signed and verified as required by the rules and practice of this court.”

The defendants had given a warehouse receipt to Upham & Co. for 800 bushels of wheat. Upham & Co. agreed with the plaintiffs to sell to them a much larger amount of wheat, and, in part execution of this agreement, assigned to the plaintiffs the receipt of the defendants. The plaintiffs presented the receipt to the defendants, and demanded the wheat mentioned therein; and upon refusal to deliver it, they brought this suit to recover their damages.

Bill in equity [by Archdeacon McNeil against James Magee and others]. The cause came to a hearing upon the bill, answers, depositions, and exhibits.

<p>These two cases were alike in their facts, and were tried together. Two boys, eighteen years old, left their homes together, and enlisted in the marine corps, without the knowledge or consent of their parents. One of them had only a mother living. It was alleged that the boys were drunk; but the court did not examine that question. They told the enlisting officer that they were of full age, and there was no reason to suppose that he doubted their statement.</p>

[Appeal from the district court of the United States for the district of Massachusetts.] Libel [by John M. Thompson against Ichabod Macomber and others] for the share of the libellant, as cooper on a whaling voyage to the Pacific Ocean and back to the United States. The answer admitted the service and share of the party; but asserted gross misbehavior, as incurring a forfeiture. The decree of the district court was in favor of the libellant, from which an appeal was taken.

<p>Case No. 8,931.</p> <p>Execution Sales — Land- Erroneous Description — Summart Relief — Call of Deed —Natural Objects.</p> <p>1. A sale had been made by the marshal, under an erroneous description of the premises, and was set aside. “The court, exercising under the long established practice of the state courts, as well as of this court, a kind of mixed jurisdiction, will afford a similar relief. If the case were complicated, and especially if there were contradictory evidence, the court might think it most proper to rerer the parties to a more formal trial of their rights, on the law or equity side of the court, as might be selected. But no such objections arise in this case to prevent the court from granting relief in a summary way.”</p> <p>2. There is no principle of land law more firmly settled in this, and probably most of the states, in respect to country lands, than this: that where the calls of a deed or other instrument are for natural, or well known artificial objects, both course and distance, when inconsistent with such calls, must give way and be disregarded. This rule is founded upon the soundest reason and good sense, and is equally so in its application to town lots.</p> <p>[Cited in Riley v. Griffin, 16 Ga. 141.]</p>

<p>Case No. 8,930.</p> <p>Seamen’s Wases — Deductions for Board and Transportation after Wreck — British Law.</p> <p>[Under the acts of parliament it is the duty of British consuls in foreign countries to find conveyance home for the sailors of a wrecked British vessel; and where the master, without communicating with the consul, assumes his duties in this respect, the resulting expenses for board and transportation of the seamen cannot be deducted from their wages, which are to be estimated up to the day of the wreck.]</p>

Motion to dismiss certiorari and to award restitution. The petition of Daniel McPherson respectfully showeth: That in the month of March, 1846, General John P. Van Ness, late of the city of Washington, died seized of a large real estate situate in the said city, of which the north part of that lot of ground being on [Seventh] street, known and described on the ground plot of said city as lot numbered 1, in square 428, with the house thereon and appurtenances, formed a part.

<p>Case No. 8,923.</p> <p>Tax Titles — Ejectment—Evidence.</p> <p>1. Under the provisions of the Code of Virginia, when a sale of land has been made by a sheriff for the non-payment of taxes, and a conveyance has been made by the clerk of-the county court, and recorded, such title as was in the person assessed with the taxes, at the beginning of the year.for which the assessment was made, is vested in the purchaser, notwithstanding any irregularity in the proceedings, unless it appear on the face thereof.</p> <p>2. Though the party in whose name the land was assessed, after the assessment, and before the sale, died, and under a decree against his heirs, the land was sold before the conveyance was made by the clerk in pursuance of the sale for the non-payment of taxes, the sale for the taxes will prevail against the sale under the decree. i</p> <p>3. The purchaser at the sale, for the nonpayment of taxes, need not show the proceedings previous to the deed from the clerk to him, in order to recover on such title. The deed itself, when regular, is prima facie evidence that the proceedings were regular, and that the title passed.</p> <p>4. The assessment of the land on the commissioner’s book with the taxes, for the nonpayment of which it is sold, is not a' circumstance in relation to the sale, which is required to be recited in the deed from the clerk to the purchaser.</p> <p>5. If the assessment be such a circumstance, a recital that the land was returned delinquent for the non-payment of the taxes, necessarily implies such previous assessment, and is sufficient.</p>

[This was an application forp a writ of habeas corpus to procure the release of Purcell McQuillon, who was held in custody by the military authorities of the United States at Fort Lafayette, New York.]

A claim for wages for the voyage was instituted against a merchant, whose ship had been carried in by a belligerent, adjudicated, and ship and cargo condemned in the court of the captor. A point was made, that the owners had received insurance on the freight, and thereby the fund for paying wages was restored.

<p>[This was a bill in equity by James Mc-Sorlay v. Thomas W. Ludlow.]</p>

<p>Case No. 8,930.</p> <p>Removal of Causes — Petition—Uncertainty— “Cikcuit on District Court. ”</p> <p>A petition to remove a case from a state court to the circuit or district court of the United States, which was granted, creates no uncertainty, as the removal can only he to the circuit court.</p>

<p>[In the matter of a creditor of W. C. Mc-Vey, in his opposition to the bankrupt’s discharge.]</p>

This was an action of assumpsit in three counts. One was for goods sold and delivered. Another on an account annexed for like goods and one for money had and received. The plaintiffs [Josiah Macy and others] proved the sale of copper for the ship Corinthian, January 10th, 1842, to the value of $2,493. The vessel lay at Bristol, Ithode Island, where all the defendants [William H. DeWolf and othersj resided, and who were part owners of her at that time, in different shares.

<p>Case No. 8,933a.</p> <p>Whit — Justice of Peace — Proof—Variance.</p> <p>Where the summons of the justice of the peace describes the cause of action as a “note of hand.” a “bond” or “writing obligatory” cannot be received in evidence, for it is variant from the summons.</p>

Replevin, by [William B. Maddux and others] citizens of Ohio against [Roland G. Usher] the United States marshal for the district of Massachusetts, to recover .goods that he had attached as the property of a merchant in Boston, who claimed to have purchased the same of the plaintiffs. The plaintiffs alleged the proposed sale by them to have been upon condition precedent that had neither been complied with nor waived, and that they had not parted with their title to the goods.

<p>[This was an action by the Madison Mutual Insurance Company against George A. Ecker and others.]</p>

[This was a bill by the Madison and Portage Railroad Company against the treasurer of the state of Wisconsin, the West Wisconsin Railway Company, the Wisconsin Railroad Farm Mortgage Land Company, the North Wisconsin Railway Company, the Chicago, Portage & Superior Railway Company, and the Wisconsin Central Railway' Company. Cross bills were filed by various defendants.

In equity. This cause was heard upon the motion of complainants [Bosalie Maenhaut and others] for a preliminary injunction, and for the appointment of a receiver. It was submitted upon the bill, supplemental bill, answer, affidavits, and arguments of counsel.

[This was a bill in equity by Rosalie Maen-haut against the city of New Orleans for a preliminary injunction, and for the appointment of a receiver. The injunction was granted, restraining the city from diverting to other purposes the tax levied and collected for the purpose of paying interest on city bonds. Case No. S.939. The case is now heard for final decree.] ,

This was an application for a provisional injunction, to restrain thedefendant [Seymour F.] Denton, as a collector of internal revenue, from collecting $1,500 of the income tax assessed against the plaintiff [John Magee] ud-(ler the internal revenue act of July 1st. 1SG2 (12 Stat 433).

The libellants [John Magee, Alexander Ware, John Dunderfield, and William Pitt] were seamen on board the ship Moss. They shipped at Philadelphia, as appeared by the articles, on the 2d January, 1S30, on board the ship Moss, at the wages of fifteen dollars a month, “on a voyage from Philadelphia to South America, or any other port or ports, backwards and forwards, when and where required, and back to Philadelphia, unless sooner discharged.”.

This action was brought in the state court [by John Magee] to recover damages for personal injuries alleged to have been received by plaintiff’s wife, while traveling on defendant’s railroad, in the territory of Utah, and was removed to this court by defendant, the petition for removal stating generally, that the defendant had a defense to the action arising under a law of the United States.

<p>[Appeal from the district court of the United Slates for the district of Louisiana.]</p>

Libel for towage by the tug E. M. Peck, which boat libellants owned. John P. Clark, the respondent, was surety upon the stipulation to answer judgment.

This was an action in the case [by the Magic Ruffle Company against Alexander Douglas and Samuel S. Sherwood], tried before Judge Shipman and a jury to recover damages for the infringement of three letters patent. The first, for an “improvement in the manufacture of ruffles,” was granted to George B. Arnold, May 8, 1860 [No. 28,244], and assigned to plaintiffs.

<p>Case No. 8,949.</p> <p>Patents — License — Agkeement — Violation — Validity of Patent — Discovert—Estoppel.</p> <p>1. Letters patent granted to George B. Arnold, May 8th, 1800. for an “improvement in ruffles.” and three other patents, were owned by the plaintiffs, a corporation of New York. They had recovered a verdict in a suit for an infringement of the Arnold patent. The defendants, a corporation of Connecticut had been infringing that patent. On the 21st of February. 1803. an agreement of license was made between the two corporations, whereby the plaintiffs agreed to license the defendants, under the four patents, to manufacture and sell under such license, exclusively. the ruffle then manufactured and sold by the defendants, and known as “the double ruffle.” and to use the patented machines in the manufacture only of the said double ruffle, and whereby, in consideration of said license, the defendants expressly recognized the validity of each of said patents, and agreed to receive licenses as aforesaid under each of them, and expressly agreed that they would manufacture ■and sell only the said double ruffle, and that the said double ruffle should not be divided by them, and whereby they agreed to submit, at all times, their manufactory to inspection, so that the' plaintiffs should be advised of the kind of ruffles which were being manufactured, and to pay counsel in the suit above named, and to retain and pay counsel thereafter in suits relating to and in support of said patents, and to pay one-half of the other expenses of sustaining said patents, and whereby each party agreed to assist the other in suits which might be instituted by either for the purpose of maintaining its rights under either of said patents. The bill in this suit alleged, that, after the agreement of license was made, the defendants continued to make and sell the double ruffle of the kind referred to in the agreement, and also made and sold, in violation of the agreement and of the Arnold patent. quantities of single ruffles, each of which contained the invention described and claimed in said patent, and prayed for a disclosure by the defendants of their profits and of the number of yards of single ruffle containing said improvement which they had made and sold, and for the payment of such profits and of the damages sustained by the plaintiffs. The answer, besides denying the infringement, denied the novelty of the invention covered by the Arnold •patent, and alleged that the defendants had, over since the agreement was executed, been engaged. to the knowledge of the plaintiffs, in the sale of ruffles which were not claimed by them, until about the time of the commencement of this suit, to violate said patent, and that this suit was brought on a stale claim, and one unfounded in equity: Held, that the defendants were estopped, by their covenants in the agreement, from denying the validity of the patent.</p> <p>[Distinguished in National Manuf’g Co. v. Meyers, 7 Fed. 357.]</p> <p>2. The contract was not merely an agreement for a license, but was an executed license.</p> <p>3. The plaintiffs could sue for either an infringement of the patent or a breach of the agreement, and the bill in this case could be re■garded as a. bill in either aspect.</p> <p>[Cited in McKay v. Smith. 29 Fed. 290: American Box Mach. Co. v. Crosman. 57 Fed. 1025.]</p> <p>4. As a bill founded on the agreement, although no royalties were payable, and although the patent had expired, the bill is not open to the objection that there is a complete and adequate remedy at law. because an account and a discovery are necessary to ascertain the facts from which the damages to the plaintiffs can be computed, and this bill is a bill for an account and a discovery.</p> <p>[Distinguished in Washburn & Moen Manuf’g Co. v. Cincinnati Barbed Wire Fence Co., 42 Fed. 677.]</p> <p>5. The contract having become executed, and the defendants having enjoyed its benefits, they cannot, in the absence of fraud on the part of the plaintiffs, deny the truth of their admission of the validity of the patent.</p> <p>6. The invention in the Arnold patent consists in confining the tucks and gathers in place and securing them to a binding or ungathered piece of cloth, by one and the same series of stitches, or, in other words, causing one series of stitches to perform the double duty of confining the plaits and attaching them to the binding or other material. The claim, namely, the ruffle “as a new article of manufacture, the gathered cloth A (the ruffled strip) being secured to the binding B (the band) by the single series of stitches C. which perform the double duty of confining the gathers and of securing the gathered cloth to the binding, substantially as herein set forth,” is infringed by the defendants’ ruffle, which is a plaited strip combined with a band, a single row of stitches performing the office of securing the gathers and uniting the gathered cloth to the band, although it has. in addition, a second row of stitches in the band, not securing the band to the gathered cloth, and although it is a finished article, having a band with an even and finished edge, and is designed to be worn as a neck ruffle.</p> <p>7. The defendants’ ruffle is not a double ruffle, and so within the license, because, if it is divided between the two rows of stitches, one part will be a ruffle, and the other will be a useless strip of stitched cloth, not a ruffle, in any proper sense of the word.</p> <p>8. The defence, that the agreement in regard to the manufacture of ruffles other than the double ruffle was subsequently abandoned by the plaintiffs, is not sustained.</p> <p>9. Nor is the defence sustained, that the claim has become stale, by reason of the laches of the plaintiffs in vindicating their rights, and in acquiescing in the assertion of adverse rights by the defendants.</p> <p>[For the hearing on exceptions to the master’s report and for a final decree, see Case No. 8,950.</p> <p>[For another case involving this patent, see Magic Ruffle Co. v. Douglas, Case No. 8,948.]</p>

<p>Case No. 8,950.</p> <p>Practice in Equity — Action at Law — Inadequacy — Bill for Discovert — Account— Damages — Patents—Infrinoement.</p> <p>1. Where a bill is brought for a discovery and for other equitable relief within the appropriate jurisdiction of a court of equity, and the ultimate object of the plaintiff is to obtain damages, the court, having granted a discovery, will proceed and give the proper relief in damages, and not compel the plaintiff to undergo the delays and expenses of a suit at law.</p> <p>2. Where a bill is brought for a discovery, in a case which is not the proper subject of an action or bill for an account, the fact that the plaintiff is entitled to á discovery does not necessarily entitle him also to an account.</p> <p>3. But if the relief to be ultimately rendered is the payment of damages, and a discovery is needed, and the ascertainment of damages is complicated and intricate, and the action at law cannot be adequately tried without great difficulty, then, although the case, is not one of trusteeship or agency, a court of equity will assume jurisdiction of the whole case and proceed to a final decree on the merits.</p> <p>4. The rule of damages for the infringement of a patent considered.</p> <p>5. If a master’s report, made under an interlocutory decree, discloses facts properly heard by him. which, in the opinion of the court, should be further investigated, it is competent for the court to direct such an investigation.</p> <p>[For another case involving this patent see Magic Ruffle Co. v. Douglas, (Jase No. S.04S.]</p>

In this case, a petition in bankruptcy was filed by the bankrupt on March 3d, 1868, which was referred to a register.

The subject of bequests for pious and charitable uses was very fully considered by the circuit court of the United States for the Eastern district of Pennsylvania, at the April term, 1833. in the case of Magill v. Brown, which involved the construction of the will of Sarah Zane, deceased. The following sections of the will are those reviewed in the opinion of the court: “9.

The libellant was shipped at New York for a voyage thence to Cette, in France, thence to Russia, and back to a port of discharge in the United States or British provinces, term not to exceed twelve months, at twenty-five dollars a month and received a month’s advance. The vessel was regis-terefi as British, and the legal title was in a person living in Halifax, Nova Scotia, and the form of the articles was such as is required for such vessels.

The libel was filed by John B. Howard for a balance due him as wages for services as first engineer on the steamer during a portion of the navigation season of 1871. The balance claimed to be due was $175. The defense was desertion and improper conduct.

This case was tried on a feigned issue made up by agreement of parties, for the purpose of ascertaining whether John It. Thompson, the defendant, had any means wherewith to pay a debt claimed by the plaintiffs, or means by the property in his marriage settlement, or otherwise, of satisfying a certain judgment in their favour against him. The agreement was made the 3d of June, 1830.

On the 19th of December, 1825, John R. Thomson, now a senator of the United States from the state of New Jersey, previously to a marriage then contemplated with a daughter of the late Honourable… Held: that “plaintiff receives a satisfaction in law by having his debtor in execution.” Hobart, O. J., reasons himself to this in Foster v. Jackson, already cited. This is said in many other cases.

<p>Case No. 8,958.</p> <p>Collision — Mississippi River Navigation' — Ascending Boat — Uncertainty—Care—Lookout.</p> <p>1. Duties of steamers in the navigation of the Mississippi.!</p> <p>[Sc.e Bates v. The Natchez, Case No. 1,102.]</p> <p>2. A steamer leaving the ordinary and usual track of vessels under the circumstances, is bound to show some palpable necessity for the deviation.1</p> <p>3. An ascending boat, running at great speed in a dark night, at a time when a descending boat is visible, of whose course she is doubtful, takes the risk of a collision: she ought to ease or stop her engines, till she is assured of the course of the other.1</p> <p>4. A steamer is responsible for a collision which a better lookout than she had might have prevented.1</p> <p>5. Where a collision is produced by the fault of one boat, she cannot complain that the other had not used extraordinary measures of precaution before, or the clearest judgment in the selection of the method of extrication after, the collision became imminent.</p>

[This was a bill in equity by Joseph Magoun against the New England Glass - Company, alleging the infringement of a patent which was granted to complainant September 10, 3867.]

Tlais was the case of a policy of insurance, underwritten by the defendants, on the 20th of March, XS3S, whereby they insured the plaintiff [David C. Magoun], for whom it concerns, payment to him, four thousand dollars on the schooner Yankee, and on her freight, at and from ¡it. Thomas to Rio de la Hache, and at and from thence to New York, viz. .$3200 on the schooner and $S00 on the freight, against the usual risks in the Boston policies.

<p>[This was a suit by Louis H. Mahn against Harrison Harwood and others to restrain the infringement of a certain patent.]</p>

<p>Case No. 8,968.</p> <p>Removal op Causes — Provisional Remedies— Jurisdiction after Removal.</p> <p>1. Where proceedings have been perfected for removing a cause from a state court to the circuit court of the United States, under the act of congress of 1875 (18 Stat. 470), the circuit court, upon petition and notice to the adverse party, will grant leave to file a copy of the record in said court before the first day of the next succeeding term thereafter, for the purpose of administering without delay any of the provisional remedies to which the petitioning party may be ■entitled.</p> <p>[Cited in Delbanco v. Singletary, 40 Fed. ISO: Pelzer Manuf’g Co. v. St. Paul & Marine Ins. Co., Id. 18G.]</p> <p>2. The circuit court», upon such petition and notice, has jurisdiction to grant leave to file the record before the day appointed by statute; and, after the filing of the record in pursuance of ■such leave, to proceed to grant any provisional relief to which the party may be entitled.</p> <p>[Followed in Commercial & Sav. Bank v. Corbett, Case No. 3.057. Cited in Be Barncs-ville & M. By. Co., 4 Fed. 13: New Orleans City B. Co. v. Crescent City B. Co., 5 Fed. 101: Portland v. Oregonian By. Co.. C Fed. 323; Texas & St. D. By. Co. v. Bust, 17 Fed. 2S0: Kansas City & T. By. Co. v. Interstate Lumber Co.. 3fi Fed. 11; Delbanco v. Singletary, 40 Fed. ISO.]</p> <p>[See Case No. 8,909.]</p>

Bill in equity [by Mahony Mining Company against Samuel Bennett] to set aside a lease on the ground of fraud. [For a former hearing on a motion for leave to file record in the case and for a preliminary restraining order, see Case No. 8,968.]

The brig Glocester had been captured by Roger Kean in the privateer Holker, and condemned as prize to the captors. The marshal being about to make distribution of the booty amongst the crew, according to the list handed in by Captain Kean, was notified to stay in his hands twenty-five shares of the said prize, claimed by Patrick Ma-hoon, and others, as being a part of the crew belonging to, and concerned in the said privateer Holker.

<p>Case No. 8,971.</p> <p>Customs Duties — Shawls—Wearing Appakel.</p> <p>1. Shawls or scarfs, manufactured on looms, and in strips or pieces containing several, the place of separation indicated by threads which form, when cut, the fringe, and the articles being actually separated before importation, and being, in the state in which they are imported, suitable and adapted to be worn by women and children as articles of dress, and, at the time of importation, usually so worn, and imported for that purpose, come within the description of wearing apparel, under Schedule C of the tariff act of July 30th, 1S46 (9 Stat. 43), and are chargeable with a duty of 30 per cent.</p> <p>2. By the use of the words “wearing apparel” in the act of 1846, congress intended to make the purpose, adaptation, and use of an article, and not its commercial designation, the test of its dutiable description.</p> <p>[Cited in U. S. v. Washington Mills. Case No. 16,647; U. S. v. Oppenheimer, 61 Fed. 284.]</p>

This wms an action [by Thirion Maillard and others] against [Cornelius W. Lawrence] the collector of the port of New York, to recover back an excess of duties and a penalty. The jury found a verdict for the plaintiffs, subject to the opinion of the court on a case.

This is a suit in chancery [by W. S. Main and others, assignees] to set aside a pretended sale of the bankrupt’s property and effects to the defendant [John Barr Glen] made on the 28th day of January, 1874. The bankrupt, Siegrist, was at the time a merchant at Wausau, doing a general retail business. The defendant was his clem. The stock of goods invoiced at about $10,000, and the accounts amounted to from $8,000 to $9,000.

This was an action by W. S. Main, assignee of tlie Bank of Madison, to recover dividends claimed to have been wrongfully received by tlie defendant [Simeon Mills], while the hank was actually in an insolvent condition.

[This was a suit in bankruptcy by W. S. Main, assignee, against the Second National Bank of Chicago.] Motion to dismiss for want of jurisdiction, the defendant being a national bank, located and doing business in the city of Chicago, state of Illinois, and service having been had upon John P. McGregor, the cashier, who was found within the district. cited Crocker v. Marine Nat. Bank of New York, 101 Mass. 240; Cooke v. State Nat. Bank of Boston, 50 Barb. 339.

<p>Trover for the conversion of logs. Plea, not guilty. The cause was tried before the court without a jury. The only question in dispute was that of conversion.</p>

Assumpsit on a bill of exchange in the following words: “At sea, in the longitude of 27° west from Paris, and in the latitude of 37° 39' north, on board the privateer Invincible. French, of Bayonne, ninety days after sight this my first of exchange, second of the same tenor and date unpaid, I promise to pay to Messrs. Michael Maisonnaire and Derouet, merchants, Bayonne, five thousand dollars, for the ransom of brig Nancy & Mary and cargo, to be paid at Boston. April 3, ISIS.

In admiralty. Libel for repairs [by William H. Wolf and others against the schooner Maitland].

<p>Case No. 8,980.</p> <p>Bottomry — Mortgage—Lien—Simple Loan— Bill Taken with Bond.</p> <p>1. Where A., the master of a brig, puts into a foreign port by reason of a leak, and there borrows money from B., and draws a bill of exchange upon C., which hill is unpaid at maturity, and at the same time that the bill is drawn, he also executes a mortgage or hypothecation, in which there is a special stipulation that B. is not to take the usual marine risks in cases of bottomry and hypothecation, neither instrument establishes a lien upon the brig, which can be enforced in the admiralty, for want of jurisdiction.</p> <p>[Cited in The J. R. Hoyle. Case No. 7,557; The Edward Albro, Id. 4,290.]</p> <p>2. The essential difference between a bottomry bond and a simple loan is, that on the ■'latter, the money is at the risk of the borrower, and must be paid at all events; in the former, it is at the risk of the lender during the voyage, and the right to demand payment depends on the safe arrival of the vessel.</p> <p>[Cited in The Edward Albro, Case No. 4,290.]</p> <p>3. Admiralty cannot enforce a claim for money which has been advanced on the personal credit of the vessel, owner or master, in a suit in rein.</p> <p>[Cited in The J. R. Hoyle, Case No. 7,557.]</p> <p>4. 'Where a bill is drawn, and a bottomry bond taken for the same sum, the bill must share the fate of the bond.</p>

<p>In bankruptcy.</p>

<p>Case No. 8,983.</p> <p>Prize — Violation or Blockade — Necessity —Enemy Property.</p> <p>1. A clear necessity will justify an entrance into a blockaded port, but satisfactory evidence will be required of the reality and urgency of the necessity.</p> <p>2. Vessel and cargo condemned as enemy property, and for an attempt to violate the blockade.</p> <p>[After final decree, a motion to reopen the question of costs and the distribution of the proceeds of the prize property was denied. Case No. 8,984.]</p>

Assumpsit upon a promissory note for $1,500 in gold payable at 'the Commercial Bank of Canada.” These words were erased, and the proof showed that this had been done after the note left the maker’s hands, and without his knowledge or consent, but there was nothing to connect the plaintiff with the alteration, and he was a bona fide holder for value.

<p>Case No. 8,984.</p> <p>Prize — Pinal Decree — Practice in Admiralty —Motion to Reopen — Costs.</p> <p>1. The question of the allowance by the court of costs and fees to counsel and officers in prize cases discussed.</p> <p>2. The court having at a previous term made a final decree distributing the proceeds of sale in the case, and awarding costs to various parties, a motion to reopen the question of costs was denied.</p> <p>3. After the lapse of the term in which a decree is rendered in a prize ease, the authority of the court to revoke or alter it is extinct</p> <p>4. The act and joint resolution of July 17. 1SC2 [12 Stat. 60Ó, 627], in respect to prize cases, discussed.</p>

[This was a libel by Charles J. Lovett, Josiah Lovett, Jr., Elliott Woodbury, and Seward Lee, captain and owners of the brig Malaga, against John E. Bispham, commander of the United States brig Boxer, to recover damages for an alleged unlawful detention of libellants’ brig.]

In this case, the application of [Kobert] Malcom for a decree of bankruptcy was opposed on the ground of informality in his petition: 1. Because the name of the petitioner was not signed in full. 2. Because there were erasures and interlineations in the petition. 3. Because the schedule was not sufficiently definite.

<p>Case No. 8,987.</p> <p>Negligexce — Tow Boat axd Tow — Delay ix Casting off Hawser.</p> <p>1. Where a steaming was employed to tow out a ship, which was lying stern out at pier 87, East river, and, having attached a hawser to her stern, towed her out stern foremost into the river, and then cast off the ha-wser, and attempted to come alongside and take another hawser from the ship's starboard bow, and the hands on board the ship failed to promptly catch the heaving-lines, and before the hawser could be properly attached, the ship drifted stern foremost against a pier on the opposite side of the river, and received injury, held, that the in.jury was occasioned by negligence on the part of the tug, in towing the ship so far out into the river. before casting off the hawser. It should have been cast off as soon as the ship had fairly ■cleared the New York piers.</p> <p>[Cited in The Merrimae, Case No. 9,478.]</p> <p>2. The tug was liable for the damages.</p>

<p>Case No. 8,988.</p> <p>Courts — First to Take Jurisdiction — Adminis-T R ATO R — Accou NT — FRAUD.</p> <p>1. "When an administrator is in the process of accounting before a probate court, he cannot be compelled to account in this court by a bill in equity.</p> <p>[Cited in Board of Foreign Missions of Presbyterian Church v. McMaster, Case No. 1,-5SG.]</p> <p>2. The circuit court has concurrent jurisdiction with the probate court, to decree an account in favor of distributees.</p> <p>[Cited in Chapman v. Borer, 1 Ped. 275.]</p> <p>3. When two courts have concurrent jurisdiction, the one which first has possession of the subject must adjudicate; and neither of the parties can be forced into another court.</p> <p>[Cited in Riggs v. Johnson Co.. 6 Wall. (73 U. S.) 197; Haines v. Carpenter, Case No. 5,-905: Blake v. Alabama & C. R. Co., Id. 1.493; Young v. Montgomery & B. R. Cold. 1S.1G6; Providence & N. Y. S. S. Co. v. Hill Manuf’g Co., 109 U. S. 57S. 3 Sup. Ct. 379. 619; Andrews v. Smith. 5 Fed. S41; Latham v. Chafee. 7 Ped. 524; Pulliam v. Pulliam, 10 Fed. 29; Bruce v. Manchester & Iv. R. R„ 19 Ped. 344; Reina ch v. Atlantic & G. W. R. Co., 58 Ped. 44.]</p> <p>(Cited in brief in Blake v. Butler, 10 R. I. 134: Corey v. Ripley, 57 Me. 70. Cited in Chapin v. James. 11 R. I. 89: Bank of Bellows Falls v. Rutland & B. R. Co., 28 Vt. 478; 1-Iill Manuf’g Co. v. Providence & N. Y. S. S. Co.. 113 Mass. 500; Du Vivier v. Hopkins, 110 Mass. 128.]</p> <p>4.An account of an administrator, though settled by a judicial decree of a court of competent jurisdiction, may he opened for fraud.</p> <p>[Cited in Griswold v. Central Vermont R. Co- 9 Fed. 800.]</p> <p>[Cited in Williams v. Herrick (R. I.) 25 Atl. 1100.]</p>

Writ of right for two lots of land (No. 11 in the fourth range, and No. 11 in the fifth range) in Lee, Penobscot county, Maine. The -count was on the demandant’s own seisin within twenty years. Plea, the general issue.

<p>Case No. 8,990.</p> <p>Bankruptcy — Assignee — Mismanagement — Frauds — Motion to Remove — Good Faith — Costs.</p> <p>Where an assignee, who is clerk of the bankrupt’s attorney, is charged with mismanagement of the estate, and that he sold the property for less than its value, and had been guilty of gross frauds, and his removal is asked by the creditors who. are unwilling to intrust the exposition of those frauds to such assignee, and a committee is named to conduct the proceedings on the part of the creditors, hdd, it is expedient that there should be another assignee substituted for the present one. At the same time such order will be made as to fully protect the present assignee against the cost of this proceeding, for it appears from the tesiimony that he has acted throughout -with entire good faith and energy. The costs of this proceeding must be paid out of the estate.</p> <p>[Cited in Re Blodget, Case No. 1,552; Catlin v. Hoffman, Id. 2,521; Citizens’ Bank v. Obcr, Id. 2,781; Re Wetmore, Id. 17,4GG.]</p> <p>[NOTE. The case was subsequently heard upon petition of Henry Yansickle, a judgment creditor of the bankrupt, praying that an injunction, granted upon petition of the bankrupt against the sheriff of Douglas county, who had levied upon property of bankrupt to satisfy execution in favor of Yansickle, the sale of which property was thereby enjoined, be dissolved. The petition was dismissed. Case No. 8,991.]</p>

Motion to dissolve injunction restraining the sheriff from selling property of the bankrupt [E. Mallory], under judgment obtained in the state court, before the institution of proceedings in bankruptcy. [This case was previously heard upon petition of creditors asking for the removal of R. Y. Dey, assignee. The prayer of the petition was granted. Case No. S,990.]

[This was a suit in the same court, by the same plaintiffs, George Mallory and the Mallory Manufacturing Company, against Charles L. Rahmer, on final hearing, on pleadings and proofs, as in Case No. 8,993. The same decree was accordingly entered in the two cases.]

[This was a bill in equity, filed [by George Mallory and the Mallory Manufacturing Company]- to restrain the defendant [George W. White] from infringing letters patent [No. 34,043] for “improvement in men’s hats,” granted to Thomas W. Adams and Charles H. Slicer, December 24, 1S61, as assignees of said Adams, which letters patent were assigned to complainants. [The claim was as follows: [“What I claim, etc., in the construction of men’s hats, .when the brims are of flexible…

This case was heard on a libel [by Andrew Malone against William Bell, .owner, and John Daly, master of the brig Mary] for wages during a voyage. The seaman was left, in the Havanna, sick in a hospital, where he was ordered, as the respondent alleged,' to stay until the return of the brig Mary from a short voyage, to that port, where she intended to obtain part of her home cargo.

[This was a libel for salvage by Samuel Malone and others against the American brig Pedro (S. J. Moulton, claimant). E. M. Stoddard intervened and contested the claim.]

This was an action on the case to recover damages for injuries received by plaintiff [Thomas Malone] in falling through a hatchway while in the employ of defendant.

This was a libel for freight [by James Ma-loney against Peter Butterly and others]. The libelant, who was owner of the barge John Maloney, took on board her at Philadelphia a cargo of coal, to be carried to New York. The coal was put on board by the vendor, consigned to the respondents.

<p>[This was a bill by Douglass F. Maltby and others against Angus L. Bobo for an injunction to restrain certain infringements.]</p>

<p>Case No. 9,000.</p> <p>Salvage — Raised fbom Bottom of Chaxxel— Dekbick-Boat.</p> <p>A derrick-boat raised from the bottom of the channel of a public navigable river may be the subject of a libel for salvage in admiralty.</p> <p>[Cited in Cope v. Vallette Dry-Dock Co.. 1G Fed. 92G: Aitcheson v. Endless Chain Dredge, 40 Fed. 254.]</p>

This was a motion to remand a case removed from the superior court of Detroit.

[This was an action by Albon P. Man, receiver of the Eighth National Bank, against G. H. Cheeseman to recover the amount of an assessment made by the comptroller of the currency, from the defendant as a stockholder therein.] The case against Dr. Cheeseman was a- peculiar one. He became an original subscriber in 18G5 for 50 shares of stock in the Eighth National Bank.

<p>Case No. 9,003.</p> <p>Bankruptcy — Assignment — Proceedings in State Court — Warrant op Possession to Marshal — Motion to Vacate Warrant.</p> <p>Prior to the commencement of the proceedings in bankruptcy, the bankrupt made a voluntary assignment for creditors to one R., who thereupon took possession, but failed to give the bond required by the statute. By virtue of a provisional warrant granted in the bankruptcy proceedings, the marshal took possession of the property which had been transferred to R. by the voluntary assignment. Upon proper proceedings subsequently had in the state court, R. was removed, and a new trustee appointed. On motion by the trustee to vacate the warrant, and for an order directing the marshal to deliver the property to him. luid, that the provisional warrant did not authorize the marshal to take possession of the property the title to which had passed by the state assignment to the voluntary assignee; that pending the question of adjudication and the appointment of an assignee, the court should not allow its process to interfere with the possession by the state assignee of the property; but since the trustee appeals to the bankrupt court for aid, reasonable conditions on granting the relief may be imposed, such as that he shall release the marshal from all damages for taking and keeping the property, pay his fees, and receive said property subject to the condition that he shall not dispose of any part thereof until a reasonable time after the appointment of an assignee, or the termination of the proceedings, except with the approval of the bankrupt court.</p>

<p>In admiralty. Heard April 10, upon plea to jurisdiction.</p>

Ejectment for certain lands in Providence. Plea, the general issue. The town of Providence, under whom the defendants [John B. Hough and others] claimed, took upon themselves the defence. The facts, as they appeared at the trial, were as follows: — On the 80th of September, 1797, Isaac Manchester (since deceased) and Mary Manchester, his wife (the present plaintiff,) were seized in fee simple, in her right, of the demanded premises.

<p>This was a libel in personam, by Cyrus B. Manchester against George Milne, to recover for freight and primage on a cargo of coal, shipped from Liverpool to New York, on board the ship American. On the hearing, the libellant proved the shipment of the coal, September 30, 1840, at which time the vessel was owned by the Messrs. Arnold. He put in evidence the bill of lading, which was for 200 tons of Orrell coal, at the rate of six shillings sterling per ton freight, and five per cent, primage. To show his right to maintain the action, he also put in evidence an assignment of the vessel and her freight, made November 21, 1846, by the then owners of the ship, to the libellant. The assignment was under seal, and executed in Providence, R. I., having been also acknowledged and there recorded. It was attested by two subscribing witnesses. The libellant proved the signature of one of these witnesses, and that such witness resided in Providence, and also proved the signatures of the assignors; but the residence of the other subscribing witness was not shown, nor his absence accounted for. The respondent objected that the proof of the execution of the assignment was insufficient, the absent witness not being shown to be dead, or to be out of the juristion of the court. The libellant contended that the acknowledgment of the instrument in the place where it was executed, being by the local law competent proof of its due execution, was also sufficient evidence here. The court ruled this point against him, but decided that the proof given established the due execution of the instrument, and that the libellant was entitled upon it to maintain the action. The respondent then gave evidence in defence, tending to show that the vessel made short delivers' of the cargo; that out of the two hundred tons mentioned in the bill of lading, less than one hundred and eighty-five were delivered at the port of consignment.</p>

<p>This was a libel in personam, by Cyrus B. Manchester against George Milne, to recover freight upon a cargo of coal. The cause was before the court upon the merits in 184S, when a decree was rendered in favor of the libellant. The proceedings upon that hearing are reported [Case No. 9,OOG]. The cause now came up upon appeal from a taxation of costs.</p>

Assumpsit to recover the amount of an internal-revenue tax, paid under protest. Facts agreed. Sylvia Ann Howland, of New Bed-ford, single woman, died July 2, 1865, and the plaintiff [Thomas Mandell], also of New Bedford, was during said year duly appointed executor of her last will, and was at the time of the suit such executor.

This was a petition to deprive the defendant of the benefit of the insolvent law, filed under the seventh section, upon an allegation that the defendant had given a preference to one of his creditors in a deed to La Mar, in trust to pay a debt due Margaret Jamesson in Ireland. Upon the insolvency of the defendant, this property was all given up to his trustee. If the deed be void, there was no preference given.

Assumpsit by the indorsee against the in-dorser of a promissory note made by John Mclver, payable to the defendant [Alexander Mackenzie], and by him indorsed to the plaintiffs [Mandeville & Jamieson]. The note was payable on the 19th of February, 1797, and protested for non-payment on the 20th.

Debt, against the maker of a promissory note. Sunday was the third day of grace, payment was demanded, and the note protested on Saturday after bank hours. The suit was brought the same evening, after protest. Verdict for the plaintiff, subject to the opinion of the court whether the suit was not brought too soon.

<p>On writ of inquiry. [Suit by Mandeville & Jamieson against Nathaniel Washington.]</p>

<p>Case No. 9,019.</p> <p>Collision — East River —Tug-Boat and Tow — Steamers Crossing — Wilful Tort— Joint Negligence.</p> <p>1. A tug, having several boats in tow, coming down the East river, on an ebb tide, rounded to to pick up another boat on the New York side, just above the Fulton ferry slip. A Fulton ferry-boat, coming out of that slip, came in collision with the stern boat on the port side. The ferry-boat claimed that, when she came out of the slip, the tug was going down the river, and that, after the feriy-boat got headed up the river against the tide, the tug turned around across her course. Her pilot stated that, as soon as he saw her sheer, he rang a bell to slow the engine, and then to stop and back; and the •engineer testified that he made four or five turns of the engine ahead, under the bell to slow, "before he stopped and backed. The speed of the ferry-boat was nearly done at the collision, and she struck the boat about twenty-five feet from her stern. The owner of the boat filed a libel against both the tug and the ferry-boat, but the tug was not seized under the process. On ihe trial, a motion was made, on behalf of the ferry-boat, that the libellant be compelled to bring in the tug. or the libel be dismissed. The motion was denied, but the libel was directed to be amended by striking out the prayer for process against the tug. On the trial, one of the libel-lant’s witnesses testified, that it looked to him as if the ferry-boat hit the boat intentionally. The owners of the ferry-boat claimed that she was not liable for the wilful tort of her pilot: Held, that, on the story of the ferry-boat, when the tug had turned so as to be heading across the river, the courses were crossing, and the fer-Ty-boat, having the tug on her starboard hand, was bound to avoid her and her tow, and when the tug had turned so as to head up the river, the ferry-boat was the following boat, and was still bou^d to avoid them.</p> <p>2. The ferry-boat was in fault in not stopping and backing at once, as soon as her pilot saw the tug turn, instead of keeping on under a slow bell.</p> <p>3. The act of the pilot of the ferry-boat was not wilful, in such sense as to relieve the ferryboat from liability for the result of it.</p> <p>4. Although the libel was filed against both tug and ferry-boat, the libellant could recover against the ferry-boat alone, because there was independent fault on her part, and any fault in the tug in sheering was not a fault which contributed to the collision.</p>

<p>Case No. 9,018.</p> <p>Bankruptcy — Provisional Assignee — Benefit to Creditors — Removal of Goods — Praud.</p> <p>1. A -provisional assignee should not be appointed unless the court is satisfied that it is necessary for the protection of the property, and that it will enure to the benefit of all the creditors.</p> <p>[Cited in Re Carrier, 47 Fed. 441.]</p> <p>2. The removal of a debtor’s goods in fulfillment of an existing contract made long before the commencement of bankruptcy proceedings, is not fraudulent within the meaning of the bankrupt act [of 1867 (14 Stat. 517)], and not sufficient grounds for the appointment of a provisional assignee.</p>

<p>Case No. 0,020.</p> <p>Shipping — Passenger Act — Steamships.</p> <p>The provisions of the second section of the passenger act of March 3d, 1855 (10 Stat. 715), do not apply to steamships.</p> <p>[Cited in The Devonshire. 13 Fed. 41; U. S. v. The Stratliairly, 124 U. S. 577, 8 Sup. Ct. 615.]</p> <p>This decision was affirmed by the circuit court, in October, 18G8. [Case No. 15,715.]</p>

<p>Case No. 9,021.</p> <p>Admiralty — Proceedings in Rem — Undivided Interest.</p> <p>Proceedings in rem in admiralty, cannot be instituted by a party against an undivided interest of an owner in a vessel.</p>

This suit was commenced in the supreme court of New York, and removed by cer-tiorari, on the petition of the defendant [Hugh Maxwell], into this court, under the provisions of the 3d section of the act of congress of March 2, 1833 (4 Stat. 633). The plaintiffs imported from Liverpool a quantity of cannel coal, invoiced and entered as of the weight of 150 tons. It was measured by the custom-house measurers, who returned the quantity to be 167 tons.

<p>Bill in equity by the Manhattan Life Insurance Company against the Farmers’ & Citizens’ National Bank, of Brooklyn, and Frederick A. Platt, receiver.)</p>

Action on a life policy of insurance. The premiums were payable one half by note, the other half in instalments in July and October. The premiums were so paid until July, 1873, when the insured requested that the dividend which had been allotted should be applied to the portion of the premium then due, which was refused. No other premiums were paid, and in November following the insured died. There was judgment for plaintiff for the full amount of the policy.

<p>Case No. 9,026.</p> <p>Trade-Marks — Entirety — Spurious Article-Laches — Territorial Limits — Relinquishment — Resemblance — Future Infringement.</p> <p>1. Trade-marks are an entirety, and are incapable of exclusive use at different places by more than one independent proprietor; for. in seeking redress, in order to establish an exclusive right to-the mark, the party must show an exclusive right to the commodity to which it is attached.</p> <p>2. Rights to a trade-mark may be forfeited if the mark is deceptively used to designate a spurious article, and a party thus affected can-convey no valid title in the mark to another.</p> <p>3. Equity will not decree for . an account of past gains and profits where there has been laches in bringing suit and long acquiescence in the adverse use of the.mark by others.</p> <p>4. Disregard of territorial limits allotted by license of proprietoi and misuse of the trademark, are a forfeiture of right, and a defeat tO' any valid conveyance by the wrong-doers.</p> <p>5. Voluntary relinquishment of the original mark of the proprietor for another, devised by the grantees themselves, is a forfeiture of right to the old mark no less than its misuse to designate a spurious article.</p> <p>6. Equity gives relief for the infringement of a trade-mark, upon the ground that one man is-not allowed to offer his goods for sale, representing the goods to be the manufacture of another in the same commodity.</p> <p>7. Two trade-marks are substantially the same, in legal contemplation, if the resemblance is such as to deceive ordinary purchasers, giving such attention to the same as purchasers-usually give, and to cause them to purchase the-one manufacture supposing it to be the other.</p> <p>8. Cases arise where the title is complete, when a party, though not entitled to a decree for an account, may still be entitled to a decree to prevent future infringements. But if the defendant has the genuine article, and manufactures it, and it is not protected by a patent, and the complainant has no exclusive right to the trade-mark, then the complainant can have no relief.</p> <p>9. If several alleged owners of a trade-mark, whose rights are determined by territorial limits. for years disregard each other’s rights, and mutually violate each other’s territorial privileges, and make no efforts to uphold the same, they cannot set up as valid what they themselves have destroyed, nor assign any exclusive valid claim therein to others.</p>

This was a libel by the Traders’ Insurance Company of Chicago and the Orient Mutual Insurance Company of New-Tork, against the propeller Manistee, to recover the amount of $10,700 insurance paid by them on the cargo of the schooner S. Robinson, which was sunk by collision with the Manistee.

<p>Case No. 9,028.</p> <p>Collision — Running in a Fog — Contributory Negligence — Patment bt Insurer before Filing Libel.</p> <p>1. When a steamer is running in a fog surrounded by sail vessels, and in close proximity to them, she ought to materially decrease her usual rate of speed. Seven miles an hour is entirely too fast under such circumstances.</p> <p>[Cited in The Leland, 19 Fed. 775; Clare v. Providence & S. S. Co., 20 Fed. 536, 53S.]</p> <p>2. In a collision where a fault is charged against one vessel, in relation to which the testimony is doubtful, and it appears by undisputed testimony that the fault of another is flagrant, tie latter only will be held responsible, and the doctrine of contributory negligence will not apply.</p> <p>3. Where a libel is brought by the underwriters for the loss of a vessel, they having paid the loss and claiming to be subrogated to the rights of the insured it is not material whether or no the money has actually been paid by them before the filing of the libel, if it was the bona fide intention of the owner to abandon.</p>

The Comet was bound from Grand Island,. Lake Superior, to Cleveland. Having rounded Whitefish Point at about 8 p. m. she saw the red light of the Manitoba when about one-fourth to one-half a point upon her port bow. The Comet immediately ported her wheel half a point and steadied.

<p>Case No. 9,030.</p> <p>Judgmext — Res J udtcata — Estoppel — Attachment — Nonresidext Debtor.</p> <p>Where process is to be served on the thing itself which is the subject of controversy, and where the mere possession of the thing itself by the service of that process, and making proclamation. authorizes the court to decide upon it without notice to any individual whatever, it is a proceeding in rem, to which all the world are parties, and in every such ease, the decree is conclusive evidence against all parties interested, though not brought before the court by process. But a foreign attachment (under the law of Virginia. see Rev. Code 1819. c. 123. p. 4741. is not a proceeding in rem. It is a suit by a plaintiff against defendants, and a decree in such a case is conclusive evidence only against parties and privies. Thus. C. being indebted to W., gave his note for the amount, and W. assigned the note to 3VI.. and W. afterwards left the country, R., a creditor of W., attached the effects of W. in the hands of C. C. had notice of the assignment of his note to M. A decree was rendered in favour of R. M. subsequently brought suit upon the note against C.. but the decree was satisfied before service of the process in the second suit. C. pleaded the decree in favour of R., in bar of M.’s right of action, and to this plea, SI. demurred. The court sustained the demurrer, on the ground, that a decree rendered in a suit between two parties, is not admissible evidence in a suit between one of those parties and a third party. But the court hold, that if M. had been a party to the first suit, the decree would have operated a bar, and the demurrer would have been overruled.</p> <p>[Cited in Cole v. Brandt. Case No. 2.978; Smith v. Miln. Id. 13.081; Miller v. TJ. S.. 11 "Wall. (78 XI S.) 328; Alabama & C. R. Co. v. .Tones. Case No. 127; Michaels v. Post, 21 Wall. (88 TJ. S.) 428.]</p> <p>[Cited in Smith v.' Blatehford. 2 Ind. ISO, 52 Am. Dec. 506; Bruff v. Thompson CW. Va.l G S. E. 359: Street v. Augusta Ins. it B. Co.. 12 Rich. Law, 13; 75 Am. Dec. 715. Cited in brief in Burtners v. Keren. 24 Grat 51. Cited in Holly River Coal Co. v. Howell. 36 W. Vn. 503.15 S. E. 218; Brown v. Smart, 69 Md. 333. 14 Atl. 472, and 17 Atl. 1101; Rigney v. Rigney, 127 N. 1\ 412, 28 N. E. 406.]</p> <p>NOTE. In Kelso v. Blackburn, 3 Leigh, 30G, Carr, J., said, that “the proceeding by foreign attachment, against absentees, was an innovation upon the common law; a proceeding in rem founded on the necessity of the case, lest there should be an absolute failure of justice, and like all ex parte proceedings, it was liable to great abuse, unless carefully watched and strictly confined to the ground covered by the law. It was not under their general jurisdiction that courts of equity took cognizance of those cases, but under particular statutes; and these, it would be found, had, with special care, marked out the extent and described the manner of the proceeding/’ It is very apparent, from an examination of the case of Kelso v. Blackburn, that Judge Carr did not intend to say, that the proceeding by foreign attachment, in Virginia, was, in the strictest, sense of the term, and to all intents, a proceeding in rem, but simply that it was in the nature of a proceeding in rem. The question in that case was, whether the essential circumstance of the non-residence of the debtor was set forth with sufficient distinctness in the complainant’s bill, the foundation of the jurisdiction of the court being the non-residence of the debtor, and his having effects in Virginia. If, because cognizance of the proceeding in foreign attachment was not taken by courts of equity, by virtue of their-“general jurisdiction,” but under “particular statutes.” and because it was “liable to great abuse.” the proceeding should be “carefully watched and strictly confined to the ground covered by the law,” it is clear that the judge did not intend to lay down tne general proposition in a sense which would abolish the familiar rule of evidence, that judgments or decrees are only evidence against parties and privies, in a sense which would give a decree in a proceeding by foreign attachment, a more extended operation against third persons than an ordinary decree of a court of equity, it is most obvious, that the learned judge, in speaking of the liability to abuse, in the proceedings by foreign attachment under an act of assembly, “like all other ex parte proceedings,” had reference to the absent defendant himself (and to none other), against whom, from the very necessity of the case, the law was compelled to substitute the formal and constructive notice by publication, for the actual service of process required in the case of home defendants.</p>

<p>Case No. 9,Q3L</p> <p>Chattel Mortgage— Stock ix Trade— Possession' lit Mortgagor — Identification—Bankruptcy — Eights op Mortgagee.</p> <p>1. Where a chattel mortgage was given, to secure the payment of a promissory note, payable one day after date, and the mortgaged property, being books, stationery, etc., remains in possession of the mortgagor, who carries on his business, as a retail bookseller, as before the mortgage, selling the stock mortgaged, and replacing it by the purchase of other stock, until there can be no identification of the articles specified in the mortgage, and the mortgagee assents, for years, to this course, such mortgagee, when proceedings in bankruptcy are commenced against the mortgagor, has no right, under the mortgage, to the possession of the s*oek in his possession at the time of the bankruptcy.</p> <p>[Cited in Catlin v. Currier, Case No. 2,518; Bobinson v. Elliott, 22 Wall. (89 ü. S.) 520; Johnson v. Patterson, Case No. 7,403.]</p> <p>2. Under the facts stated, the mortgagee has no lien on the stock, and can only share, pro rata, with other creditors, in the proceeds of the sale of the stock.</p>

[Application by Robert J. Mann for letters patent for an improved method of making hoop-skirts. A patent was refused by the commissioner. Applicant appeals.]

[In review of the action of the district court for the Northern district of New' York.] [In the matter of Henry A. Mann, an alleged bankrupt.]

In this cause, complainant’s bill recites that he is owner of letters patent of the United States, dated February 28, 1871, being, a reissue and extension of letters patent No. 15,044, dated June 3, 1850, said reissued letters patent being numbered 4,2S1, for an improvement in harvesters, complainant having been one of the original patentees, and having acquired the interest of his co-pat-entee, Jacob J. Mann, by an assignment from said Jacob's administrator.

This was a bill in equity [by Samuel F. Mann and others] for an abatement of a nuisance to the cotton mills of the plaintiff, situate on the Blackstone river, by the defendants [George Wilkinson and others], by raising the dam of a mill, called the “Albion Mill,” lower down on the stream, and thereby flowing back the water upon the plaintiff’s mill-wheel. At a former hearing the court made an interlocutory decree, by which the cause was referred to a master.

This is a suit for damages. The defendant •on the 25th of December last, captured on the high seas, and carried into the island of Cuba, the schooner Ann, with a cargo of slaves. [Henry Maurice] Sacks at that time command■ed a French national brig called La Sophie, and was duly commissioned to cruize.

<p>Case No. 9,038.</p> <p>M., who was a man of large</p> <p>property, refused BANKRt~PTC~-SUSPENS1ON OF CoMME1wi~L PAPEIt -B0NA FInE DEFENCE. to pay a note which he had made, being advised by counsel, and believing, that he had a valid defence against it. A suit was thereupon brought against him, in a state court, by the holder of the note; and, while that suit was pending, the holder of the note filed a petition against M. in involuntary bankruptcy, alleging that he had suspended payment of the note for fourteen days. Held, that the case was not a proper one for an adjudication of bankruptcy, and that the petition must be dismissed.</p>

[These were bills in equity by George A. Mannie and William H. Bogart against Sidney J. Everett and Archibald S. Van Orden for infringement of letters patent. Heard on motions for preliminary injunction.]

[In review of the action of the district court of the United States for the Northern district of Illinois.] Petition of review filed by William J. Manning, against whom adjudication of bankruptcy had been entered as partner with Edmund Shanahan and James West.

[This was a bill in equity by John J. Manning and Caleb J. Norwood against the Cape Ann Isinglass & Glue Company and others, to restrain the infringement of certain letters patent.']

This suit is brought by the plaintiff [Charles Manning], a citizen of California, against the defendant [Benjamin Hayden], a citizen of Oregon, to compel a conveyance of certain premises situated in Polk county, containing three hundred and nineteen acres, and known as the south half of the Bethuel and Rachel Dove donation, the same being parts of sections 2 and 3, in township 8 south, of range 4 west, of the Willamette meridian.

<p>This was a libel in personam, by Still Manning against Norman C. Hoover, owner of the sloop Cornet, to recover damages for nonperformance of a contract of affreightment. It appeared, in this case, that the libellant was the owner of 1857 bushels of corn, and 70 bushels of wheat, stored at the city of Brooklyn. The defendant contracted to carry the grain in his sloop to the city of New York, at a specified price per bushel. He received the corn on board his vessel, and was paid freight for the whole quantity; but the quantity actually delivered by him at New York, as there measured by weight, was only 1759 bushels, 24 lbs., thus leaving a deficiency of 97 bushels; to recover for which this action was brought. The defence was, that under the circumstances of the case, the loss was to be attributed, not to any default on the part of the vessel, but to inaccuracy of measurement, and to waste necessarily incidental to the lading and unlading of such a cargo. The evidence upon this point is fully stated in the opinion.</p> <p>I. It is unnecessary for the libellant to show negligence on the part of the carrier. It is sufficient to show the shipment of a certain quantity, and it is for the carrier to show either a complete delivery or an excuse by vis major.- He is liable for all thefts, robberies, and embezzlements by any of the crew, or by any other person, although he may have exercised every possible vigilance to prevent the loss. Story, Bailm. 528. And the mere fact that the owner or his servants go with the goods, if the other circumstances of the ease do not exclude the custody of the carrier, will not of itself exempt him from responsibility. Id. 533.</p> <p>II. The master and owners of a ship are responsible for the goods which they have undertaken to carry, if stolen or embezzled by the crew, or any other person, though no fault or negligence may be imputable to them. Schieffelin v. Harvey, 6 Johns. 170.</p> <p>III.The master and owners of vessels who undertake to carry goods for hire are liable as common carriers, whether the transportation be from port to port within the state, or beyond sea, at home or abroad; and they are answerable as well by the marine law as the common law, for all loss not arising from inevitable accident, or such as could not be foreseen or prevented. Elliott v. Rosscll, 10 Johns. 1; Kemp v. Coughtry, 11 Johns. 107; McArthur v. Sears. 21 Wend. 190.</p> <p>IY. Where the goods are embezzled or lost during the voyage, the master is bound to answer for the value of the goods missing, according to the clear net value of goods of like kind and quantity at the port of delivery. Watkifison v. Laughton, 8 Johns. 213.</p> <p>V. If freight be paid in advance, aud the goods be not carried by reason of any event not imputable to the shipper, it may be recovered back. Watson v. Duykinek, 3 Johns. 335.</p> <p>YI. In an action for the non-delivery of goods, pursuant to a contract of affreightment, the measure of damages is the value of the goods at the port of destination, but without interest, unless there has been fraud or misconduct on the part of the defendant. Amory v. McGregor, 15 Johns. 24, 38.</p>

Money had and received. The evidence was a verbal agreement between the plaintiff and the defendant to share the commissions on the sales of a cargo in the West Indies, the plaintiff being master, and the defendant supercargo. There was no special agreement stated in the declaration; and there was no evidence that the defendant had actually received the commissions.

<p>Case No. 9,047.</p> <p>Agency to Procure Insurance — Verbal Contract — Liability—Neoiigexce—Subrogation.</p> <p>1. A direction by a principal to his agent to procure a policy of insurance is not satisfied by a verbal contract for insurance.</p> <p>2. If an agent has undertaken to procure insurance, but has done- it so negligently that a loss- which occurs is not covered by the policy, he is liable to his principal.</p> <p>[Cited in Marquardt v. French, 53 Fed. 600.)</p> <p>3. If an agent to procure a policy of insurance merely makes a verbal contract for insurance, and a loss occurs, his principal cannot be put to uncertain and expensive resource of a suit on such contract against the insurer, but the agent must make good the loss.</p> <p>4. If he have a valid verbal contract, he must pay his principal, when he will be entitled to an assignment of it, or may sue on it in the name of his principal.</p>

<p>Case No. 9,048.</p> <p>Bankruptcy — Counsel Fees — Services before Adjudication.</p> <p>1. A petition in involuntary bankruptcy was filed against a firm, an injunction preventing them from parting with any of their property was issued, and a warrant of arrest under the 40th section of the act [of 1807 (14 Stat. 530)] was issued against one of the firm. The bankrupts employed attorneys, who applied for a discharge of the arrest, and attended on a reference to ascertain the facts, which resulted in the discharge of the warrant. An adjudication being had, the attorneys prepared the schedule and inventory reguired by the 41st section. Thereafter they applied by petition to be paid for such services out of the estate. Held, that, under the circumstances, a moderate compensation for such services would be allowed them.</p> <p>2. The proper practice, in such a case, is for the bankrupts to apply to the court in the first instance for leave to employ counsel.</p>

<p>In bankruptcy.</p>

<p>Case No. 9,050.</p> <p>State Exemption Laws — Homestead — Execution — Homestead Exemption Laws.</p> <p>1. State exemption laws apply to process issued from the federal courts. The homestead of the head of a family is exempt from sale on a judgment rendered by a court of the United States in the same manner as upon a judgment of a state court.</p> <p>2. Where a portion of the defendant’s lands, on which is situated a dwelling-house far exceeding the value of the homestead entitled to exemption, is subject to a mortgage nearly equal to the value of that portion of his lands, and the defendant has another parcel, on which is a dwelling occupied by part of his family, of a value within the limits of the statute exemption, he is entitled, upon his request, to have the latter sot off and exempted from sale on execution.</p>

This was an application by R. J. Smith & Co., of Chicago, for a rule on the Manufacturers’ National Bank of Chicago to show cause why it should not be adjudged a bankrupt.

<p>[This was a bill in equity .by the Manufacturers’ National Bank of Chicago against Edward Baack and Edward Baack, Jr. Heard on an application for an injunction and receiver.]</p>

<p>[In the matter of Francis Many and James Marshall, bankrupts. For prior proceedings in this litigation, see Case No. 9,054.]</p>

Motion by the assignee in bankruptcy of the Ann of Many & Marshall, to expunge or reduce a proof of debt by one Joshua A. Clark upon certain notes. The bankrupts [Francis Many and James Marshall], composing the firm of Many & Marshall, prior to their failure, had been hardware dealers in New York. The notes in question had all been either made or endorsed in the firm name, by Francis Many, one of the bankrupts.

This was an action on the case, to recover damages for the infringement of letters patent [No. 640], issued to Samuel Truscott, George Wolf, and James Dougherty, of Columbia, Pennsylvania, on the 17th of March, 1S38, for “a new and useful improvement in the mode of making cast iron wheels to be used on rail-roads and applicable to other purposes.” The plaintiff was assignee of the entire interest in the patent, (which was commonly called the Wolf patent,) for the whole…

This was an action on the case, tried before Judge Sprague and a jury, for the infringement of letters patent [No. 640] granted to Trescott, Wolf, and Dougherty, March 17, 1848, and assigned to plaintiff [William V. Many], for a new and improved mode of constructing cast-iron wheels for railroad cars.

[This was a suit by William V. Many against George W. Sizer and Henry Sizer to enjoin the infringement of letters patent No. 640 granted to Trescott, Wolf, and Dougherty, March 17, 1848. The cause is heard on a motion for a provisional injunction founded upon the verdict of the jury in an action of trespass on the case between the same parties. Case No. 9,056.]

<p>Case No. 9,058.</p> <p>Salvage — Small Skill — No Great Danger— Merit.</p> <p>[Salvage services rendered, without uncommon skill or exertions, to a ship in no great danger of loss, are of small merit.]</p>

Debt [by Sebastian S. Marble against James E. Fulton, and others] for the penalty of a bail bond. Upon oyer it disclosed a condition for the appearance of the principal in court to answer to a creditor’s petition in bankruptcy against him, and for his appearance from time to time as required by the court until decision upon the petition or until further order of court. Plea. Omnia performavit. Replication.

<p>[In the matter of the petition of the creditors of J. F. Marcer, a bankrupt.]</p>

Bill in equity [by George N. March against Samuel W. Heaton and Hubbard] to set aside the sale of a stock of goods. The bankrupts applied for the benefit of the act in the month of August, and there was some delay in the appointment of an assignee. In the mean time certain creditors petitioned the court to order the stock of goods to be sold, on the ground that they were liable to deteriorate and depreciate.

<p>This was a libel In admiralty to recover damages to the sloop Diploma, arising from a collision in Boston harbor, in October, 1856, between that vessel and the schooner Marcia Tribou. The facts were as follows; The sloop, with a load of stones and gravel, beat up the harbor till she arrived at a point between Bird Island and East Boston, where, owing to the strength of the tide and the decrease of the wind, she came to anchor in the channel, to await the turn of the tide. The precise part of the channel where she anchored was disputed, and evidence was introduced by the libellant to show that the place of anchorage was on the north side of the channel and within the harbor-master’s line; while evidence to the contrary, and that she was anchored nearer mid-channel and outside of the said line, was introduced by the claimants. After she had been at anchor for about three-quarters of an hour, and while her crew, consisting of a man and boy, were in the cabin at dinner, she was run into by the schooner which was bound out, and was damaged. The schooner received no injury. It was urged on the part of the claimants that the Massachusetts act of 1848, c. 314 [Laws Mass. 1868, p. 800], rendered it obligatory upon all vessels not only to anchor within such lines as should be established by the harbor-master, but while at anchor to keep an anchor-watch on deck; and that if the court should be satisfied that the sloop was not within these lines, and kept no watch on deck, the libellant was thereby deprived of all remedy against the schooner, notwithstanding that she may have been also guilty of negligence which contributed to the collision. The libellant controverted this position, and cited The New York v. Rea, 1§ How. [59 U. S.] 223.</p>

The indictment contained two counts: 1st. That Wm. H. Marcus, on the 10th of Nov., 1859, and on divers other days and times, between that day and the day of the taking of this inquisition with force and arms, at the county aforesaid, a certain faro bank there situate, for their lucre and gain, unlawfully and injuriously did keep and maintain against, &c. 2d. That Wm.

[Application by E. E. Marcy for letters patent for an improved process for curing India rubber.- An interference with the patent of John E. Trotter was declared, and the commissioner thereafter denied Marcy’s application. Applicant appeals.]

Action on a policy, dated 14th December, 1812, on goods on board the brig Betsey, at and from Cape Henry to Lisbon, at a premium of 6 per cent, valued at five thousand dollars, the sum underwritten; declared to be against all risks, except British captures; warranted neutral.

In the year 1859, the libellant brought his libel in this court, and therein alleged that the respondents were owners of three fourth parts of the ship Marengo, and were about to send her to sea on a whaling voyage, against the remonstrance of the libellant, who owned the remaining one-fourth part; and he prayed that his share might be appraised, and stipulation be taken in this court for its safe return: all which was done.

<p>In admiralty.</p> <p>cited Christie v. Craig, 2 Mer. 137.</p> <p>cited Haskins v. Pickersgill, 2 Marsh. Ins. 727; The Dundee, 1 Hagg. Adm. 109; Gale v. Laurie, 5 Barn. & C. 156; Richardson v. Clark, 15 Me. 421; Laño v. Neale, 2 Starkie, 105; Kynter’s Case, 1 Leon. 46, 47; Starr v. Goodwin, 2 Root, 71; Briggs v. Strange, 17 Mass. 405, 20 Roccus, Moll, de J. Mar. lib. 2, c. 1, § 8; Emerigon, c. 4, § 7; Hall v. Ocean Ins. Co., 21 Pick. 472. See, also, Shannon v. Owen, 1 Man. & R. 392; Willings v. Blight [Case No. 17,765]; The Orleans v. Phoebus, 11 Pet [36 U. S.] 175; The Seneca [Case No. 3,650]; Lor-ing v. Illsley, 1 Cal. 24; The Apollo, 1 Hagg. Adm. 311; The Petrel, 3 Hagg. Adm. 299; Ro-dick v. Hinckley, 8 Greenl. 274; Fox v. Paine [Case No. 5,014]; Buddington v. Stewart, 14 Conn. 404; 3 Kent, Comm. 153, 156; Graves v. Sawcer, 1 T. Raym. 15, 1 Lev. 29; Gould v. Etanton, 16 Conn. 12; Moody v. Buck, 1 Sandf. ¿04; Langton v. Horton, 6 Jur. 594, 23 Leg. Obs. 524; 2 Starkie, 105; Woods v. Russell, 5 Barn. & Aid. 942.</p>

This was an appeal -from the decree of the district court, dismissing a libel filed by Charles F. Bliss et al., owners of the brig Mechanic, against the tug Margaret, to recover damages by reason of the -grounding of the brig while entering the harbor of Racine in tow of the Margaret. [Case unreported.]

Libel for collision, by Pickering, master of the schooner Margaret, against the steamship Catharine Whiting. Upon the night of November 2, 1877, the steamer Catharine Whiting was proceeding up the river Delaware in mid-channel, nearly opposite Salem creek, under steam; at the rate of about six miles per hour, with proper lights, and a good and sufficient lookout. The tide was about flood, and the wind blowing up the river.

A collision had taken place in the dark between a schooner and a steamboat, in which the schooner was sunk and lost. The testimony was in conflict throughout; the hands on the schooner swearing that the accident was caused by the fault of the steamboat: and those bn the steamboat swearing it was owing to the fault of the schooner.

This was an appeal from the district court of Maine in a proceeding upon an information in rem on the instance side of that court. The information contained two counts.

<p>Case No. 9,071.</p> <p>Prize — Blockade.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

<p>Case No. 9,073.</p> <p>Prize — Enemy Property — Claim by Neutral— Clandestine Voyage — Blockade—False Papers — Log-Book.</p> <p>No legal transfer of the vessel shown from her enemy owner to her neutral claimant. She came out of the blockaded port clandestinely, on the voyage next preceding the one on which she was captured. She knowingly attempted to violate the blockade. Her papers were false as to her destination. Her log-book was mutilated and altered. Vessel and cargo condemned.</p> <p>[See The Albert, Case No. 138.]</p>

This was a suit in rem for seaman’s wages. The defence was, that the libellant had, by disobedience and misconduct in the port of New-Orleans, forfeited his wages, wearing apparel, &c. The shipping articles were for a voyage from Boston to New-Orleans, thence to a port in Europe, and thence to the United States.

<p>Case No. 9,075.</p> <p>Shipping — Sale to Foreigner — Forfeiture — Corporation — Ox Credit — American Register —Seaman’s Wages — Unlicensed Engineer.</p> <p>1. A sale of a vessel to a corporation organized and existing under the laws of a foreign country, is a sale ‘‘to a subject or citizen of a foreign prince or state,” as the case may be, within the meaning of section 16 of the registry act d Stat. 295). without reference to the nationality or citizenship of the shareholders therein.</p> <p>2. But if such corporation were not a subject within the purview of' such section, then if any of the shareholders therein were such subjects, such sale would be thus far, and therefore “in part,” a sale “to a subject or citizen of a foreign prince or state.”</p> <p>3. A sale upon credit, and upon the condition that the purchaser shall not use the vessel until the purchase money is all paid, and that if default is made therein, the seller may retake the vessel into his possession, is a sale within such section 16.</p> <p>4. Sale of vessel to a subject of a foreign prince, how and by whom made known, and upon whom, is the burden of proof concerning the omission to make such sale known.</p> <p>5. Upon the sale of a vessel to such subject, she is no longer entitled to the benefit of her American register;*and if she is afterwards navigated thereunder, it is a violation of section 27 of the registry act (1 Stat. 298).</p> <p>6. An unlicensed engineer cannot recover wages for services on a steam vessel engaged in carrying passengers on the waters of the United States.</p>

The petitioner, negro Maria, claimed her freedom by reason of importation, contrary to the act of Maryland, 1796, c. 67; by the first section of which it is enacted, “that it shall not be lawful to import or bring into this state, by land or water, any negro, .mulatto, or other slave, for sale, or to reside within this state.

<p>Case No. 9,078.</p> <p>International Law —Duties or Neutral Powers — Neutrality.</p> <p>The law of nations requires that strict neutrality should be observed between belligerents by other powers.</p>

<p>Case No. 9,077.</p> <p>Prize — Enemy Property — Salvase—After Capture.</p> <p>1. Vessel and cargo condemned as enemy property.</p> <p>2. The vessel and cargo having been shipwrecked after seizure, and having been saved by salvors, the court allowed to the salvors, as salvage, one-half of the net proceeds of the salved property, deducting the costs incurred by the United States in the prize suit.</p>

[Appeal from the district court of the United States for the Eastern district of Wisconsin.] In admiralty. Libel by the Northwestern Transportation Company, as owners of the propeller Cleveland, for damage caused by collision with the barque Maria Martin. [From a decree of the district court dismissing the libel (case unreported), the libelants appeal.]

This was an appeal from a decree of the district court on the libel of the Portuguese ship Marianna Flora, by Robert F. Stockton, commander of the United States ship of war, the Alligator, in behalf of himself and his officers and crew; Philip Marett, the Portuguese vice consul, and Vertura Anacleto De Britto, being claimants and respondents in behalf of the owners of the Marianna Flora and cargo.

In admiralty. Libel in personam by the owners of the vessel against the shippers, to recover freight according to the terms of a bill of lading, for carrying a cargo of ice from Gardiner, Maine, to New Orleans, that had been sold on arrival by the master from necessity, inasmuch as it was perishable and the consignees had refused to receive it.

<p>Case No. 9,082.</p> <p>Shipping — Illegal Seizure op Vessel bt American Consul — Lien por Wages.</p> <p>[2. There is a lien created against the vessel, both for wages and for pilotage.]</p>

<p>[Libel for salvage by George A. Savage and others against the schooner Maria Pite and cargo.]</p>

<p>Case Wo. 9,084.</p> <p>Collision — Rn.Es or Evidence — Contradicting Witness — Deposition before Inspectors - —Por "What Deed.</p> <p>1. In a plenary cause of collision, a witness was regularly examined for the libellants. He had been previously examined on oath in an investigation before the board of inspectors of steam vessels under the authority of an act of congress. The respondents could not use his deposition before the inspectors as evidence of what the witness stated in it, but could only use it for the purpose of contradicting him.</p> <p>2. However the application of ordinary rules of evidence may be relaxed in a court of admiralty in proceedings which are summary and informal, there is no such relaxation in plenary causes.</p> <p>[NOTE. An appeal was subseqxxently taken to the circuit court, where there was a decree for the libelants and a reference made to a commissioner to ascertain and report the damages. 9 Fed. 169.</p> <p>[This cause was also before the courts on a libel in rem filed by the widow and daughter of Silas E. Rickards, the first officer of the schooner Marietta Tilton, for damages for his death. There was s decree in the district court in favor of libelants, and damages awarded at §5.100. Case unreported. On an appeal to the circuit court the decree of the district court was affirmed. 15 Fed. 610. It was then appealed to the supreme court, where the decree of the circuit court was reversed. 119 TJ. S. 199, 7 Sup. Ct. 140.]</p>

The amount of wages was not disputed. The seamen were charged with a sum each (the whole being in the ratio of wages, averaged on the officers and crew) for a loss to the ship, in consequence of embezzlement of part of a box of cambrics and lawns, to a considerable amount It appeared, from circumstances, that the embezzlement took place at the time of lading the ship in Liverpool, though it was not discovered until she was unlading at the port of Philadelphia.

The claim of the seamen consisted of two parts— First. A demand for six dollars, each, retained by the owner [Ketland], to indemnify him against a suit brought against the master [Williamson], in a common law court, for running down and damaging a schooner at sea. This suit is pending and undetermined, and the captain agreed that he meant to contend the point; alleging that no negligence or misconduct on his part, or that of the crew, occasioned the accident.

[Appeal from the district court of the United States for the district of Massachusetts.] Libel for repairs and materials for the schooner Marion, and work and labor done on her in the port of New Bedford, to which port the schooner belonged, in October and November, 1839, amounting in .the whole to the sum of $221.49. There was no dispute about the amount due for the repairs, work, and materials.

[Appeal from the district court of the United States for the district of Louisiana.] This was a petition filed in the district court bv certain creditors of A. P. Marion-neaux, a bankrupt, to annul his discharge, on the ground that it was fraudulently obtained.

<p>[This was a suit by the Mariposa Company against C. C. Bowman.]</p>

<p>Case No. 9,090.</p> <p>Usury — Nf.w York Statute as to Corporations —Accommodation Endorsers — Effect of Usury on Contract.</p> <p>1. The statute of the state of New York, that no corporation shall interpose the defence of usury, does not extend to suits against accommodation endorsers for corporations.</p> <p>2. Where the law of a state forbids a corporation taking over a cei‘ain amount of interest, is a contract for a greater amount void? If not void, the surplus interest paid should be credited to the debtor, as not collectible.</p>

Bill in equity for the discovery and production of the original application for a policy of insurance, and of a policy of insurance alleged to have been made by the defendants in accordance with the application, such discovery and production being sought to enable the complainant to maintain a suit at law; and also for the specific performance of an alleged agreement to deliver a policy of insurance and a decree for the delivery of the policy to the complainant.

[Suits by Francis Markoe and wife against Virgil Maxcy and James Chester, Jr., and by George W. Hughes and wife against the same parties.] These were bills in equity by husband and wife against trustees; stating, that before marriage, the wife conveyed certain personal property to the defendants in trust for the sole and separate use of the wife.

<p>Case No. 9,094.</p> <p>Bankruptcy — Partnership—Discharge of Partner.</p> <p>[Where there are no partnership assets to be collected and distributed, an individual member of a former partnership may, upon his own petition, be discharged from all his debts, both partnership and private.]</p> <p>[Cited in Re Plumb, Case No. 11.231.]</p>

<p>Case No. 9,095.</p> <p>Bankruptcy — Seizure by Marshal — Indemnification — Suit by Claimant — Assignee —Injunction Sought.</p> <p>1. The United States marshal, under provisional warrant to seize the effects of the bankrupt, took goods claimed by one W.. and being indemnified under G. O. No. 13. delivered the same to the assignee in bankruptcy. W. sued the marshal upon the tort in the state court. The as-signee claimed the lawful possession of the property; alleged the claim' of W. thereto to be illegal, and that he disposed of a portion thereof while in his possession, and prayed that W. be ordered to account therefor, and be permanently enjoined from prosecuting his action against the marshal., .field. that the facts do not warrant the granting of such injunction; the marshal is re-1 sponsible if he seized property not belonging to the bankrupt, and the petitioning creditors are bound to defend him in the suit by the claimant.</p> <p>[Cited in Marsh v. Armstrong. 20 Minn. 81 (Gil. GO); Clark v. Binninger. 38 How. Pr. 342.]</p> <p>2. But the summary mode instituted by the assignee, by the petition, to collect the portion of the bankrupt's assets withheld, is not objectionable. Sale of the property ordered, and proceeds to await further order of the court.</p>

Action of indebitatus assumpsit, for money had and received to use of bankrupts, and goods sold and- delivered by them. Plea, non assumpsit, and notice to offset.

<p>Case lío. 9,097.</p> <p>Bankruptcy — Usury — Suit to Recover by As-signee — Amount Recoverable.</p> <p>|1. An assignee in bankruptcy is the “legal representative” ot a bankrupt within the meaning of the term in section 5198. Rev. St., empowering a person or his legal representative to recover by action usurious interest paid to national banks.]</p> <p>[2. Where usurious interest has been actually paid, double the amount thereof may be recovered from a national bank under the provisions of section 5198, Rev. St.]</p>

This is a bill in equity filed in the circuit court of the United States for the district of Minnesota, praying for an injunction, and relief. The plaintiffs [Herman Markson and Hugh M. Spaulding] are assignees in bankruptcy of one Antipas Thomas, and bring this bill in that .capacity, alleging themselves to be citizens of the state of Kansas.

The plaintiff [Herman Markson], as assignee in bankruptcy of A. Thomas & Co. recovered at this term against the defendants, in six actions, verdicts for the sums severally received by them as creditors of A. Thomas & Co. A motion was made by the defendants for a new trial. [For prior proceedings in this litigation, see Case No. 9,098.]

At this term, N. Hobson, and others, were convicted on an indictment for forcibly resisting and impeding certain officers of -the customs at Rowley, within the collection district of Newbury port, against the 71st section of the act of the 2d of March, 1799, c. 128 [e. 22], The fines imposed by the court having been paid into the hands of the marshal, a motion was made in behalf of Mr. Marquand, collector of Newburyport, to have the same paid over to him for distribution,…

The Marquette was sunk in the Straits of Mackinaw by a collision, and abandoned by her owners to the underwriters, and there lay sunken in about fifteen fathoms of water. The underwriters contracted with the Northwestern Wrecking Company, a corporation organized under the laws of Ohio for the raising of sunken vessels, to raise the Marquette, and place her in Clark’s dry dock, in the city of Detroit, for six-tenths of the vessel.

[This case was before the court in October, 1874, upon another point. See Case No. 9,103.] A motion was made in the district court by [Thomas B. Marrett] the assignee in bankruptcy of John W. Baker, surviving partner of Atterbury, Baker & Co., that the proof of the claim or debt of Edward J. C. Atterbury be declared fraudulent as to creditors, and that no dividends be paid thereon. This motion was resisted by the said E. J. C. Atterbury.

The bill of complaint in this case is filed by [Thomas B. Marrett] the assignee, to determine which party to this suit has the right to the real estate mentioned therein, standing of record in the name of Livingston Atter-bury and John W. Baker. The defendant [William] Murphy claims the better right to the interest of Atterbury in the real estate, by virtue of two judgments and executions levied.

<p>Case No. 9,105.</p> <p>Prize — Blockade—Papers Thrown Overboard.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

<p>[This was a libel by'George W. Marriner and others against Charles Luting.]</p> <p>This was an action to recover a balance of charter money. The vessel was, by the charter, to have <-a full cargo of molasses, with 10 per cent, on the number of pieces for small stowage.” The charterers did not furnish a full cargo, and on her arrival a dispute arose between the parties as to her capacity. They agreed to leave it to two stevedores to determine, and the stevedores made their report that she would carry 576 hogsheads, 20 tierces, and 56 barrels, and libellants presented a bill made out in that way. The respondent, however, was not satisfied with this award, and the parties met again. He claimed that she would not carry more than 552 hogsheads, and they finally agreed to split the difference on the hogsheads. The respondent, when the bill was again presented next morning, claimed that he should not pay freight on more than 564 hogsheads and 56 barrels, being 10 per cent, on the number of hogsheads. The libellants, however, claimed that they had agreed to settle the bill as it was now made out, deducting the twelve hogsheads agreed to be thrown off.</p>

[Appeal from the district court of the United States for the district of Massachusetts.] The information in this case proceeded for a forfeiture of the brig Mars, upon the allegation that the brig departed from the United States, bound to a permitted port, without giving bond pursuant to the act of 1st March, 1809, c. 91, § 10.

<p>Case No. 9,107.</p> <p>Patents — Grain Ventilator — Tubes — Side Walls.</p> <p>[A device consisting of perforated tubes set vertically in a grain-bin so as to allow a free circulation of air through the grain, thus preventing overheating, is anticipated by a prior invention of hollow perforated side walls, for the same purpose.]</p>

This case came before this court, upon a question adjourned from the district court of New Hampshire, as follows: “Whether the verdict of the jury may be set aside and a new trial may be granted upon the accompanying petition and statement.” The case was submitted without argument.

<p>[In the matter of Marsh and Burnett, bankrupts.]</p>

<p>[This was a suit by Marsh and Compton against Bennett, Gilbert, and others. Heard on motion to dissolve an injunction.]</p>

[These were suits by William N. Marsh and others against Burroughs and others, and Thomas R. Mills, Jr., administrator with the will annexed of George Hall, deceased, and by Levi H. B. Scott against the same. For two similar cases by the same plaintiffs, previously decided, see Cases Nos. 6,203 and 9,112.]

In equity. Submitted for. final decree upon the pleadings and evidence. [This was one of a number of proceedings brought both at law and in equity by William N. Marsh and others against the stockholders of the Merchants’ & Planters’ Bank of Savannah to enforce the payment of claims against the bank. For a suit at law involving nearly the same questions as in this case, but brought under the Georgia statute against a stockholder fully paid up, see Case No. 6,-203.]

<p>[This was an action by Fennimore C. Marsh against the city council of Charleston. Heard on demurrer.]</p>

Final hearing on pleadings and proofs. Suit brought on reissued letters patent, granted James S. Marsh, for “improvement in harvesters,” September 11, 1866, No. 2,354, •as a reissue of the patent [No. 37,630] granted him February 10,1863. The first engraving shows the machine as patented by Marsh. The second shows the machine as afterward improved by him, and described in a later patent.

<p>Case No. 9,116.</p> <p>Continuance — Deposition Expected — Diligence.</p> <p>A deposition expected which may be material on the merits, and where proper diligence has been used, is a ground for the continuance of a cause.</p> <p>[Cited in brief in Fisher v. Greene, 95 Ill. 95.]</p>

<p>Case No. 9,117.</p> <p>Mauitime Lien's — Supplies—Home Pout — Conflict op Liens — Mortgage — Repairs.</p> <p>1. By the maritime law there is no lien for supplies in the home port. The.credit is supposed to be given to the owner, and not the ship.</p> <p>2. J. C. owned the brig M. and sold to T., who secured the purchase money by a mortgage duly executed and recorded. Subsequent to the sale and execution of the mortgage, J. M. & Son repaired the brig and kept her in their custody until the marshal attached her; B. & T. furnished ship chandlery, but were at no time in possession; H. S. did the joiner work, but was at no time in possession: Eeld, that these liens must be marshaled, as follows: First, .T. M. & Son, the shipwrights, must be paid, because they had a strict maritime lien, and had possession, and no act of the owner can defeat a lien which the law creates; second, the mortgagee; and third, the balance ratably to the other libelants.</p> <p>[Cited in The St. Joseph, Case No. 12,229. Cited in note in The Skylark, Id. 12.928. Cited in brief in The Illinois, Id. 7,005.]</p> <p>3. The mortgage act of 1850 [9 Stat. 440] considered and interpreted.</p> <p>[Cited in Srodes v. The Collier, Case No. 13,-272.]</p> <p>4. Where the vessel is in her home port, and the material men are not in possession, and no local law recognizes their claims as privileged, they must be postponed to the mortgage creditor who has an interest in rem.</p>

This was a libel in personam on a policy of insurance. The libellants, Marsh & Sternberg, partners in trade in the city of Buffalo, made an agreement with William B. Hibbard, of Milwaukee, to purchase wheat for them at Milwaukee and ship it to Buffalo, libellants to pay for each cargo, and if there should be a profit on a cargo Hibbard was to have half the profit, and if there were a loss on a cargo he was to pay half the loss.

Demurrer to bill in equity. Suit brought by complainant, Hiram H. Marsh, to obtain a patent upori an “improvement in cultivators,” by proceedings under section 52 of the patent act of 1870, which reads as follows: “That whenever a patent on application is refused,, for any reason whatever, either by the commissioner or by the supreme court of the District of Columbia, upon appeal from the commissioner, the applicant may have remedy by bill in equity; and the court having…

<p>Claim for twelve leagues of land in Contra Costa county, rejected by the board, and appealed by the claimant.</p>

<p>• [This was a motion for an injunction by James L. Marsh and others against George Warren and Alexander L. Fairweather.]</p>

<p>Case No. 9,122.</p> <p>Pleading in Equity — Weight oe Answer — Pledge Bonds — Sale at Auction — Purchase by Pledgee — Voidable—Laches — Neglect by Attorney — índ em n it y .</p> <p>1. The answer to a bill in equity, so far as responsive, is to be taken as true, unless disproved by evidence of greater weight than the testimony of a single witness.</p> <p>2. Bonds, pledged as security for liability incurred by the pledgee, cannot be purchased by him, even though they are sold at public auction.</p> <p>3. Bonds, purchased by the pledgee at such sale, may be redeemed by the pledgor at his pleasure within a reasonable time. *</p> <p>4. Such purchase is voidable by the pledgor, and not absolutely void.</p> <p>5. The pledgor, having knowledge of all the circumstances of the sale, after the lapse of eleven years is barred in equity from avoiding the sale by his own laches.</p> <p>6. If such pledgor would avoid the effect of each lapse of time in equity, on the ground of concealed fraud, he must set forth in his bill with particularity, when and by what means the fraud was discovered.</p> <p>7. Neglect, by an attorney at law of his duty in collecting demands left with him for collection. is not a subject of equity jurisdiction, as the parties have a full and complete remedy at law.</p> <p>8. An officer has a right to require indemnity from the plaintiff before he is compelled to attach property of the debtor.</p> <p>9. An attorney at law is justified in acting according to the decision of the supreme court of a state, although it be afterwards reversed by the supreme court of the United States.</p>

<p>Case No. 9,123.</p> <p>Bankruptcy — Discharge—Property Lost Gaming — Acquired.</p> <p>Property acquired in gaming is assets, which, if the bankrupt spends in gaming, he loses his discharge.</p>

This action was instituted the 22d of August 1S50, on an alleged agreement by the defendant, to pay the plaintiff [Alexander J. Marshall] the sum of fifty thousand dollars, in six per cent bonds of the defendant, at their par value. This sum was claimed under the said agreement, as a compensation for services rendered by the plaintiff, in procuring from the legislature of Virginia, the right of way for the defendant’s through that state.

The respondent with his family, came passengers from Havre, in Prance, to this port, on board the packet ship-, owned by the libellants. He contracted to pay two thousand francs for the passage, one half to be paid in advance, and the other half in New York on the arrival of the ship here. The advance was duly paid, and for the balance the respondent drew a bill of exchange on himself, payable at sight at Delmonico & Oo.’s in New York.

<p>Case No. 9,136.</p> <p>Seamen’s Wages — Master—Return to Port-Error in Judgment — Board op Wipe and Child.</p> <p>1. Where the master was compelled, by want of provisions, to return to his home port, and the insufficient supply was caused by an error of judgment, committed in the supposed interest of his owners, held, that under the circumstances, the error was not of so gross a character as to make the master personally responsible for its consequences.</p> <p>2. Where the master claimed the gratuitous privilege of taking with him on the voyage his wife and child, held, that he must show a distinct understanding and definite agreement with the owners on the subject.</p>

On a case stated, the plaintiff, a citizen of the state of New-York, and residing in the city of New-York, by his agent, on the 7th of May, 1806, caused insurance to made on the cargo, freight, and brig Rolla, all owned by him; S. Clapp, master, at and from St. Jago de Cuba. The policy on the freight, and part of the cargo, valued; on the vessel, and residue of cargo, open.

<p>Case No. 9.128b.</p> <p>Collision — Secured to Dock — Blocking Passage — Tug and Tow — Damage by Tow —Liability.</p> <p>[1. A vessel secured at a dock is entitled to keep that position against the voluntary approach of any other. Though its position blocks the passage of some other vessel, yet the law does not compel it to move; and if the moving vessel, in attempting to pass, should cause a collision, it will be liable to damages.]</p> <p>[2. A tug, towing a steamer, collides with a vessel secured to a dock. It is claimed in de-fence that the tug was acting under the direct and immediate orders of the pilot of the steamer, and that the responsibility, if any, should rest with the steamer. UcU. that these facts constituted no defence in an action against the tug.]</p>

<p>Case No. 9,128a.</p> <p>Pleading at Law — Misnomer—Idem Sonans.</p> <p>“Jeffery” and “Jeffries” are not idem sonans.</p>

[These were two appeals by Moses Marshall from a decision of the commissioner of patents, awarding priority, upon interferences to John Mee in respect to an invention of improvements in knitting looms.]

[This was a suit by William H. Marshall against Gustavus Pierrez for nonperformance of contract.] A contract was made in August, 1870, between parties engaged in the business of getting up pleasure excursions for passengers, and the owner of the steamboat Minnie R. Childs, for two excursions from New York to the light-ship beyond Sandy Hook and back, for $125 for each trip, the charterers to have all the receipts from passengers, and the owner to pay the running expenses of…

This was an action [by Edward Marshall and Thomas Tileston,] against [Heman J. ltedfield] the collector of the port of New York, to recover back duties charged to have been illegally exacted [under color of the law, by the collector).2 Nine casks of hardware had been shipped to the plaintiffs, as appeared from the invoice and manifest, and a warehouse entry was made of the same, and a bond given in the usual way, by the consignees, with surety.

This was an action on four policies; one on the vessel, another on the freight, a third on the cargo, and a fourth on an additional cargo, effected in October, 1806. The additional cargo consisted principally of goods brought by a Spaniard from Cadiz to New-York, and entered for exportation for the benefit of drawback. These goods were after-wards sold by the Spaniard to one Cazenove, recently, before they were reshipped, and sold by Cazenove to the plaintiff.

This was a motion for a new trial, on the ground that new and material evidence had been discovered since the trial. Vide [Case No. 9,133], The new evidence consisted of documents from the custom-house at New York, tending to invalidate some of the testimony given on the trial, and to show that the sale by the Spaniard was not bona fide, but a mere cover, and the goods, in fact, not neutral property.

[These were actions on four policies of insurance at the first hearing of which a verdict was rendered in the plaintiff’s favor, Case No. 9,133.] This cause, in which a new trial was granted at the last term [Case No. 9,134], now came on. The evidence was the same, with some additional circumstances, strongly pressed upon the jury by the defendants’ counsel, to show that the additional cargo was Spanish property, covered by the plaintiff.

The defendant, George F. Williams, while acting as the agent of the plaintiffs in selling oil on commission for them sold on fifteen days credit, on the 18th of January, 1867, ninety-two barrels to McCormick and Cal-lender', who soon afterwards failed, whereupon plaintiffs brought this action to recover the value of the oil.

<p>Case lío. 9,137.</p> <p>Monet — Legal Tenoer — Papek Monet — Depreciation — R e n t — Reduction.</p> <p>Upon a deed made in 1779, reserving an annual rent of £26 current money in Virginia, forever, the rents accruing during the existence of paper money are to be reduced according to the scale of depreciation.</p>

Trespass quare clausum fregit for mesne profits. The defendant pleaded the statute of limitations. Replication, infancy of some, and coverture of others of the plaintiffs; but Marsteller and some of the plaintiffs were under no disability. As to them, Mr. Taylor, for defendant, contended that the replication is no answer to the plea. All the plaintiffs sue in their own rights, and as joint tenants, or tenants in common.

<p>Case No. 9,141.</p> <p>Deposition — Reducing to Writing.</p> <p>A deposition taken under the 30th section of the judiciary act of 1789 [1 Stat. 88] must be reduced to writing by the magistrate or witness, and no other person is competent to perform that duty.</p>

[Charles J.] Marter was duly adjudicated a bankrupt on the 3d day of May, and a writ of injunction was issued, prohibiting him and one Moses Beckel from encumbering, disposing of, or in any manner interfering with the property of said bankrupt or any part thereof.

<p>Case No. 9,142.</p> <p>Bankruptcy — Merchant on Tradesman — Speculating ut Stocks — Specification.</p> <p>1. A man who speculates in stocks, buying and selling them through brokers, is not a merchant or tradesman, within the meaning of the bankruptcy act [of 1867 (14 Stat. 517)], and may receive a discharge, though he has kept no books of account.</p> <p>[Cited in Re Woodward, Case No. 18,001;</p> <p>Re Moss, Id. 9,877.]</p> <p>[Cited in Ex parte Conant, 77 Me. 277.]</p> <p>2. A specification of opposition to the discharge of a bankrupt, alleging that the bankrupt has destroyed, mutilated and falsified his documents and papers showing his business and financial transactions, but not averring that the acts were done with intent to defraud his creditors, is de-f6CtÍV6.</p> <p>[Cited in Re Condict, Case No. 3,094.]</p>

The libellant shipped as seaman on board the ship Martha, at New Orleans, for a voyage to Laguyra, thence to one or more ports in Europe, and back to a port of discharge in the United States.

This was an action by the consignee of a quantity of sheet iron (310 bundles) laden on board the ship Martha, at Liverpool, for New York, to recover damages for injury to the iron, by wetting. The libellant offered the bill of lading, which contained the usual conditions and stipulations. He then proved that the iron, when unladen from the vessel, was very wet, and water dripped off it. He further proved the damage caused by the injury amounted to about 30 per cent.

<p>Case No. 9,146.</p> <p>Admikalty — Jurisdiction — Long Island Sound-—Touts—Illegal Seizure — Damages —Mitigation.</p> <p>1. This court has jurisdiction on the instance side over maritime torts committed within the ebb and flow of tide.</p> <p>2. Long Island Sound is not only, in common law acceptation, an arm of the sea; it is a strait and parcel of the high seas; it is not within the territorial limits of any particular state.</p> <p>3. The inhabitants of Oyster Bay township have the exclusive right to the oyster fishing within that bay. And the town has authority to enact and enforce by-laws in support and protection of that right. But process issued by a justice of the peace, under the authority of those-laws, cannot be executed on the Sound.</p> <p>4. The seizure and detention of the libellant’s vessel, for the purpose of executing such process on board her, was a maritime trespass and tort.</p> <p>5. An action in rem against the vessel attached, and in personam against the respondent, her master, will lie in this court for the tort.</p> <p>[Cited in The Florence, Case No. 4,880.]</p> <p>6. The libellant is entitled to recover damages in this action, in satisfaction of the injury he has sustained. But those damages should be mitgated, upon the consideration that the respondent was acting under the command of officers of the law, and without intention to do the libellant any wrong.</p>

<p>Case Mb. 9,147.</p> <p>Practice — Stipulation for Value — Bond under Section 941 of the United States Revised Statutes.</p> <p>1. A stipulation for value can be substituted for property in custody, at any time, by order of court.</p> <p>2. At any time before default, property in custody may be bonded in pursuance of section 941 of the Revised Statutes of the United States, without any other condition than is prescribed in that section:</p> <p>3. But whether it can be so bonded as a matter of right, after a default, quere.</p>

This case came up on an agreed statement of facts, about which there was no dispute, and the principal point .argued was the validity of the law of the United States of 1850 (section 1). It was to obtain a decision on this point, on which there were conflicting opinions, that the suit was brought. The court thought itself obliged to decide it on a narrower ground.

This was a case in bankruptcy, adjourned into the circuit court from the district court of Massachusetts, and arose on a petition from James Martin, Jacob M. Thomas, John Thomas, and Samuel E. Stokes, merchants and partners, under the firm of Thomas and Martin; and William Stevens and William C. Claghorn, merchants and partners, under the firm of Stevens and Claghorn, of Philadelphia.

This was a writ of habeas corpus directed to the marshal of the Southern district of New York, commanding him to bring the body of Robert M. Martin before the court.

<p>In bankruptcy.</p>

<p>Case No. 9,154.</p> <p>Slavery — Fugitive Slave Act — Arrest — Examination-Trial by Jury — Matters op Fact.</p> <p>1. The act of congress empowering persons claiming the services of a fugitive slave, to seize or arrest him and take him before a magistrate, &c., makes no provision for the issuing of any process for the purpose of authorizing such arrest; and it has never been the practice, under that law, to issue any such process.</p> <p>2. When the alleged fugitive is brought before the magistrate, the latter acquires jurisdiction of the case, and authority to proceed with the inquiry, whether the person so seized and brought before him doth, under the laws of the state from which he fled, owe service or labor to the person claiming him.</p> <p>3. While such examination is pending, the party is in the custody of the law, and the magistrate has authority to imprison him for safe keeping. And during such examination, process issuing out of this court to an United States officer to take the alleged fugitive from the custody of the state officer, would be illegal.</p> <p>4. The writ de homine repiegiando, though nearly obsolete, is a common law proceeding, applicable to a trial of the question of slavery.</p> <p>5. The act of congress relative to the reclamation of fugitive slaves, is constitutional and valid.</p> <p>6. The object of the inquiry before the magistrate is only for the purpose of sanctioning the seizure or arrest and authorizing the removal of the fugitive to the state from which he fled, and does not contemplate a trial on the merits.</p> <p>7. The right of trial by jury, secured by the-7th article of the amendments of the constitution. is the trial according to the course of the common law, and is confined to matters of fact only. And the inquiry before the magistrate under this act of congress, so far as the question of slavery is involved, is a question of law, and not a question of fact.</p> <p>The subject of the reclamation of fugitive slaves was very fully discussed by Chief Justice Shaw in Sim's Case, 7 Cush. 2S5. And see, also, Dixon v. Allender, IS Wend. 678.</p>

This was an action in personam, for seaman’s wages. The defence was, that the li-bellant [Levi Martin] was not a seaman but a boatman, that the matter claimed was not within the jurisdiction of the court, and that the demand bad been satisfied.

Case agreed. On the 11th of December, 1820, the plaintiff owned and possessed sundry promissory notes called bank notes, drawn and signed in due form by and on behalf of the defendants, whereby they promised to pay to different persons, or bearer, on demand, the several sums mentioned in the said notes, which were of the description following: one note, letter A, No. 5S3. for $100, payable to Benjamin Morgan or bearer; fifteen notes for $20 each, payable in like manner, and…

[At law. Action toy Martin and Coe against Edward Curtis to recover back duties illegally exacted.) This action is brought to recover back the duties paid on several importations from Dundee during the year 1841, of gunny cloth, which were paid under protest, amounting to $4,500, and which were levied by the defendant upon the article imported as cotton bagging, gunny cloth being prior to the tariff of July 14, 1832, free of duty.

<p>Appeal from the Crawford circuit court</p> <p>[Action by William Martin against Josiah Clark.]</p>

<p>[Action by Francis D. Martin and others against L. Criscuola.]</p>

Insurance made, on the 9th of November 1805, on one-third of the schooner Friendship, at and from Kingston, in Jamaica, to the-island of Aruba, and at and from thence, back to Kingston, with liberty to touch at Rio de la Hache.

[John M.] Martin, a citizen of the state of New-York, commenced, by declaration, an action of assumpsit against [Cornelius] Ka-nouse, a citizen of the state of New-Jersey, in the court of common pleas for the city and county of New-York. Kanouse appeared in the action, and applied to the court for an order removing the action into this court, under the provisions of the 12th section of the act of congress of September 24th, 1789, known as the “Judiciary Act.” 1 Stat. 79.

This was a bill in equity filed originally in the district court by Martin, as assignee in bankruptcy of Edward K. Woodward, to recover certain property from the defendants. Prior to February, 1861, Woodward had been a merchant m St. Louis, doing business in his own name and in the usual way. In the fall of 1860, however, he became much embarrassed, and, in fact, insolvent.

<p>Case No. 9,163.</p> <p>Notes — Assignment—Consideration—Bona Pide Holder.</p> <p>1. A note in the hands of an assignee is prima facie evidence of the amount of the consideration paid by the assignee.</p> <p>2. But the assignor, when sued, may prove what was paid.</p> <p>3. This evidence can not be set up by the maker of the note, in the hands of a bona fide holder.</p> <p>4. If the payee of the note paid no consideration, and the assignee paid none, the maker may show a want of consideration.</p>

The Somerville Water Power Company, incorporated under the laws of New Jersey, and doing business in that state, issued; in 1848, to different persons, a number of negotiable bonds, payable in 1853, and amounting in all to $50,000; and to secure their payment, executed (as under its charter it had power to do) a mortgage of all its real estate, property and franchises to trustees for the benefit of the bondholders; one of the conditions of the bonds being, “that if default…

Covenant upon an agreement under seal, whereby the defendant, in consideration of a Virginia treasury land warrant for twenty thousand acres of land, which he acknowledges to have received of the plaintiff, and of a sum of money agreed by plaintiff to be paid on the performance of the work, stipulated by the defendant; agrees to enter the said warrant on vacant and unappropriated land in the state of Virginia, of a particular description, and to have the same surveyed and…

<p>Case No. 9,167.</p> <p>Bankruptcy — Fraudulent Preference — Burden of Proof.</p> <p>1. The inability to pay debts in the ordinary course of business as merchants in trade usually pay them, constitutes insolvency within the meaning of the bankrupt act [of 1867; 14 Stat. 517].</p> <p>2. Where a party cannot pay his debts in the ordinary course of business and knows that he cannot, he will be held to have had knowledge of his insolvency.</p> <p>3._The necessary effect of a conveyance to creditors in satisfaction either in whole or in part of a pre-existing debt, by one who knows that he is insolvent, is a preference in fraud of the bankrupt act, and he must be held to have intended this as a necessary result of his action.</p> <p>[Cited in Alderdire v. State Bank of Virginia, Case No. 154; Re Jacobs, Id. 7,159.]</p> <p>4. Ignorance of the law cannot avail creditors who are possessed of facts that show the insolvency of the debtor, and a preference received under such circumstances is fraudulent and void.</p> <p>5. Where a transaction that contemplates the securing of a debt is out of the ordinary course of business, the bankrupt-act declares it to be prima facie fraudulent, and the onus of showing that it is not so is cast upon the defendant.</p> <p>[See Babbitt v. Walbrun, Case No. 694.]</p> <p>[Cited in Washburn v. Huntington, 78 Cal. 576, 21 Pac. 306.]</p> <p>[NOTE. From the decree entered in thiB case an appeal was taken by respondents to the circuit court. The decree was affirmed. Case unreported. The respondents then appealed to the supreme court, where the decree was again affirmed. 13 Wall. (80 U. S.) 40.]</p>

<p>Case No. 9,168.</p> <p>Mexican Land Grant — Validity—United States —Third Parties.</p> <p>This claim entitled to confirmation as against the United States, but without prejudice to third parties.</p> <p>[Cited in Meader v. Norton, 11 Wall. (78 U. S.) 457.]</p> <p>MARTIN (UNITED STATES v.). See Cases Nos. 15,728-15,732.</p>

This was a libel in personam filed by Mul-ford M. Martin against Lewis M. Walker, to recover for supplies and materials furnished to vessels of the respondent. The cause now came before the court on a motion to set aside the arrest of the respondent, and discharge the recognizance of bail given by him.

The libel was for $100 apiece as wages and compensation for having been kept on short allowance.

Assumpsit by indorsee against indorser on a promissory note given by Lewis Rousma-niere to the defendant [Andrew Winslow], on 4th September, 1819, for $1,129.76, payable on demand, at the New-England Commercial Bank in Newport. On the trial upon the general issue, it was admitted by the plaintiff [William Martin] that the note never was lodged at the Commercial Bank, and that no demand was ever made for payment upon Mr. Rousmaniere personally in his life time.

The complainants in [Julian] Martinetti and others against [Thomas] Maguire and othei-s brought suit to enjoin the defendants therein from performing or exhibiting a play or spectacle, called by them the “Black Crook,” alleging that the same was a mere colorable imitation of a play known as the “Black Rook,” which is the property of the complainants.

[Suit in admiralty by Ramon Martinez and others, owners of the schooner Anita, against the steamboat Anglo Norman and the bark Jane E. Williams for the recovery of damages caused by collision.]

<p>Case No. 9,175.</p> <p>Practice in Admiralty — Libel in Personam— Tort — Damages.</p> <p>Damages will be assessed in this court, upon a libel in personam, for commission of trespass or tort upon the high seas.</p> <p>[Cited in Plummer v. Webb, Case No. 11.233; Camden & A. R. Transp. Co. v. The Lotty, Id. 2.337a; New Jersey Steam Nar. Co. v. Merchants’ Bank of Boston, 0 How. (47 U. S.) 432.]</p> <p>[NOTE. Ballard, who had been surrendered into custody by his surety, made application to be allowed to take the oath for the relief of persons imprisoned for debt. The application was refused. Case No. 9,175. There was an appeal in the case of Jansen v. Vrow Christina Magdalena (Case No. 7.216) to the circuit court. It was there affirmed. Case unreported. It was then appealed to the supreme court, when the decree was again affirmed. 3 Dali. (3 U. S.) 133.] _</p>

The application now before the court is made on the part of Captain Ballard, who desires that he may be admitted to take the oath, mentioned in the act of congress, for the relief of persons imprisoned for debt. It has been objected that this act relates solely to persons confined for debt on execution; and that Ballard does not come within that description.

<p>[Appeal from the district court of the United States for the Southern district of New York.]</p>

[In review of the action of the district court for the Eastern district of Missouri.] A petition was filed, in February, 1871, in the district court for the Eastern district of Missouri, by creditors, under the 39th section of the bankrupt act [of 1867 (14 Stat. 536)] for .an adjudication of bankruptcy against William L. Marvin.

<p>Case No. 9,179.</p> <p>Bankruptcy — Illegal Preference — Mortgage to Secure Future Credits.</p> <p>F., a dealer in boots and shoes, was accustomed to buy goods of C. At a time when he was not indebted to C., he applied to C. to buy more goods on credit, and it was agreed that C. should furnish him goods from time to time, on the security of a mortgage on certain lands of F. The mortgage was made by F. to C., being, in terms, to secure any liability, not exceeding $3.000, that might be incurred by F. to C.. and being so drawn as to cover any present ns well as any future liability. C. afterwards sold goods to F. to the value of $800. who continued his business, but was. shortly afterwards, adjudged a bankrupt. The assignee in bankruptcy of F. brought this suit to set aside the mortgage: Meld, that the mortgage was valid to the extent of the goods sold by C. to F. on the faith of the mortgage.</p>

This was an action of ejectment [by Eben-ezer Marvin against Isaac Dennison and others], It appeared that one of the defendants claimed title to the lands in question, under a mortgage from the others, and that the others were in the actual occupancy of the lands; but there being no evidence that the defendant, so claiming as mortgagee, was in actual possession, it was objected that the action could not be maintained against him.

This was a case of objection to a proof of a debt. [Albert] Marwick, the bankrupt, iu May, 1837, entered into a co-partnership with one Frederick Davis, and as partners they purchased a quantity of provisions for the Georgia Lumber Company, to the amount of $800, for which they drew their bill on the company in favor of one Bradbury.

[Appeal from the district court of the United States for the district of Massachusetts.] There were two informations in this case; one against the schooner for taking on board, at Liverpool in Great Britain, certain goods of British manufacture, with intention to import the same into the United States, with the knowledge of the master, against the act 1 March 1809, c. 91, § 6 [2 Story’s Laws, 1110; 2 Stat. 529, c. 24]; another against the cargo of the schooner, being goods…

<p>Case No. 9,182.</p> <p>Prize — Blockade—Comino out op Blockaded Port — No Papers — Admissions op Master.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

<p>Appeal from the district court of the United States for the district of Rhode Island.</p> <p>In admiralty.</p>

This cause having been decided in favor of the privateer Cadet against the claim of the privateer Paul Jones the damages were assessed against the owners of the latter, under the decree of the supreme court, which is reported at large in 2 Wheat. [15 U. S.] 123. At May term, 1817, of the circuit court, process issued against the owners, who were named in the commission and ship’s papers, for the damages so assessed; but the process was returned unsatisfied.

<p>Case No. 9,186.</p> <p>Seamen's Wages — Lien—When Enforced— Waiver — Bona Pide Purchaser.</p> <p>1. No rule has ever been adopted by the maritime law, either of England or this country, prescribing the time within which mariners should proceed to enforce their lien for wages. Necessity of .some rule.</p> <p>[Cited in Cole v. The Atlantic, Case No. 2.976; Packard v. The Louisa. Id. 10,652: Pierce v. The Alberto. Id. 11,142; The Galloway C. Morris, Id. 5,204.]</p> <p>2. The lien of mariners has no analogy to common law liens, as regards the possession of the subject.</p> <p>[Cited in Edwards v. The Robert P. Stockton, Case No. 4,297.]</p> <p>3. A forbearance by seamen to libel a vessel at a port where they are discharged, before the end of the voyage, does not amount to a waiver of their lien, as against a subsequent bona fide purchaser. Difference between a bottomry lien and a lien for wages as respects delay in enforcing it.</p> <p>[Cited in Knox v. The Ninetta, Case No. 7.-912; The Bolivar. Id. 1.610; The Avon. Id. 680; Crosby v. The Lillie, 40 Fed. 368.]</p> <p>[Distinguished in The 'Rover v. Stiles, 5 Blaekf. 485.]</p> <p>4. A vessel sailed with a cargo on a voyage from New-York to New-Orleans and back. She remained at New-Orleans more than a year after her arrival, waiting for freight. Not obtaining any, the master discharged the seamen, whom he persuaded to return with him in another vessel to New-York, to get their wages. Afterwards, while the vessel was at New-Orleans, she was sold, and went a voyage to Liverpool, and thence to New-York. Held, that the seamen could libel her on her arrival at New-York, and that they were entitled to their full wages to the time of their return to that city.</p> <p>[Cited in The Utility, Case No. 16.806; Thompson v. The Oakland, Id. 13,971; Knox v. The Ninetta, Id. 7,912; Edwards v. The Robert F. Stockton, Id. 4,297; Packard v. The Louisa, Id. 10,652; The D. M. French. Id. 3,938; The Galloway C. Morris, Id. 5.204; Southard v. Brady, 36 Fed. 561.]</p> <p>[Distinguished in The Rover v. Stiles, 5 Blaekf. 485.]</p>

<p>Case No. 9,187.</p> <p>Bottomry — Essentials — Necessity or Loan— Who May Pledge — Owner—Money to Buy Cargo — Mortgage.</p> <p>1. The risk of the lender and his right to repayment only on the safe arrival of the vessel, constitute the essential difference between a bot-tomry and simple loan.</p> <p>[Cited in The William & Emmeline, Case No. 17,687; Leland v. The Medora, Id. 8,237; Greely v. Smith, id. 5,750; The Rapid Transit, 11 Fed. 325.]</p> <p>2. Marine interest is also requisito to a bottom-ry loan, but if not expressed in the bond, it will be presumed to have been included with the-principal.</p> <p>[Cited in Greely y. Smith, Case No. 5,750.]</p> <p>3. The jurisdiction of courts of admiralty over contracts depends principally upon their subject matter; and in cases of bottomry, it is not the absolute necessity of the loan that gives the jurisdiction.</p> <p>[Cited in Waterbury v. Myrick, Case No. 17,-253; The William & Emmeline, Id. 17,687; The Perseverance, Id. 11,017. Approved in The Draco, Id. 4,057. Cited in Furniss v. The Magoun, Id. 5,163; Leland v. The Medora, Id. 8.237; Waring v. Clarke, 5 How. (46 U. S.) 486; New Jersey Steam ' Nav. Co. v. Merchants’ Bank, 6 How. (47 D. S.) 421; Haller v. Fox, 51 Fed. 299.]</p> <p>4. And the owner as well as the master of a vessel may pledge her by bottomry in a foreign port</p> <p>[Approved in The Draco, Case No. 4,057.]</p> <p>5. The master of a vessel in a foreign port, acting in the character of agent, is limited in his power, and can only pledge the vessel in case of necessity; but the owner, having an absolute control over his property, may pledge her for money to purchase a cargo, and thereby create an admiralty lien.</p> <p>[Cited in The Hilarity, Case No. 6.480; -The Panama, Id. 10,703; Greely v. Smith, Id. 5.750; The Ole Oleson. 20 Fed. 387; Freights of the Kate, 63 Fed. 713, 720.]</p> <p>6. In November, 1822. the owner of a vessel in Connecticut, gave a bill of sale of her in the nature of a mortgage, but was suffered to remain in possession and act as absolute owner, and her register and all her papers remained unaltered. In July following, he gave a bottomry bond for money advanced to purchase a cargo for the vessel in the West Indies, without notice to the lender of the mortgage: Held, that upon common law principles, the claim of the lender was to be preferred to that of the mortgagee.</p> <p>[Applied in The Romp, Case No. 12,030. Cited in Iceland v. The Medora, Id. 8,237; The Hendrik Hudson, Id. 6,358; Greely v. Smith, Id. 5,750.]</p>

<p>[This was a suit in admiralty by Shelton and others against the brig Mary.]</p>

The libellants [Shelton and others] shipped a quantity of specie, consisting of five-franc pieces, on board the Mary, from Boston to Porto Cabello, for the purpose of purchasing a return cargo. On the outward passage, the Mary met with a disaster; her masts were cut away, and she put into Antigua for repairs.

This was a libel promoted by David Downing and others, of the crew of the schooner Mary, in a cause of subtraction of wages. •It appeared that the vessel was employed in bringing paving-stones from Scituate and Marshfield beaches, to Boston, and the libel-lants were employed in loading the vessel with the stones, at the various places where they were obtained, navigating the vessel to Boston, and unloading her.

This was a suit for subtraction of wages. The libel sets forth a contract for a voyage from Portland to Goree in Africa and the Cape de Yerd Islands, and back to her port of discharge in the United States, for wages at the rate of eighteen dollars a month, alleges the faithful performance of the contract. and claims a balance due of $48.08.

A libel in rem was filed by James States, William Gray, Edward Davis, Thomas Holden, and Peter Johnson, crew of the schooner Mary Ann, against that vessel, to recover Avages. There was also filed a libel in per-sonam, by Peter Johnson alone, against William P. Martin, the owner of the schooner, to recover the same wages as were claimed by the libellants in the other suit.

Petition for freedom. prayed the court to instruct the jury, that if the petitioner was brought here from Virginia by her lawful owner, and afterward ran away, and her owner sold her running, supposing her to be then in Virginia; the running away in fraud of the law will prevent the slave from the benefit of the provision in her favor.

This was a case of seizure made by the collector of Saco, for an alleged violation of the act of congress for the registering and recording of ships or vessels. The owner interposed no claim, but a claim was filed by Messrs. William J. and Charles E. Quincey, with a stipulation for costs, setting forth a claim against the vessel as attaching creditors, they having attached her, before the seizure, for a debt due to them from Dun-levie, the owner. The right of the Messrs.

This was a libel in rem filed in the district court by Townsend Underhill against the schooner Mary Ann Guest, for the non-delivery of goods shipped by that vessel from Philadelphia to New-York. The goods had been purchased cn credit and shipped by the vendor, and a bill of lading in the ordinary form was given by the master for the delivery of the same to the consignee or bis order.

This was an action in rem for the recovery of $1.050, upon a bill of lading assigned to the libellant,’ Townsend N. Underhill.

<p>Case No. 9,199.</p> <p>Maritime Liens — Supplies — Home Port — Foreign Port — Bill against Vessel and Owners.</p> <p>1. The maritime law does not give a lien upon a vessel for supplies furnished at the home port</p> <p>2. The residence of the owner is the home port of a vessel, although she may be enrolled elsewhere; the enrollment is only prima facie proof of the owner’s residence, and therefore of the home port.</p> <p>[Cited in The Albany, Case No. 131.]</p> <p>3. Supplies furnished vessel in foreign port To whom or what credit presumed to be given.</p> <p>[Cited in The Mary Morgan, 28 Fed. 198.]</p> <p>4. When a bill for supplies is made out against the vessel by name and the owners, it is evidence that credit was given to the vessel, and that the personal responsibility of the owners was not exclusively relied upon.</p>

<p>Case No. 9,198.</p> <p>Maritime Liens — Priority—Seamen’s Wages— Supplies.</p> <p>Seamen held entitled to priority of payment out of proceeds of the sale of the ship in court, over material men who furnished supplies to the vessel during their employment.</p>

<p>Case No. 9,-200.</p> <p>Seamen’s Wages — Abandonment in Foreign Port.</p> <p>Defense by master that the seaman was detained on shore by the municipal authorities of the port: Held, unsupported by the proofs.</p>

<p>Case No. 9,201.</p> <p>Pleading in Admiralty — Amendment to Answer — Collision—Baffling Wind — Right of Wat — Items of Damage. •</p> <p>1. An answer cannot be amended after the cause has been heard, so as to contradict a material admission in it</p> <p>2. A vessel on the starboard tack, nearly close-hauled with the wind one or two points free and baffling, need not give way to a vessel on the port tack close-hauled, when the vessels are crossing.</p> <p>3. A vessel having the right of way must .keep a proper lookout and use proper seamanship to avoid collision'.</p> <p>4. Freight money lost by the master of a sinking vessel when hurrying from the wreck and sails used for covering the deck-load are proper items of damage in cases of collision.</p>

The United States seized the brig Mary Celeste. July 9, 1872, and at once filed a libel against her as forfeited; alleging that in December, 1868, Richard W. Haines, the then owner of said brig, knowingly and fraudulently obtained a certificate of registry for said brig, to the benefit of which she was not entitled.

<p>Case No. 9,203.</p> <p>Prize — Blockade—Enemy Property— Neutral — Lotalty op Owner op Property Used in Illegal Traffic — Lien on Captured Property.</p> <p>1. Objections taken, in the claims, to the sufficiency of the libel, in point of pleading, overruled.</p> <p>2. The hostilities subsisting between the government and the rebels have the character and attributes of a public war, and the rules of national law applicable to wars of that description govern the rights and liabilities of persons whose property is captured, as prize of war, during such hostilities.</p> <p>3. A lawful blockade had been imposed by the government, and put in force, at the time of the arrest of the vessel in this suit.</p> <p>4. The property of persons domiciled or residing within the rebel states is a proper subject of capture on the sea as enemy property.</p> <p>5. The proclamation of the blockade is, of itself. conclusive evidence that a state of war existed which demanded and authorized a recourse to a blockade, under the circumstances existing in the case.</p> <p>6. Property devoted to illegal traffic becomes thus stamped as enemy property, and the quality of hostility does not depend exclusively upon the personal sentiments or lawful allegiance of the party, but arises often from its actual or business residence; so that the produce of the soil of the hostile country, engaged in the commerce of the hostile power, is legitimate prize without regard to the domicile of the owner.</p> <p>7. A neutral friend to both belligerents cannot transport over the sea the effects of one to the use of the other, though also his friend. He is not allowed to aid and benefit the commerce of one belligerent to the prejudice of the other.</p> <p>8. By investing his means, and participating in the trade and mercantile concerns of a belligerent nation, a neutral has, in effect, affixed to him the national character of the places at which he carries on his commerce.</p> <p>9. The produce of the enemy’s soil and country, owned by a neutral, while it remains in the enemy’s country, particularly if obtained therein by a resident agent of the neutral merchant, has imparted to it the stamp of enemy property, and the owner is, pro hae vice, an enemy.</p> <p>10. Vessel and cargo condemned for an attempt to violate the blockade and as enemy property.</p> <p>11. The interest or expectancy of creditors in enemy property arrested as prize, even though amounting to a lien upon it, does not exempt it from capture as prize.</p> <p>An appeal was taken to the supreme court from this decree, as to a part of the cargo, but not as to the vessel. Affirmed by default February 27, 1806. [Case unreported.]</p>

Libel for damage to the fishing-schooner Alice P. Higgins, by collision with the fishing-schooner Mary Doane, on the afternoon of June 17, 1874, on Nantucket Shoals. Both vessels were lying-to in a fog, with their helms hard down, and relying chiefly on their foresails; and the witnesses for each party testified that their vessel was making from two knots to two and a half knots. The libellants’ vessel was on the starboard tack, and the Mary Doane on the port tack.

<p>Case No. 9,204.</p> <p>Salvage — Compensation— Amount.</p> <p>[Cited in Baker v. The Slobodna, 35 Fed. 542.)</p>

<p>Case No. 9,806.</p> <p>Seamen — Wages—Conditional Sale.</p> <p>Where the owner of a vessel agreed to sell her to two purchasers for a certain sum, to be paid for in monthly installments, and gave immediate possession to the vendees; and it was further agreed that in case of default in the payments, the vessel should be returned to the owner, and the contract of sale rescinded; and the proposed purchasers were in that case to pay $125 per month for her use, while in their possession, deducting all sums paid on account of the purchase money, and default was made in the payment stipulated; but before the owner resumed possession under the contract, the libel-lant sold out his interest to his partner and was immediately employed by the latter to serve as pilot and mate: held, that the libellant had no lien on the vessel in the hands of a subsequent vendee of the owner.</p>

<p>Appeal from the district court of the United States for the Northern' district of New York.]</p> <p>[This was a libel for repairs by Robert Mills and others against the Mary E. Perew. Prom the decree of the district court in favor .of the libellants the claimant appeals.]</p>

This action was brought by John Arnold, the owner of the schooner Mary E. Taber, to enforce an alleged lien upon a cargo of wood transported in that vessel from Holmes’ Landing to the port of New York under a charter made with Bonnel, the claimant of the cargo.

[A collision occurred on September 20, 1868, in the East river, N.Y., between Blackwell’s Island and Long Island between the schooner Mary Eveline and the sloop Ethan Allen. The schooner was damaged and the sloop sunk and so injured as to be unfit to repair.

[This was a libel against the derelict ship Mary Ford to recover salvage.

<p>Case No. 9,212.</p> <p>Collision — Damages — Full Value of Vessel— Interest Allowed — Rate pek Cent.</p> <p>1. Where, in a suit in admiralty, for a loss by a collision, items of damage áre allowed as for a total loss, interest is to be allowed at 6 per cent., from the date of the loss, and not at 7 per cent.</p> <p>2. Where an allowance is made for the full value of a vessel sunk and lost by a collision, as for a total loss, the expense of raising the vessel. to ascertain the extent of the loss, is a proper charge.</p> <p>[Cited in The Havilah, 1 C. C. A. 519, 50 Fed. 334.]</p> <p>[See The America, Case No. 285.]</p> <p>[For prior proceedings, see note to Case No. 9,211.]</p>

[This was a libel by John H. Geiger and others against the cargo and materials of the ship Mary Hale for salvage services.]

<p>.In admiralty.</p>

This cause was noticed for hearing and proofs. The claimants contended that, no replication having been filed to their sworn claim and answer, the libellants must be deemed to have admitted the facts set up by the answer, and that the claimants were not obliged to support it by proofs. The libel-lants contended that the issue was complete on the filing of the answer, unless, under peculiar circumstances, a special replication was demanded.

This case came before the court on separate exceptions taken by each of the claimants of the two vessels sued, to the report of a commissioner.

[This was a libel by Packer Geiger and others against the cargo and materials of the ship Maryland for salvage services.]

By the statute of Maryland, similar to Lord Campbell’s act, an action is given in the name of the state, for the use of the person entitled to damages, whenever death shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not occurred, have entitled the person injured to damages; such action to be for the benefit of the wife, husband, parent or child of the person whose death shall have been so caused.

[This was a suit by the state of Maryland, on the relation of Partridge, against Todd. The case is now before the court on demurrer.)

[Appeal from the district court of the United States for the Eastern district of Wisconsin.] Libel for forfeiture, under the act of March 1st, 1817, against the barque for the reason that there was imported in her into this district, in 1868 and 1869, from Canada, a quantity of goods, wares, and merchandise, the product of Canada, the barque being foreign-built, and at the time of importation, wholly owned by citizens of the United States.

<p>Case No. 9,221.</p> <p>Pkize — Enemy Property — Lieu por Outlays in Fitting — Relief prom Forpeiture.</p> <p>1. Part of the vessel condemned, under the 6th section of the act of July 13, 1861 (12 Stat. 257), as belonging to a citizen of a state in insurrection. Part of vessel acquitted.</p> <p>2. The claim of the owner of the acquitted part to a lien upon the condemned part for outlays in fitting the vessel was disallowed, and the claimant was referred to the power of the secretary of the treasury, under the 8th section of the act. to remit the ferfeiture.</p>

<p>Case No. 9,223.</p> <p>Collision — Both in Fault — Claim foe Salvage —Towa g e— Costs.</p> <p>1. In a collision cause in which a steamer and a sailing-vessel were both found to be in fault, and the steamer, after the collision, had towed the schooner into port, — Held, an allowance might be made for towage as part of the damage suffered by the steamer, but not for salvage.</p> <p>[Cited in Leonard v. Whitwill, 19 Fed. 549.]</p> <p>2. When, in such a case, both vessels were injured, and there -was no ground for discriminating between them, the costs as well as damages were divided.</p> <p>[Quoted in Vanderbilt v. Reynolds, Case No. 16,839. Cited in Memphis & St. L. Packet Co. v. H. C. Taeger Transp. Co., 10 Fed. 396.1</p> <p>3. It seems, that if one party suffers all the damage, and both are in fault, the libellant recovering half damages, should usually recover full costs.</p> <p>[Cited in Vanderbilt v. Reynolds, Case No. 16,839. Disapproved in The Pennsylvania, 15 Fed. 815. Cited in The Hercules, 20 Fed. 205.]</p>

This was a libel promoted by William Mar-der and four others of the crew of the brig Mary Paulina, for extra wages, under the statute of July 20th, 1790 (section 9), which provides that “every ship or vessel, belonging as aforesaid, bound on a voyage across the Atlantic Ocean, shall, at the time of leaving the last port from whence she sails, have on board, well secured under deck, at least sixty gallons of water, one hundred pounds of salted flesh meat, and one hundred…

<p>Case No. 9,225.</p> <p>Collision on Lono Island Sound — Stbameks Meeting — Confusion of Signals — Lookout.</p> <p>1. The propeller D., bound to New York, was on the north side of the channel east of Execution Light in Long Island Sound, heading southwest by west, when she discovered, about a point on her port bow. both the green and the red lights of the propeller M. S., which was also on the north side of the channel, heading northeast half north. The true course of the D., after passing the buoy at Execution Light, would have been southwest half south, but, as soon as she had passed the buoy, she ported her helm and blew one blast of her whistle. The answer to this was two blasts of the whistle from the M. S., to which the D. replied with a single blast, and immediately stopped and reversed her engine. The M. S. saw the lights of the D. a point or a point and a half on her starboard bow, she blew two whistles when about a mile off, and then, hearing the single whistle from the D., she again blew two whistles and starboarded, and, on hearing the second single whistle from the D., stopped and reversed her engine. Her first two whistles were not heard on board the D. The vessels came in collision, the stem of the D. striking the M. S. on her starboard bow: B'eld. That the vessels were meeting end on or nearly so, and were both bound to port their helms, in accordance with the 13th article of the Steering and Sailing Rules, and that the M. S. was in fault in starboarding.</p> <p>[Cited in The Free State, Case No. 5,090.]</p> <p>2. If there is a confusion of signals between two approaching steamers, each vessel is bound to stop, as soon as it perceives the confusion, in accordance with the 16th article.</p> <p>[Cited in The Manitoba, Case No. 9,029.]</p> <p>3. The M. S. therefore, was in fault in not stopping and reversing her engine when she heard the first single whistle from the D.. which she understood to be in answer to her first two whistles.</p> <p>4. As each vessel saw the other at a sufficient distance, there was no question of lookout.</p> <p>5. The D. was not in fault</p>

Libel by the owners and crew of the schooner Hattie N. Reed, of Swampscott, and by the owners of a large and valuable seine used in connection with said schooner in the mackerel fishery, against the schooner Mary Steele, of Wellfleet.

<p>Case No. 9,237.</p> <p>Prize — Violation op Blockade.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

<p>Case No. 9,228.</p> <p>Prize —Violation of Blockade — Goods Forming Cargo — Last Employment — Agents.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

[Appeal from the district court of the United States for the district of Maryland.] The libel in this cause was filed by Ayres and others against the owners of the Mary Washington, to recover damages for their failure to deliver in good order merchandise entrusted to them for transportation.

This was a libel for salvage, filed in the district court of the United States for Maryland district, by [William Mason and others] the master, officers, crew, owner, and freighters of the British merchant ship the Firm, against the French ship Le Blaireau.

This was a bill for injunction against stopping the complainants’ lumber while it was floating down the Susquehanna; the case being thus; A statute of Pennsylvania — Act March 29, 1849 [Laws 1849, p. 245] — made certain persons a corporation, under the name of the West Branch Boom Company, and authorized them to erect at a certain point on the Susquehanna, (a public highway of Pennsylvania,) such boom as might “be necessary for stopping and securing” lumber floating upon…

[This was a suit by William P. Mason against Otis Clapp for the recovery of tax claimed to have been paid after the repeal of the succession tax act.]

<p>This was a bill in equity, in behalf of Horatio Mason, David Daniels and Amos C. Iceland, against James Crosby and Deodat Barstow. It was filed August 20th, 1841, and alleged, that on the 24th of August, 1835. the respondents were owners of about six thousand acres of land, called the “Munroe Gore,” in- the county of Washington and state of Maine. That about the 1st day of said August, they authorized Joseph Porter and William F. Boynton to give to one Nathaniel Fifield a bond or contract in writing, conditional to convey said gore, on certain terms therein mentioned; and this contract was given to enable Fifield to negotiate a sale for the benefit of Crosby and Barstow and others. It next averred, that Fifield, acting under said contract, and with the knowledge of Crosby and Barstow’, and for their benefit, and for the purpose of selling the land at an exaggerated price, and to deceive the plaintiffs, did procure, by sinister means, Samuel Sawyer and Joseph Sawyer to execute certificates, dated April 20th, 1835, at Stephens, saying that the average quantity of pine timber then standing on said gore, would exceed six thousand feet per acre, and the spruce four thousand five hundred to five thou.sand feet per acre, and a large part of the timber was “handy to haul,” or putin, and Samuel said he had “recently explored it,” and that it was situated on the Schoodiae waters. It further averred, that these certificates were false, and so known to be to Fifield and the respondents, or might and ought to have been so known to the latter. The bill, after several other averments, either not material or not proved, alleged that Fifield further declared the timber could be cut and floated to market twice a year from said land, whereas in truth it cannot be done without great difficulty oftener than once in two years. The bill next charged that, influenced by such false declarations and certificates, the complainants agreed with Fifield to purchase said gore at $8 per acre, and on the 24th of August, 1835, obtained a bond from the respondents to convey the same, (which was in terms at the price of $6 per acre) and gave a bond to them in return to pay for the same within eight days, one fourth in money, and the residue in three notes, one to be paid each year with interest, and all to be secured by a mortgage of the premises. That before the deed and notes were executed, and to induce the complainants to give the latter, Barstow, one of the respondents, averred, that there was more timber than the certificates stated, and that the land was worth $15 per acre, contrary to the truth, and they were thus persuaded, about the 1st of September, 1835, to complete said agreement, and pay the money and execute the notes, and take the deed of the land, as before mentioned. That this amounted in all to about $48,000, of which near $10,000 was then paid, and in the whole $22,000 has been paid in money, and the rest, viz., $26,000, or thereabouts, in notes to the respondents and others their agents and creditors. Fifield was averred to have received of this in money and notes about $12,000, or at the rate of about $2 per acre. The bill concluded with a prayer to have the money repaid, and the notes to be delivered up to be cancelled, and to pay all sums expended on the premises.</p> <p>Among other averments in the bill was one, that Fifield was dead, so as not to be liable for prosecution; and in a supplemental bill, which the plaintiffs had leave to file and did file, October, 1845, it was further alleged, that Fifield, beside procuring and using false certificates by others, did himself make false representations as to the quantity of timber on said land, representing it to be twelve thousand feet of merchantable pine on one occasion, and eight thousand on another; that relying on Fifield’s representations, they were induced to agree to look at the land, with a view of purchasing it, and started for that purpose, but by false statements of Fi-field, were led to return without examining the premises, and to purchase the same on the terms before detailed; and in reliance on the falsehoods stated by. him and by others through his procurement, they obtained the bond for the land, arranging with Fifield to pay $6 per acre to Crosby and Barstow, and the other $2 to Fifield, as his share or commissions in the purchase money for his agen-r cy; that Crosby and Barstow ratified all the doings of Fifield, and while the papers were preparing to complete the purchase, Bar-stow, in order to induce the plaintiffs to take the deed, averred that more timber would be found on the land than had been stated in the certificates, and that there was no doubt of the facilities in getting it off, and that the certificates could be relied on; whereas Bar-stow knew the falsehood of all this, and meant thereby to deceive the complainants. It was further averred, that Edward Mun-roe, in 1830, purchased this gore of land of the state of Maine for $1,500, or about twenty-five cents per acre; and then sold a permit to one Todd, to cut the ümber therefrom, for the sum of $1,500; and it was cut accordingly before 1835, not leaving thereon over five hundred thousand feet of both pine and spruce; and that all this was known or ought to have been known to the respondents.</p> <p>The answer of Crosby alleged, that he had given no authority to Boynton to employ Fi-field, nor had himself employed Fifield to sell the Munroe Gore; that he had no knowledge and gave no assent to Fifield’s statements or doings, nor to the obtainment or use. of the certificates of the Sawyers. That in the spring of the year-1835 he purchased one sixth of this gore of Edward Munroe, who had the equitable title; but the deed was given by the commonwealth of Massachusetts, and run to him and Barstow for the whole. That he never owned any more of the land than one sixth, and paid therefor $2.25 per acre. That before the purchase it was agreed by the parties to the same that he, Crosby, should own one sixth, Barstow and Boynton two sixths, and Stephen Smith three sixths. That before the sale to 'the plaintiffs, Smith assigned his three sixths to J. D. Wilson, Samuel Thurston, Brazier Barstow and Joseph Porter, so that when the sale took place, Crosby owned one sixth, I>. Barstow one sixth, Boynton one sixth, J. D. Wilson one eighth, Thurston & Barstow, as a firm, one eighth each, or equal to two eighths, and Joseph Porter one eighth. That the respondent Crosby took no part in the negotiation for the sale of the gore, being much engaged in other business, and saying merely that he would sell his interest to any person for $6 per acre. That about the 24th of August, 1835, he understood from D. Bar-stow, that the plaintiffs were ready to give said price per acre, having been on the land and explored it to their satisfaction, and that all those equitably interested therein were willing the land should be thus sold. That he and Barstow therefore executed a deed of the same to the plaintiffs for that price, receiving $6,275.40 in cash, and the rest of the $35,352 in notes, payable as before specified, secured, except two, by mortgage, of the date of the 1st of September, 1835, and which notes he and D. Barstow agreed in writing to account for with the other owners, when paid, in the ratio of their respective interests. That he knew nothing of any false representations by any one, and authorized none; that he received only the sum of money and notes before named, and has divided them as agreed, except that two notes are still unpaid. That on the 4th of June, 1836, he sold to D. Barstow all his remaining interest in the notes, being $3,332, for $2,741 from which he has since made a further deduction of $1,000, and took a conveyance of real estate of little value for the balance. That he has had no interest therein since. The answer further averred, that prior to the purchase by the plaintiffs, he was informed and believes that they explored the land in dispute, and were satisfied with it; that after the purchase they again visited the same, and continued to think well of their purchase; and that they have since stated the respondents to be innocent of any fault in the sale thereof. It then asked that the other parties in interest should be made parties to this bill, and subjected to pay over pH they received if the complainants prevail; and averred, that the mortgage back of the land has not been foreclosed; that the plaintiff Daniels conveyed all his interest in the land to the other plaintiffs March 6th, 1837, and the others afterwards, in 1S3S, compromised the controversy with D. Barstow, and that no fraud had at any time been practised by him in relation to this subject.</p> <p>Crosby filed an answer also to the supplemental bill, which, besides denying the material allegations, similar to those in the original bill, averred that, though Boynton was partly interested in said land, he was not authorized by the other owners to give any bond to Fi-field or others for the sale thereof, nor does he know that Boynton had or used the Sawyer certificates to aid in the sale, and professes ignorance of most that is not denied. He averred, that he traded with the plaintiffs himself in person, and under a belief that they had explored the land for themselves, and was not aware that Fifield had employed any misrepresentations to, or made any agreement with, the plaintiffs; nor did he ratify or intend to ratify any such; nor did he or D. Bar-stow make any allowance to Fifield of $2 per acre for selling the land. Nor have the plaintiffs offered to restore it, nor has he been guilty in any way of any fraud towards them.</p> <p>The original answer of D. Barstow stated, that he and Crosby jointly, in April, 1835, bargained with Munroe for the Munroe Gore, and Munroe obtained a deed thereof to them from the state of Massachusetts the 2d of May, 1835, at $2.25 per acre. The other averments were similar to those in Crosby’s answer, except that Thurston and Brazier Barstow each owned one eighth, and that the respondent gave a verbal refusal to Boynton of his interest in the land at $0 per acre, but made no contract whatever with Fifield, nor authorized any. Nor did he know of any connection of Fifield with the sale, till a few days previous he understood Fifield had gone with the plaintiffs to explore the same; and on the morning of the 24th of August, 1S35, Fifield told him that the plaintiffs had been on the land and refused to buy on certificates. The respondent then supposed that Fifield claimed to act under a belief that he, Barstow, was willing to sell his interest in the land at $0 per acre, and that Fifield was entitled to any sum over $6, which should be obtained; and the respondent was informed that Boynton and Porter had given to Fifield such a premium to sell the land, and that it had expired some days before the 2Sth of August, 1S35. That having stated his willingness to sell at this price, he was ready to do it, and that it was no higher than other lands were then selling for. That the plaintiffs applied to him that day to purchase the same at $6 per acre; said they had been on it, and the timber had not been represented too high, and, after consulting with the others in interest, he agreed to sell to them the same and did sell it, as described in Crosby’s answer. He denies any knowledge of any false representations, or certificates, or making any such representations himself, but admits that he carried the deed from Crosby and himself to Boston, to deliver it, if the money was paid and the notes executed in conformity with the bond, though the business was not finished there, but afterwards at Bangor. That Mason, in October, 1835, subsequent to the purchase, went upon the land again, and expressed himself satisfied with the purchase, and, in April, 1836, paid the notes then falling due to Munroe; and the respondent, relying on the solvency and integrity of the plaintiffs, bought out, in March, 1S3G, Boynton’s interest in the notes then unpaid, and the interest of Crosby; and that the plaintiffs signified to him no dissatisfaction with the purchase, till on the return of Mason from another examination of the land in October, 1S36. That Mason then and since has proposed to haye the respondents take back a part of the land; but did not pretend the respondents had wronged him, or that he bought except on his own knowledge, as the respondents had no personal acquaintance with the land and timber till the summer of 1837. That Barstow then examined the same, and found some good pine, an “immense quantity of spruce, a good deal of cedar,” and “a large quantity of good farming land,” and sold to Edward Holyoke, in March, 1838, one half the notes and mortgages at the rate of $3 per acre, and with reference solely to the value of the land and timber. That in July and August, 1838, Mason and Leland proposed to abandon the land to him, if all the notes were obtained and surrendered, but it was not done, as other notes existed than those over which he had control. That aftei-wards the other notes were obtained, and all placed in his hands to be thus surrendered, and he notified the plaintiffs to make out the release and receive them. But they neglected to do the same, and filed the present bill, without any further negotiations in respect to the subject That he considered the whole matter to be thus compromised, but if it is not, prays that the other persons interested in the land be made parties.</p> <p>Barstow filed also an answer to the supplemental bill, which repeats the material denials in his former answer, except admitting that Boynton may have given a bond to Fifield for the land at $6 per acre, but denies any agency conferi'ed on Fifield to sell for the ownei-s. It further denies, that Boyn-ton had the certificates of the Sawyers, to use for the defendants, or that the defendants authorized the use of them, or ^new that Fi-field had made misrepresentations, or knew that the timber had been cut from the gore by Todd, or that it was so cut to such an extent, as averred in the supplemental bill; though the respondent does not know, and never pretended to know, the exact quantity of timber on said land. That he knows nothing of Fifield’s statements to the plaintiffs, and did nothing to secure ?2 per acre to Fi-field as agent, over and above the $6 per acre to be paid the owners; and that the bargain' was made by him with the plaintiffs at Bangor, and that Fifleld was not present, except once coming in on other business, and that he knows nothing of the terms agreed on by Fifleld. That he and Crosby knew nothing personally of the land, but believed it to be heavily timbered, and nothing of its being cut off by Todd under a permit from Munroe, or of Fifield’s representations about it That Fifleld did introduce the plaintiffs to the owners, as persons who wished to purchase, but left them to conclude a bargain; and, though once present, he took no part in the negotiation, and they knew nothing of his being entitled to the excess over $6, or had made any sale for them, and which they' were adopting. That Fifleld agreed to pay his expenses to Boston, and that he would see that the purchasers should pay him, when he, Barstow, went .to deliver the deed, else the owners would not realize $6 per acre, and that Fi-field did pay him. ' That he said nothing to the' respondents or Bullard with a view to deceive, or which he did not then believe to be' true, or to induce them to go on and complete the bargain.' This respondent denied all fraud in the sale, or any mutual mistakes in regard to the timber, or any attempt to harass the plaintiffs with suits, but supposed all to have been adjusted. He corrects one mistake in his former answer, as to the first time when he heard that Boyn-ton and Porter had given a bond to Fifleld, and says it was a few days before the contract of sale with plaintiffs, August, 1835, and not after.</p> <p>The evidence in the case was voluminous, and so, much of it as is material to the facts found by the court, and legally proved and bearing on the questions of law settled, will be referred to in the opinion.</p>

<p>This was a bill in equity, brought to rescind a contract for the sale of 6,000 acres of timber land lying in the county of Washington, on the waters of the Sehoodiac, on the ground of fraud or mutual mistake. The land was originallv purchased of the commonwealth of Massachusetts, by Munroe* who took of the commonwealth a bond for a deed. He assigned his bond to one Stephen Smith. Smith reassigned the bond and the equitable title to the land to the defendants, at the price of two dollars and a quarter an acre, and they, having paid the balance due to the commonwealth, took a deed to themselves. The legal title was conveyed to the defendants, Crosby and D. Brastow, but five other persons, viz.: Boynton, Wilson, Thurs-ton, B. Brastow, and Porter were interested in the purchase, in different proportions, to the amount of two-thirds of the whole, so that these defendants owned but one-sixth each of the land, and held the other two-thirds in trust for the other purchasers. All the parties being desirous of selling, it was agreed between them to offer the land for sale at the rate of six dollars an acre, or $48,000 for the whole. Thereupon a bond was given by Boynton and Porter, two of the equitable owners, to Nathaniel Fifield, giving him a right of pre-emption of the land at that price, for a limited time. With this bond Fifield went to Massachusetts and agreed to sell the land to the plaintiffs for eight dollars an acre, the difference of two dollars being his own profit. When Smith transferred the bond of the commonwealth of Massachusetts to the defendants he delivered to Boynton two certificates, one of Samuel Sawyer and one of Joseph Sawyer, one of them stating that he had recently explored, and the other that he had worked on the land in getting off timber in 1S32, and both certifying that there was then standing on the land 6,000 feet of pine timber to the acre on an average, and from 4,500 to 5,000 feet of spruce; and also, another certificate, signed by five persons of St. Stephens, certifying to the good character of the Sawyers. It was principally on the reliance placed by the plaintiffs upon these certificates, with the strong assurances of Fifield and some of the owners of the land, that they might be entirely depended on. that the purchase was made. Mason, it is true, went from Boston for the purpose of going upon the land and exploring it himself, but by the artifices of Fifield be was prevented from going to it, or, if he actually went on any part of the land, from exploring it. Before the sale of the land by Smith to the defendants, he agreed with one Samuel Darling, Jr., to give him one quarter of the profit he would make on the sale in consideration of Darling’s assisting him in making the sale. For this purpose, Darling procured these certificates of the Sawyers, writing them himself, and they signing them. And he was one of the five persons who afterwards signed a certificate that the Sawyers were honest men, and that perfect reliance might be placed on their certificate. These certificates were proved to be grossly false, there not being one-tenth of the amount of timber on the land that was stated in them. Nearly the whole had been taken off in the years 1831-2 and 3. There was no evidence that Boynton and the other purchasers knew the manner in which the certificates had been obtained, or that they were false. Other representations were made, with regard to the expense and facilities of getting the lumber to a market, which were proved to be untrue. The plaintiffs charged in the bill that Fifield acted as the agent of the owners. The defendants denied, in their answers, the agency of Fifield and all knowledge of fraud or falsehood in the certificates; and stated that they had no personal knowledge of the land, and had purchased it on the credit of written reports exhibited to them. Part of the purchase-money was paid when the the deeds were executed, and notes were given for the residue with a mortgage of the land. The defendants have since entered on the land for the non-payment of the notes, and foreclosed the mortgage, and thus regained a complete title to the land. The bill prayed that the defendants may be required to repay the money they have received, and deliver up the outstanding notes, and be perpetually enjoined from suing them at law. These are briefly the material facts.</p>

After the decree in this case before given [Cases Nos. 9,234 and 9,235], a master was appointed, who made a report, a copy of which is annexed: “District of Maine, ss.

An injunction was granted in the case of Barnes vs. Jones and others, which was entered served on all the defendants [Thomas P. Jones, and Alexander Hunter, marshal of the District of Columbia]. The defendants did not appear to this suit nor answer the bill.

<p>[Libel by Edward R. Mason against John S. Ingraham for the recovery of pilotage.]</p>

[In equity. Heard on motion to dissolve an injunction.] In the spring of 1839 Abraham Barnes purchased 125,000 cuttings of the morus mul-ticaulis of J. F. Callan, agent of the Washington City Silk… Held: are immaterial inquiries, and cannot serve the complainant in his defences of fraud and failure of consideration. The denial of the defendant meets fully every material allegation in both bills.

This action was instituted on the 22d of October, 1850 [by David Mason and John E. Tullis], against [George P. Kane] the collector of the port of Baltimore, for the recovery of duties paid under protest The facts sufficiently appear from the following statement of facts, agreed on by the counsel in the cause, and the opinion of the court.

Action on a contract made with the administrators and not with the intestate, but the plaintiffs named themselves administrators, and did not make a profert of their letters of administration. A rule had been laid upon the defendants [Lawrason & Smoot] to plead. They prayed oyer of the letters of administration, and cited Theobald v. Long, Cartli. 453, and Adams v. Savage, 6 Mod. 134. The plaintiffs refused to give oyer.

<p>Case NTo. 9,249.</p> <p>CONTRACTS — INTERPRETATION — DEPENDENT AND Independent Stipulations — Pleading.</p> <p>[1. N. & Co., lumber dealers, entered into a •contract with M. & Co., owners of a sawmill, by which N. & Co. agreed to furnish certain quantities of logs at M. & Co.’s mills, to pay M. & ■Co. five dollars per thousand for sawing, and to transport the lumbei from M. & Co.’s dock. M. & Co. agreed to saw the logs, furnished by N. ■& Co., in sizes-and styles as directed; to handle and pile the lumber in certain ways; to furnish boom-room for the logs; and to provide certain facilities for shipping the lumber, together with ■other stipulations. Held, that N. & Co.’s promise to pay for sawing the logs was dependent on M. & Co.’s performance of the various stipulations on their part, as to the manner of doing the work, etc., and that M. & Co. could not recover for sawing, without averring, specifically, performance of all such conditions.]</p> <p>[2. Held, further, that N. & Co.’s agreement to furnish the logs was independent of all that M. & Co. were to do. except to furnish boom-room to receive the logs, and that M. & Co. might recover for a failure to deliver logs, without averring performance of any other stipulations of the contract on their part.]</p>

[This was an action at law by M. O. Mason & Co. against D. W. Peabody, collector of internal revenue at Nashville, to recover certain taxes exacted under protest.]

This was an application by Mason for an injunction against E. A. Rollins, the commissioner of internal revenue, and others, officers acting under the internal revenue laws. The bill alleged that the complainant leased a lot of land,, near Clintonville, Kane county, in this state, for the term of three years from the first day of September, 'l868, together with the alcohol works, etc., thereon.

<p>This was a libel by [John C. Mason] the owner of the canal boat J. Stackpole, to recover the damages sustained by her while lying at a bulkhead at the foot of Ninety-Third street, in the city of New York, by reason of her striking on an obstruction caused by the logs or crib-work extending out from the bulkhead, the same not having been properly constructed. It was alleged that the respondent [William O. Rhineland-er] had the control, direction and management of the bulkhead, which was a part of the estate of William Rhinelander, deceased.</p> <p>The respondent denied that he had any control, direction or management of the bulkhead, and alleged that it had been leased to, and was in the possession and control of, Thomas J. Crombie and others. He also al-' leged that the bulkhead at the foot of Ninety-Third street, between the lines of the street, did not belong to the estate, but to tlift corporation of the city of New York.</p>

[This was an action by William P. Mason ■ and others against John Sargent, collector of internal revenue, to recover taxes, alleged to have been illegally exacted.]

<p>Case No. 9,255.</p> <p>Vendor and Purchaser — Improvements—Sanction — Specific Perpormance — Delay in Payment — When Time Essential.</p> <p>1. Where possession has been taken of property purchased, and valuable improvements made, -the acquiescence of the vendor may -be presumed.</p> <p>[Cited in Story v. Black, 5 Mont. 26,1 Pac. 1.]</p> <p>2. A delay of payment for two years, under such circumstances, where the vendor sustains no damage which interest will not compensate, will not bar a bill for a specific execution of the contract.</p> <p>[Citedfin Ewins v. Gordon, 49 N. H. 461.]</p> <p>3. Where time is made an essential part of the contract, the rule is different.</p> <p>[See Case No. 9,256.]</p>

<p>Case No. 9,258.</p> <p>Damage-Excessive Speed in Narrow Channel —Costs.</p> <p>1. The M.. a large passenger steamboat, passed through the channel between Blackwell’s Island and New York City with excessive speed, being behind time. A canal-boat loaded with coal was lying then at a well-known and frequented place for discharging such vessels. The swell thrown by the M. rolled upon the canal-boat and sank her at once, the captain and his wife jumping into the river to save their lives. Thirty days afterwards the owner of the cargo of coal gave notice to the owners of the M. of a claim for damages and thereafter filed a libel to recover against the steamer: Held, That the canal-boat was properly laden and made fast, and that, though such boats as the M. pass the place daily, no other such accident was shown to have occurred and that the case was not therefore one. of inevitable accident.</p> <p>2. The M. was not in fault in going through that channel, or in going too near the canal-boat, but was in fault in running with excessive speed and the loss was due to such fault and the steamboat was liable therefor.</p> <p>[Cited in The Rhode Island, 24 Fed. 295.]</p> <p>3. Tlie court, to mark its disapprobation of the delay in giving notice of the claim to the M., refused to give costs to the libellant.</p>

The Massachusetts Brick Company was incorporated in May, 1809, for the purpose of manufacturing bricks in Somerville and Med-ford, with a right to have a capital stock not exceeding $500,000, of which $300,000 might be in real estate.

<p>Case No. 9,260.</p> <p>Seamen —Wages — Shipwreck — Remnants op Vessei. Saved — Officers and Seamen Superseded by Owner in Salvage.</p> <p>1. In case of shipwreck, seamen are entitled to wages, as such, if by their exertions remnants of the vessel to the amount of the wages are saved, although no freight be earned.</p> <p>[Cited in The Holder Borden, Case No. 6,-600; Drew v. Pope, Id. 4,080.]</p> <p>2. If, after a vessel is east on shore, the owner appears with a competent force, supersedes the officers, and takes the business of salvage out of the hands of the seamen, and neither affords them subsistence, nor desires their aid, they being willing to render it. they may recover wages in a suit in rein against the remnants of the vessel.</p> <p>NOTE. Since the decision of The Massasoit the point there adjudicated has been considered, incidentally, in several eases reported in the United States. Davis v. Leslie [Case No. 3,-639]; The John Perkins [Id. 7,300]; Bruce v. The America [Id. 2,040]. And some decisions prior in date to The Massasoit have since been reported: Cartwell v. The John Taylor [Id. 2,-482]; Reed v. Hussey [Id. 11,040]: The Wave [Id. 17,300]; The Dawn [Id. 3,666]. In this last ease, (previously reported in the American Jurist,) Ware, J.. after a very careful examination of the authorities, expressed the opinion, “that the seamen, in these cases, have two distinct claims, one for wages, and another for salvage. Their wages are to be paid exclusively from the materials of the ship, they being pledged for that purpose, and the full amount due is to be paid without deduction. But they have no claim for wages against the cargo, except for the freight d\ie upon it. Their claim for salvage is against the general mass of the property saved; and. as in all cases of salvage, the amount is uncertain, depending upon the partic‘ular circumstances of the case.” The learned judge goes on to say. that “the crew are bound to remain by the vessel, and contribute their utmost exertions to save as much as possible from the wreck.” Their service, therefore, wants one essential element of salvage service.— that of being voluntary. And the conclusion’ finally arrived at is, that they are not to he rewarded as general salvors, but are to be allowed, in addition to wages, “a reasonable compensation. pro opera et labore.”</p> <p>It has been said by eminent authorities, that “it matters not whether the recompense be made in the name of wages, or as salvage.” Reed v. Hussey [supra]; 3 Kent, Comm. 196. note; but there are eases where the compensation wholly depends on this distinction, as for example, where the ship perishes, and cargo alone is saved, with no freight due upon it.</p> <p>In England, the exception contended for in The Massasoit, has been established both by the courts and by legislation. The next case to The Neptune, before the high court of admiralty, was The Reliance, 2 W. Rob. Adm. 119. There was a total loss of cargo and freight: the ship perished, and the crew in her. but portions of the ship were saved by strangers, and came into the owner’s hands. The widow and admin-istratrix of one of the crew, promoted a suit for his wages against the owners. The learned judge, (Dr. Lushington,) decreed wages to the time of the seaman’s death. In the next year after this decision. (Sept. 5. 1844,) was passed 7 & 8 Viet c. 112, § 17: that “in all cases of wreck or loss of the ship, every surviving seaman shall be entitled to his wages up to the period of the wreck, or loss of the ship, whether such ship shall, or shall not, have previously earned freight; provided the seaman shall produce a certificate from the master or chief surviving officer of the ship, to the effect that he had exerted himself to the utmost to save the ship, cargo and stores.” And in 1854, was passed the 17. & 18 Viet. c. 188: that “no right to wages shall be dependent on the earning of freight;” with the proviso that in all cases of wreck, or loss of the ship, proof that the seaman has not exerted himself to the utmost to save the ship, cargo and stores, shall bar his claim. “A most wise and salutary substitute,” says Judge Betts, Davis v. Leslie [supra], of the first statute, “for that old figment of law, which had, in many cases, been most oppressively enforced against seamen, that freight is the mother of wages.”</p> <p>In the year 1849, the gentleman who had acted as proctor for the libellants, in The Massasoit, filed a libel in the district court for Massachusetts, on behalf of certain seamen belonging to the shin Niphon, against the owners, for wages. The libellants were on monthly wages, when the ship was abandoned at sea. on account of a dangerous leak, and set fire to, by the master’s orders. They claim wages to the time of the abandonment, on the ground that the seaman’s contract is a simple contract of hiring, and that his title to wages depends only ■on his faithful performance of the service for which he is engaged. Sprague. J., dismissed the libel in a judgment not reported: and upon appeal to the circuit court,the decree was affirmed. ■See The Niphon’s Crew [Case No. 10.277].</p> <p>In The Florence (May 14, 1852) 20 Eng. Law & Eq. 607, where the seamen, by the master’s order, abandoned a leaky ship, at sea, saving nothing of ship, or cargo, Dr. Lushington said, “Their right to wages was gone, and would have been, if á year’s wages had been due them.” In an action for salvage, brought by certain of the crew, who subsequently returned and saved the ship, he allowed the claim; on the ground that by the peculiar circumstances of the case, their contract, as seamen, had been terminated; and they might well be salvors. See. also. The Riby Grove. 2 W. Rob. Adm. 52; The Robert and Ann, Holt. Rule of Road. 55; The Isabella. "8 Hagg. Adm. 427: Hawkins v; Twizell, 34 Eng. Law & Eq. 195; Worth v. Mumford [1 Hilt. 1]: Hobart v. Drogan. 10 Pet. TJ. S.] 122; Collins v. Hathaway [Case No. 3,014].</p>

The parties having entered into a written agreement, to waive all manner of form in the pleadings, and to try the cause on the merits, the case appeared to he as follows, viz: In the year 1808 or 1809, the house of Pearson, Hodgson and Massey of Liverpool, of which the plaintiff was a member, became indebted to Nathan Davidson of Philadelphia, in the sum of about six thousand four hundred dollars; for the balance of the proceeds of a cargo of cotton, which had been shipped…

<p>Case No. 9,263.</p> <p>Practice is Equity — Biel of Review — New Matter — How Bill Filed — When Filed — Mistake in Decree — Compliance with Decree —Delay.</p> <p>1. The ordinances of Lord Bacon still govern bills of review. They may be filed for errors of law, for new matter or proof material in the case, of which the party, at the hearing, had no knowledge.</p> <p>[Cited in Irwin v. Meyrose, 7 Fed. 536.]</p> <p>[Cited in ICetchum v. Breed, 66 Wis. 97, 26 N. W. 277.]</p> <p>2. If the new matter would have changed the decree, though foreign to the issue, it is ground for a review.</p> <p>[Cited in Irwin v. Meyrose, 7 Fed. 536.]</p> <p>[Cited in Traphagen v. Yoorhees, 45 N. J. Eq. 45, 49, 16 Atl/200.]</p> <p>3. The mode of filing a bill of review is. by petition setting forth the grounds, and asking leave to file the bill. As the practice is new' in this court, the bill being filed in the present case, considered as a petition for leave, &c.</p> <p>4. In England, before the enrolment of a decree, a bill of review will not lie.</p> <p>5. To authorise a review, the evidence must not only be newly discovered, but it must appear that by the use of reasonable diligence it could not have been discovered.</p> <p>[Cited in U. S. v. Rico. Case No. 16.160.]</p> <p>[Cited in ICetchum v. Breed, 66 Wis 97, 26 N. W. 277.]</p> <p>[See Baker v. Whiting. Case No. 786.]</p> <p>6. A miscalculation in tbo amount of the decree, by which the defendant is charged with a larger sum than he should be, may be corrected, and the ground of review obviated by entering a credit for the amount, on the unsatisfied decree.</p> <p>[Cited in Tappan v. Wilson, 7 Ohio, 190.]</p> <p>7. It is not necessary in all cases to comply with a decree, before it can be reviewed. As for instance the execution of a conveyance.</p> <p>[Cited in Phillips v. Mariner, Case No. 11,-105.]</p> <p>8. Application for leave must present a prima facie case for a review. On the hearing, the same grounds may be considered.</p> <p>9. Lapse of time will bar a review. Especially where the death of persons interested in the transactions, leaves no probability of explanation.</p> <p>10. The granting of a bill of review is not a matter of right.</p>

This was an issue certified to the court upon an exception to the ruling of the register (Davis). The bankrupt applied to the assignee for the exemption provided for in the 14th section of the bankrupt act. The assignee refused to allow the exemption on the ground that the bankrupt had not yet made a satisfactory surrender of his property.

Libel for collision by Frederick H. Blood, owner of the schooner Maid of the Mist The collision occurred at about 2 o’clock in the morning of the 10th day of September, 1871, in the St Clair river, a short distance below Port Huron, and opposite the Port Huron Middle Ground, so called, The schooner was lying at anchor, in about mid-channel, and the bark was coming down the river, bound on a voyage from Chicago to Buffalo, laden with wheat.

Libel for a collision between the bark Fame and the schooner Wm. Raynor. On the 8th day of October, 18CS, about seven o’clock in the evening, the bark Fame lay at anchor in the St. Clair river, a little below Port Huron, and just opposite the foot of the middle ground (so called), which is on the American- side of the river. As she so lay at anchor, the tug I. U. Masters came down the river with a tow of four vessels, the fourth vessel in the tow being the schooner Wm.

<p>In bankruptcy.</p>

<p>Case Wo. 9,270.</p> <p>Pa texts — Paint Can — Infringement — Equivalent — Claim of Patent.</p> <p>1. The letters patent granted to John W. Masury. July 12th. 1859. for “an improvement in paint cans, &e.,” the claim of which is. “the construction of a metallic can for hermetically sealing paints and other substances, having attached thereto a rim or ring of thin brass or other soft metal, in such a manner that the top or cover may be removed by severing the said rim or ring of brass or other soft metal with a penknife or other sharp instrument, in the manner and for the purposes herein described and represented, or its equivalent,” are valid.</p> <p>2. The invention covered by such claim consists in placing in one end of a can, and adjacent to the edge of the wall or side of the can, a rim or ring of thin brass or other soft metal, thus forming part of the end of the can, and designed to be cut through, to open the can. and is not .anticipated by a can of tin with a band of sheet lead in the outer wall or side of the can, and encircling the circumference of the can, with each of its two edges soldered to the adjacent tin.</p> <p>3. It is an infringement of such claim to make a can with one end wholly of thin tin, which can be easily cut at the outer edge of such end.</p> <p>4. The rights of a patentee depend on the claim of his patent, properly construed, and not on what he may erroneously suppose it covers.</p> <p>[Cited in McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. 78.]</p> <p>[For another case involving this patent see Masury v. Tiemann, case No. 9,271.]</p>

<p>[This was a bill in equity by John W. Masury against Daniel F. Tiemann and others, to restrain the defendant from infringing letters patent No. 24,748, granted to complainant.]</p>

<p>[This was a suit by William H. Matcalm • against Osmond Smith. Heard on demurrer to the bill.]</p>

This was a libel in admiralty, for a cooper’s lay' on a whaling voyage, (one sixty-fifth of the net catchings, being more than $1300,) brought against the master and owners. An exception, that these.parties could not be proceeded against jointly (see 13th admiralty rule), being sustained by the court, there was a discontinuance as to the master. Two other exceptions: 1st. That a master in a whaling voyage is not liable for the^ lays of the men; and 2dly.

Bill by the assignee in bankruptcy of Henry R. Butterfield, the maker of sundry notes, indorsed by respondent Abbott, and held by sundry national banks, the other respondents, to determine whether such banks are entitled to be subrogated to the rights of Abbott as indorser, under a mortgage of real estate to him from the bankrupt to secure his liability for indorsing the notes, his liability having become fixed, and he being insolvent.

Hearing upon pleadings and proofs in equity. The suit was brought by Isaiah J. Mathews and Caroline J. Mathews against Benjamin Springer, executor of the will of Robert L. Mathews, and others.

This was an action of ejectment to recover an undivided part of four lots of land, situate in Cranston and Johnston. The plaintiff [George Mathewson] proved that William Sprague died seised of the lands, on the 27th of March, 1834, and it was admitted that he left three children, William, Amasa, and Al-mira, and that the plaintiff was one of four children of his daughter Susanna, who died in the lifetime of her father.

<p>[This was an action of ejectment by Doe, on the demise of B. Mathuson, against Crawford.]</p>

<p>Case No. 9,281.</p> <p>Officers — Secretary of War — Order Prohibiting Exportation — Carriers—Shipping—Bile of Lading — Failure to Deliver — Seizure — Liability.</p> <p>1. The order of the secretary of war, of the 13th of May, 1863, directing the commanders of departments to prohibit the purchase and sale of horses, mules and. live stock intended for exportation, and to cause the value of the same to be appraised, and the articles to be reported to the quartermaster-general, and to be taken and appropriated to tlie use of the government, and the order of the secretary of the treasury, of the 19th of May. 1863, to the collectors of customs. directing those officers to refuse clearances for the exportation of horses, mules and live stock, and to cause the detention of all animals attempted to be exported in violation of such orders, and to report the detention to the commander of the nearest military district, for his action, in pursuance of such order of the secretary of war, were invalid, as not being authorized by any act of congress.</p> <p>2. Under said orders, live fowls were not embraced within the term “live stock.”</p> <p>3. Whore live fowls were put on board of a vessel, at New York, for exportation to Havana, and three bills of lading were signed for them, one of which was retained by the master of the vessel, and two of which were delivered to the consignor, and forwarded to the consignee, who made an advance thereon, and afterwards the fowls were seized by the collector of customs, under said orders, and removed from the vessel, and the bill of lading in the hands of the master was cancelled by the consignor: held, in action by the consignee against the vessel, on the two bills of lading, to recover the amount of such advance, because of the non-delivery of the fowls as Havana, that the vessel was liable.</p>

<p>Case No. 9,282.</p> <p>Bankruptct — Petition — Requisite Humber or Creditors — Partnership—Act of Bankrupt-ct — Default—How Opened.</p> <p>1. Where the requisite number of creditors join in a petition against a firm, it is not necessary that they should all be creditors of the firm.</p> <p>2. The taking of partnership property, when the firm is insolvent, to pay a debt not a debt of the firm, although each'of the partners may be liable for it, is an act of bankruptcy. '</p> <p>3. Where the requisite number of creditors ( have signed the petition, an adjudication will' not be set aside on the ground that such petition was procured by the bankrupts as an involuntary one to avoid the necessity of procuring the assent of the necessary number of creditors in case of a deficiency of assets; there can be no legal fraud in procuring an adjudication on involuntary proceedings unless it should be followed by a discharge that could not be had on voluntary proceedings. An adjudication by default can only be opened at the instance of a party to the default. .</p>

<p>[This was a libel by Ezra Matthew against Alfred S. Chase.]</p>

<p>Case No. 9,283.</p> <p>Collision — New York Harbor — Foe—Steamboat and Sloop.</p> <p>Where a steamboat in the harbor of New York was proceeding in a dense fog, running close shut off, when she heard a fog horn off her starboard bow from a sloop which was working by sweeps, from an unsafe anchorage in the Narrows. towards the east shore of the bay, and on hearing the horn the engine of the steamboat was stopped, hut was not backed, and she was allowed to drift, and the two vessels came in collision. Meld, that the steamer was in fault for not backing; the sloop was not in fault for being under way in a fog.</p> <p>[See The Aleppo, Case No. 157.]</p>

Action at law [by Nathan Matthews]. The case was heard by the court upon an agreed statement of facts, the material parts of which are stated in the opinion.

<p>Case No. 9,285.</p> <p>Removal or Causes— Alien — Right to Deny Removal.</p> <p>[Where all the requisites of the act of congress relative to removals have been complied with, the state court has no right to deny the removal; and, if it should so deny, all its subsequent acts in the cause are coram non judice and void.]</p> <p>[Cited in Ellerman v. New Orleans, M. & T. R. Co., Case No. 4,382.]</p> <p>[Cited in Lange v. Benedict 73 N. Y. 36; Sharp v. Gutcher, 74 Ind. 364.]</p>

<p>Case No. 9,888.</p> <p>Pleading at Law — Debt on Award — Plea of Revocation — General Issue — Notice of Award — Damages and Costs — General Demurrer.</p> <p>1. There being four counts in a declaration, each founded on an alleged submission and award, a plea purporting to answer the whole action, but alleging only a revocation of one submission, and not showing which one of the four alleged, is bad on general demurrer.</p> <p>2. A plea to an action of debt on an award, that the referees never made any such a-ward as is averred in the declaration, is bad, as amounting to the general issue.</p> <p>3. Ordinarily, notice of an award need not be averred; aliter if it he specially provided in the submission that notice shall be given to the parties.</p> <p>4. An averment that an award was duly published, is equivalent to an averment, that the notice of the award, required by the submission, was given.</p> <p>5. An action of debt lies for two sums, distinctly awarded, the one for damages, and the other for costs; and the omission to add them together, and go for the sum of both, as a sum single, is bad only on special demurrer.</p> <p>6. A count on an award, that on the delivery of a release and the payment of a sum of money by the defendant to the plaintiff, the plaintiff was to deliver a release to the defendant, no averment of readiness or offer by the plaintiff to release the defendant, is bad on general demurrer.</p> <p>[Cited in Smith v. Boston & M. R. Co., 8S Mass. (6 Allen) 270.]</p> <p>7. A count showing differences, a submission of them, an award upon those differences, of a sum of money to the plaintiff, though very general, is good on general demurrer.</p>

<p>[This was a suit for damages by Matthews and Hopkins against P. & E. L. Menedger.]</p>

<p>Error to the district court of Massachusetts in an action of debt, brought by the defendant in error, against the plaintiff in error, to recover the penalty of one hundred dollars, prescribed by the act concerning consuls, &e., of the 28th February, 1803 (Act 1803, e. 62 [2 Story’s Laws, 883; 2 Stat 203, c. 9]), for his refusal, as master of the brig Gem, to take a destitute seaman of the United States on board at the port of Smyrna, at which the defendant in error was vice-consul of the United States.</p> <p>The declaration was in substance as follows: — “For that the said Matthews, heretofore, to wit, on the 28th day of September last past, was the master and commander of a certain brig called the Gem, a ship or vessel of the said United States, owned by certain citizens thereof, whose names are as yet unknown to the said vice-consul;, and which said brig, then lying in the port of Smyrna aforesaid, being a foreign port, was bound to the port of Boston, a port in the said United States; and he, th.e said Matthews, then and there being the master of said brig, was requested by the said vice-consul to take on board the said brig one William Mann, being then and there a destitute seaman of the said United States, and to transport the said. Mann to the port of Boston aforesaid; and the said vice-consul then and there tendered to the said Matthews the sum of ten dollars, as a compensation for receiving and transporting the said Maim as aforesaid; but the said Matthews did then and there wholly refuse to receive the said Mann on board the said brig, against the law, peace, and dignity of the said United States, and contrary to the form of the statute of said United States in such case made and provided: By reason whereof, and by force of said statute, the said Matthews has forfeited and become liable to pay,the sum of one hundred dollars, to be recovered for the benefit of the said United States, by the said vice-consul, in his own name. Yet the said Matthews, although often required, has not paid to the said consul the said sum,” &e.</p> <p>Upon the trial upon the iss„ue of nil debet in the district court [case unreported], a verdict was found for the original plaintiff, upon which judgment was entered; and a bill of exceptions being taken at the trial by the original defendant, the cause was now brought to this court.</p> <p>The bill of exceptions was in substance as follows: — To maintain the issue on his part, the plaintiff’s counsel offered in evidence the certificate of the plaintiff, as vice-consul of the United States for the port of Smyrna, which is in the words and figures following, viz.:</p> <p>“Consulate of the United States. I, David W. Offley, vice-consul of the United States, hereby certify, that on the twenty-eighth day of the present month of September, as vice-consul aforesaid, I requested Richard Matthews, master and commander of the brig. Gem, of Boston, of the burthen of one hundred and sixty-one tons, or thereabouts, then being a vessel belonging to a citizen or citizens of the United States, and lying in the. port of Smyrna, to take on board his said brig William Mann, a seaman of the United States, and then being destitute within my official district, and to transport him to Boston, the port for which the said brig was then destined and soon to sail, on such terms not exceeding ten dollars for the said seaman; and that I then and there tendered to him, the said Richard Matthews, the sum of ten dollars for the said seaman as a compensation for receiving and transporting him as aforesaid, the said seaman being ready to be received (and then and there present) by the said Richard Matthews on board his said brig, But the said Richard Matthews, then and there and ever afterwards, altogether refused and neglected to receive the said sea-man on board his said ship, and to transport him as aforesaid. In faith whereof, I have made this certificate under my hand and official seal, at Smyrna, this 30th day of September, one thousand eight hundred and thirty-six. ' (L. S.) (Signed) David W. Offiley, Vice-Consul.”</p> <p>“I, David W. Offiley, vice-consul, do hereby certify that the foregoing is a true copy from the original, existing in the register of this consulate. Witness my hand and the seal of office, at Smyrna, this 30th day of September, 1836. David W. Offley, Vice-Consul.”</p> <p>This was objected to as evidence of any facts therein stated, except the refusal of the defendant to take said seaman on board, but the district judge admitted the said certificate as prima facie evidence of all the facts therein certified to. The plaintiff’s counsel also produced and put into the case a customhouse copy of the list of the crew of the ship Mars for the voyage referred to in the deposition hereinafter mentioned, and the name of the said William Mann there appeared as one of the said crew.</p> <p>The defendant’s counsel requested the judge to order the plaintiff to be nonsuited, because the action should have been in the name of the United States, and not in the name of this plaintiff; but the judge ruled that the action was rigntly brought in the name of this plaintiff.</p> <p>The defendant’s counsel further requested the judge to instruct the jury, that if the said seaman had deserted from the ship Mars at Smyrna, the consul had no authority to require the defendant to take the said seaman on board his vessel, while the Mars was lying in the port of Smyrna, but should have restored him to the ship Mars; and that while the Mars was lying in the port of Smyrna, the said seaman was not a distressed seaman within the meaning of the statute on which the action was founded. And he further requested the said judge to instruct the jury, that, if the said William Mann was a British seaman, he had no American character, except while he continued to be one of the crew of an American ship, and that, by deserting from the Mars in the port of Smyrna, his American character was at an end, and he was no longer entitled to protection and relief as an American seaman. But it was left to the jury to consider and determine, whether it was satisfactorily proved by the evidence given, that the said William Mann was an Englishman, or a deserter from the ship Mars; or whether the ship Mars was in the port of Smyrna when the defendant was required by the consul to receive the said Mann on board the brig Gem, of which he was master. And the jury were further instructed by the judge, that the consul might rightfully judge on board of what vessel, then being in the port of Smyrna, belonging to a citizen of the United States, and bound to the United States, he would place the said William Mann, if then and there a destitute mariner of the United States in that port, though it were now proved, that the said William was at that time an English subject, and a deserter from the ship Mars; that, having acquired the character of a mariner of the United States, by becoming one of the crew of the ship Mars, in manner above stated, he was, if destitute or in distress, entitled to relief from the consul of the United States, under the act of congress on the subject; and the consul might rightfully require the defendant to receive him on board for conveyance to the United States, on the terms specified in and by the act aforesaid; and that the defendant, master of the ship Gem, could not legally refuse compliance with such requirement, on the ground, that the ship Mars, of which the said William Mann was one of the mariners, was at that time in the port of Smyrna.</p>

This was an action [by William J. Matthews against B. S. Skates and others] on the case tried before Judge Jones and a jury, to recover damages for the alleged infringement of letters patent [No. 5,767], for an “improved composition for metallic packing in steam engines,” granted to Green S. Cox, October 2, 1849. The invention consist ,;d of a composition of lead, zinc, tin. and antimony, for the purpose of forming a steam-tight packing.

[Appeal from the district court of the United States for the western district of Tennessee.] [The material facts are as follows: The steamboat Mary Bell, a large vessel, was discovered to be on fire about two o’clock p. m. of the 27th day of February, 1876, while she was lying at the levee of the port of Vicksburg, Mississippi.

Archibald Nicholls entered a complaint before [Edward] Mattingly, a justice of the peace, stating that he had been robbed of his pocket-book containing fifty dollars, and that he suspected a man named Fisher of having committed the robbery. The justice issued a warrant against Fisher directed to John Cryer, a constable. Fisher was arrested and taken before the justice, and after a preliminary examination was taken in charge by the constable during the night.

<p>Case No. 9,297.</p> <p>Laxd Grant — Auditor's Deed — Ejectment— Evidence.</p> <p>1. An auditor’s deed is prima facie good, and is a title dedueible of record within the meaning of section 2, c. 66. Rev. St. Ill.</p> <p>2. When coupled with seven years’ possession and payment of taxes, it is sufficient to protect a party who can connect himself with it.</p> <p>NOTE. As to validity of auditor's deed, consult Vance v. Schuyler, 1 Gilman. l60; Thompson v. Schuyler, 2 Gilman, 272; Hill v. Leonard, 4 Scam. 140; Irving v. Brownell. Tl Hi. 402; Messinger v. Germain, 1 Gilman. 631; Wiley v. Bean, Id. 302; Graves v. Bruen, li Ill. 431; Tibbetts v. Job, Id. 453; Schuyler v. Hull, Id. 462; Woodward v. Blanchard, 16 Ill. 425.</p>

Bill by [Charles P. Mattocks] the assignee in bankruptcy of Moses A. Pennett against [Ira P. Farrington and others] various creditors of the bankrupt to determine the validity of their respective pretended liens upon the property of the bankrupt under levies of an execution against him made thereon, after he was adjudged bankrupt, without leave from the bankrupt court.

In equity. Bill by [Charles P. Mattocks] an assignee in bankruptcy to annul a fraudulent transfer by the bankrupts [John T. Rogers, Jr„ Prances E. Rogers, Dwight T. Golder, and Edward T. Elden] of their copart-nership assets for the benefit of an individual creditor of one of the copartners.

<p>Case No. 9,299.</p> <p>Bankruptcy — Debtor Buying Claim — Set-Off.</p> <p>A debtor buying a claim against the bankrupt after known insolvency and contemplated bankruptcy of his creditor, cannot set:of£ the claim against his debt. In such a case the debt- or can only prove his claim and receive a dividend thereon, as his assignor could have done.</p> <p>[NOTE. The court subsequently vacated the order for dismissal, and allowed the case to stand on the docket. The complainants then moved to amend, on the ground that an actual sale was made by the defendants, which enabled a set-off to be made, and by means of which the defendants gained an undue advantage. The motion for this amendment was denied, and the bill dismissed without costs. 3 Fed. 212.]</p>

Petition: (1) Plaintiffs [Charles P. Mattox and others] in their petition set forth their title to sue as assignees in bankruptcy of Norris, Hull & Co. (2) That on petition of Lucius Beebee and others, filed in U. S. district court of Maine, on the 23th day of February, 1874, Norris, Hull & Co., on the 2nd day of March, 1874, were duly declared bankrupts, and April 17,1874, plaintiffs were duly elected assignees.

[These are two libels. One by David Y. Howell against the schooner Maud Webster, George S. -Chalmers and others owners, to recover damages sustained by a collision between the schooner and Howell’s derrick. The other was by the owners of the schooner against Howell to recover the damages sustained by the schooner, due to such collision, which they claimed was owing to Howell’s negligence in placing his derrick in such a position.)

In admiralty. Libel in rem promoted in behalf of the owners of a smack, sailing upon the starboard tack, against a schooner on the port tack, lumber laden, drifting, and hardly moving so as to be controlled by her helm, for damages from collision. The cause was heard on libel, claim, answer and proofs.

In this matter the debtor [Henry Mauer] verified his petition and schedules before his. attorney who was a notary public. The register deeming such verification irregular, certified the question for decision.^

Hearing upon the report of an assessor appointed to assess damages after a default. The suit was brought [by Victor E. Mauger] to recover for a loss under a policy of insurance issued by the defendant. The only question in the case was as to the interpretation of several policies of insurance, the material parts of which are stated in the opinion.

The cáse was a suit brought ior the recovery of damages for an alleged breach of contract in the purchase of a cargo of lumber. In accordance with the practice of the state court, which has been held to have been carried into the United States court by force of the provisions of the act of congress of 1872 L17 Stat. 44], the process by attachment has been heretofore referable to any United States court since that enactment in suits of that character.

<p>The libellant [Suchet Mauran, 2d], residing at Providence, R. I.,' was the owner of the ship Helen Clinton, of which S. C. Sprague was master, who, in August, 1868, being at Liverpool, chartered the ship to the respondents [George Warren and others], a firm doing business at Liverpool and Boston, for a voyage to the latter port. It was agreed, among other things, that the ship should be discharged by the charterers at Boston, who should collect the freight and averages, charging two and a half per cent commission on the amount; and that if the ship should put into any port before reaching her destination, she should be consigned to the charterers or their agents, “who are to pay disbursements, charging two and a half per cent commission on the amount of the same, take care of the cargo, and have general charge of the business of the ship.” In the course of the voyage the vessel suffered damage, and was obliged to put back to Queenstown, where she was unloaded and repaired. The charterers were applied to by the master to furnish the money, and agreed to do so, and referred him to Messrs. James Scott & Co., of Queenstown, as their agents, who furnished him £200, and afterwards refused to make further advances. íhe agents testified that they were ready and willing, and offered, to make all necessary advances, if the master would send them his bills and accounts, as, according to their testimony, was the custom of the port in like cases. The master swore that the agents gave no reasons, but simply refused to let him have more money. There was a further conflict of evidence upon the question whether the libellant, who had gone to England on notice of the,disaster, had made a new contract with the respondents varying the terms of the charter-party. This libel was brought to recover a balance of freight; and the respondents claimed the right to retain the commissions which they would have earned at Queenstown, if the master had been supplied with funds, &c., by them, and certain charges and commissions said to be due them at Boston.</p> <p>1. The stipulation that the ship shall be consigned to the charterer’s agent is ultra vires. The duty of the master at a port of necessity is to act on his own responsibility, for the benefit of all parties, and he cannot waive this right and duty. See Pope v. Nick-erson [Case No. 11,274]; Hurry v. Hurry [Id. 6,922]; The Sir Henry Webb, 13 Jur. 639; Warren v. Skolfield, 104 Mass. 503.</p> <p>2. We are not estopped, by suing on the charter-party, to set up that this charge is void, because, where an agent exceeds his authority, it is the excess only that is void. Story, Ag. §§ 166, 272.</p> <p>3. The agents failed to perform the duties required of them.</p> <p>4. If liable at all, it is only for two and’a half per cent on the disbursements.</p>

<p>[This was an action at law by Philip Mauro against Charles W. Botelor.)</p>

<p>[This was an action for damages for personal injury by M. T. Maury against Talmadge.]</p>

At law. Suit against an endorser on a promissory note. This suit was on the following note: “Washington, Nov. 4th, 184S. Two months after date I promise to pay to the order of Hon. John Y. Mason two hundred dollars for value received. Jno. E. Addison.” Endorsed by J. Y. Mason, Seymour R. Bonner, John Y. Wright and the plaintiff, Jourdan W. Maury. The note was protested for non-payment.

<p>This was a libel for a tort. The Maverick, a steamboat, was plying as a ferry-boat between one part of Boston, and another part called East Boston. The brig Southern, of which the libellant was mate, had run a warp across the usual track of the steamer, and near the head of the dock. In her passage, the steamer ran against the warp, and, by means thereof, broke the leg of the libellant, and inflicted other injuries. The claimants [Fettyplaee and Lamson] produced in evidence a license to keep a ferry, granted by the proper authorities, in the year 1832, to William H. Sumner, Stephen White, and Francis J. Oliver, and several instruments by which the said Sumner, White and Oliver, subsequently conveyed to the claimants all the steamboats and other boats and vessels used in said ferry, including the Maverick by name, and also all the rights and privileges which had been granted to the said Sumner, White and Oliver, by the said li--eense, and constituted the claimants their attorneys irrevocable, with power of substitution, to keep and maintain said ferry, and to ■do all other acts, matters and things, which said attorneys, their successors, representatives or assigns, should deem needful or expedient for the support and management of the ferry, and to receive the tolls to their own use.</p>

2 [The above named bankrupt [George S. Mawson] filed his petition herein on the 11th day of July, 1S67, and a warrant in bankruptcy was issued out of this court and a meeting of the creditors of said bankrupt was ordered for the 19th day of August, 1867, on which day the firm of Arnold, Neusbaum & Nordlinger of Philadelphia, creditors, proved their claim and appeared by their solicitor to oppose the discharge of said bankrupt.

[In the matter of George S. Mawson, a bankrupt.] In this case, a creditor filed specifications of objection to the bankrupt’s discharge as follows: First. That the bankrupt has concealed part of his estate, and has been guilty of fraud in not delivering to the assignee all of the property belonging to him at the time of the presentation of his petition and inventory. Second.

Two creditors opposed the discharge of the bankrupt [George S. Mawsou] in this case, on like specifications, which were, in substance, that the bankrupt had influenced the action of Arnold, Nusbaum, and Nordlinger, creditors of his, by procuring their assent to his discharge, since the filing of his petition, by a pecuniary consideration and obligation. LFor prior proceedings in this litigation, see Cases Nos. 9,317, 9.318, and 9,320.]

<p>Case No. 9,320.</p> <p>Bankruptcy — Proceedings for Discharge — Adjournment.</p> <p>Proceedings on the return day of an order to show cause why the discharge should not be granted, can be adjourned by reason of the adjournment of the examination of the bankrupt.</p> <p>[Cited in Re Seabury, Case No. 12,573.]</p> <p>[For subsequent proceedings in this litigation, see Cases Nos. 9,318 and 9,319.]</p>

<p>[This was a bill in equity by Maxwell and others against Call, executor of Means, and others.]</p>

[Appeal from the district court of the United States for the Northern district of Illinois. [This was a libel in admiralty by John C. Maxwell and others, owners of the schooner Supply, against the steamtug Brothers and the propeller the Lady Franklin, for damages resulting from a collision. From a decree of the district court in favor of libel-ants (Case No. 1.909), the owners of the propeller appeal.]

<p>Case No. 9,324.</p> <p>■Carriers — Failure to Deliver Goods — Connecting Lines — Offset of Freight — Shipping —General Creditor — Common Law Action— Maritime Liens.</p> <p>1. It is no reason way a libellant should not recover for the failure of the defendant to deliver goods according to contract, that no •credit is given for the freight earned by defendant in carrying other goods. Such claim should be set up by cross libel.</p> <p>2. Goods were shipped at New Orleans on the Caddo for Jefferson. Texas, and a through “bill of lading given. At Shreveport the trip • of the Caddo terminated, and all the goods with the bill of lading were transferred to the Powell. She delivered a part of the goods and demanded freight from the owner. In a suit to recover the value of a portion of the goods which was not delivered by the Powell, held, that she was liable for the goods lost and could not turn the libellant over to the Caddo for his remedy.</p> <p>3. A general creditor of a ship has no lien on the vessel.</p> <p>4. When she is attached by process from a common law court nothing is or can be seized but the interest of the owner remaining after the maritime liens are satisfied.</p> <p>5. A sale under such seizure conveys only the title of the owners subject to the maritime liens.</p> <p>6. The fact that the proceeds of the sale were absorbed in the payment of certain preferred maritime liens, and were not sufficient to pay them in full, so that the attaching creditors received nothing, does not relieve the vessel from other maritime liens. A common law court is without power to divest maritime liens except by payment.</p> <p>[Cited in Crosby v. The Lillie, 40 Fed. 368.]</p> <p>[See Case No. 1,573.]</p>

<p>Appeal from Arkansas circuit court.</p>

<p>Case No. 9,326.</p> <p>Bankruptcy — Homestead — Exemption — Mortgaged Property — Proceeds prom Sale.</p> <p>1. The head of the family, owning but a single piece of real estate, upon which be resided with his family, but which was mortgaged by himself _ and wife for more than its value, after condition broken, under the exemption laws of Ohio, is not the owner of a homestead.</p> <p>2. Such head of family is entitled to hold exempt from execution and sale personal property, to be selected by him, not exceeding in value five hundred dollars.</p> <p>3. Where all the personal property owned Dy him at the commencement of the proceedings in bankruptcy was covered by a chattel mortgage, he could make no such selection, and the assignee had no authority to set off the property to him.</p> <p>4. Under such circumstances, the bankrupt would be entitled to the exemption out of the proceeds of such personal property; and. upon his application, the court would direct its payment by the assignee.'</p>

This case came up on the certificate of the register, the parties agreeing that the facts were truly set forth in the affidavit of the actuary of the Life Insurance Company in support of the proof. The company lent sixty thousand dollars upon this note: “No. 5724. $60,000. Boston, July 10, 1875.

<p>Case No. 9,328.</p> <p>Bankruptcy — Partnership — Withdrawal op Money by Partner — Fraudulent Intent— Knowledge of Insolvency.</p> <p>Where one of the members of a firm has withdrawn moneys +herefrom with intent to use them for his private purposes, but such withdrawal was not fraudulent as against his copartners, the assignee of the firm cannot prove therefor against the separate estate of such partner, even if the firm estate was known to be insolvent at the time, and the withdrawal was made with knowledge of the insolvency.</p> <p>[Cited in Re Lloyd, 22 Fed. 91.]</p>

The libel of information, brought by the district attorney in this case, charges that the steam tug May had been employed in towing lumber on the Oconto river into Green Bay in this state, without having been inspected in conformity with the eleventh section of the act of’congress, entitled, “An act to provide for the better security of life on board of vessels propelled in whole or in part by steam, and for other purposes,” (10 Stat. 440, approved Feb. 28, 1871), and that…

[These were two appeals from decrees of the district court of the United States for the Eastern district of Wisconsin refusing to entertain jurisdiction of libels of information filed by the United States. The opinions of Judge Miller will be found in Cases Nos. 9,329 and 10,421.]

2 [Final hearing upon pleadings and proofs. Suit brought upon letters patent [No. 33,-370] for an “improvement in stave machines.” granted to William Sisson, September 24, ÍSC1. [Two defenses were set up in the answer of the defendants [Henry Chaffee and others]; (1) That Sisson was not the first and original inventor.

<p>.[Action by May against W. L. Harper & Atherton.] This was a hearing sur motion to dismiss creditors’ petition.</p>

[Action at law by Edwin May against the board of commissioners of Johnson county for infringement of patent No. 110,483, to fasten cell doors in a prison simultaneously.]

Samuel May died February 23, 1870, testate, and by will, dated February 15, 1862, and by codicil, dated February 15, 1870, bequeathed certain pecuniary legacies. Said will and codicil was admitted to probate March 28, 1870, and the plaintiffs [John J. May and others] duly appointed executors. In September, 1870, the plaintiffs made a partial payment of some of the legacies upon which a legacy tax was paid, respecting which no question is raised.

<p>Case No. 9,337.</p> <p>Bankruptcy — Judgment Recovered after Proceedings in Bankruptcy — Guardian and Ward — Limitations—Distributive Fund.</p> <p>1. A claim founded upon a judgment or decree recovered after the commencement of the proceedings in bankruptcy, without leave of the bankrupt court, cannot be proved.</p> <p>2. The liability ot a guardian to his ward is not affected by his discharge in bankruptcy.</p> <p>3. Proof of claims may be filed after an order discharging the assignee has been set aside, and the assignee ordered to proceed.</p> <p>4. The filing of the petition arrests the running of the statute of limitations.</p> <p>5. So long as there is a fund to distribute, all those who had valid, subsisting claims existing at the time of the commencement of the proceedings. upon making proof, will be permitted to participate in it.</p>

[In review of the action of the district court of the United States for the Southern district of Mississippi.] On the 3d of June. 1S7G. the district court of the United States for the Southern district of Mississippi, sitting in bankruptcy, made a decree, to revise certain portions of which these petitions were filed.

<p>Case No. 9,340.</p> <p>Statutes — Title—Attachments—Body of Act— Repeal by Implication.</p> <p>1. The subject of an act is expressed in the title thereof, although the provisions in the act concerning the subject may be different from what may be inferred from or suggested by such title.</p> <p>2. A provision in an act concerning the dissolution of attachments is a matter properly connected with the “subject” of disposing of an insolvent debtor’s property.</p> <p>[Cited in Hahn v. Salmon. 20 Fed. 810.]</p> <p>3. Where the title of an act states that it is to provide a just disposition of an insolvent debt- or’s property, it cannot be maintained that the “subject” of the act is not expressed in the title, because the disposition of such property provided for in the body of the act is, in the opinion of the court, not just.</p> <p>4. A repeal by implication is as much within .the purview of section 22 of article 4 of the constitution of Oregon, and the mischief intended to be prevented by it. as an amendment in terms; but it appearing that the supreme court of the state has decided otherwise, this court follows such decision.</p> <p>[Cited in The Glaramara, 10 Fed. 681.]</p>

Bill on the equity side of the court, setting forth that .Tohn A. Holt, bj' his last will, devised to his wife all his real estate during her life, and after her death, he directs that the said real estate shall be let out for a yearly rent, to be paid to his daughter during her life, and after her decease, that the said estate should be sold at public auction by his executors, and that the proceeds thereof should be divided amongst his grandchildren, share and share alijte,…

<p>Case No. 9,342.</p> <p>Judgment — Res Judicata — Bar — Parties — Attorney and Client — Compromise.</p> <p>1. If a defendant, acting bona fide, and without connivance with the plaintiff to enable him to obtain a judgment is compelled by the judgment to pay what another, and not that plaintiff is entitled to, he may, in an action by that other against him to recover the money a second time, plead the former judgment in bar for his own protection. The money so recovered by the first judgment, is to be considered as recovered to the use of the real owner, who may maintain assumpsit against him for money had and received.</p> <p>[Cited in Yasse v. Comegys. Case No. 16,893.]</p> <p>[Cited in Tarleton v. Johnson. 25 Ala. 300; Deysher v. Triebel. 64 I’a. St. 385; Whipple v. Whitman. 13 R. I. 516; Spencer v. Dearth, 43 Yt. 107.]</p> <p>2. In what eases a compromise made by an attorney at law, will or will not bind a client.</p>

<p>Case Wo. 9,344.</p> <p>Bankruptcy — What Constitutes Insolvency — Submission to Suit — Execution thereon —Attorney and Client — Notice.</p> <p>1. The inability of a merchant to meet his engagements, in the usual course of business, constitutes insolvency, within the meaning of the bankruptcy act [of 1867 (14 Stat. 517)].</p> <p>2. The fact, that a merchant, in a mercantile community, who has no defence to debts maturing in his current business, submits to be sued, to compel payment of such debts, is very high evidence of inability to pay them.</p> <p>3. The sale of the debtor’s property, on an execution issued in such a suit, is a disposition of the debtor's property, for the benefit of the creditor, out of the usual course of business, and is evidence that the creditor has reasonable cause to believe in the debtor’s insolvency, and contemplates a preference.</p> <p>4. Although a debtor is not known to have yet committed an act of bankruptcy, his creditor, although he has reasonable cause to believe, or even knows, the debtor to be insolvent, may sue him, and proceed to judgment, execution and levy, for the purpose of proceeding against him in involuntary bankruptcy.</p> <p>[Cited in Anderson v. Strassburger, Case No. 364.]</p> <p>5. A creditor employed an attorney to collect his debt by suit. All the facts made necessary by the bankruptcy act to invalidate a preference gained by such suit, were made known to such attorney after he entered on such employment, and while engaged in collecting such debt by suit. The suit proceeded to execution and levy: Held, that the knowledge of the attorney was the knowledge of the creditor.</p> <p>[Cited in Wight v. Muxlow. Case No. 17.629.]</p> <p>[Cited in Mathews v. Riggs. 80 Me. 110. 13 Atl. 49; Shattuek v. Bill, 142 Mass. 64, 7 N. E. 39.]</p> <p>C. It made no difference, that the information was received by the attorney after he had been retained by the debtor, and while he was advising the debtor what course to pursue, such retainer by the debtor being after the employment by the creditor and before the recovery of judgment.</p>

On exceptions to commissioner’s report of damages. The propeller Mayflower was adjudged to be in fault in a collision with the steamer Dove, and it was referred to a commissioner to ascertain the damages done to the Dove by the collision. [Case unreported.] The commissioner having made his report, both parties came in and excepted to it in several particulars. The allowance of damages for detention is settled by repeated adjudications. 1 Pars.

<p>Case No. 9,346.</p> <p>Shipping — Goods ox Board — Bill or Lading— Ddtt to Give — Provisions or.</p> <p>1. When goods are laden on board of a vessel, the master is hound by the contract to give a bill of lading of them. But a bill of lading, in its essence, only contains a receipt of the goods with a promise to carry and deliver them according to the terms of the contractor.</p> <p>[Cited in Robinson v. Memphis & C. R. Co., 9 Fed. 139.]</p> <p>2. The price of the carriage and delivery is no essential part of the instrument and is inserted merely for the convenience of the parties. If it is not agreed upon, or there is a misunderstanding between the parties on this point, the master is not obliged to give a bill of lading determining the freight.</p> <p>MAY FLOWER, The. See Case No. 6,147.</p>

This was an action of ejectment [by Eu-sebius Mayhew against Samuel H. Davis].

<p>Case No. 9,348.</p> <p>Salvage — Decree—Amount—Allowing Extra Time for Payment.</p>

<p>Case No. 9,350.</p> <p>Patents — Infringement — Maciiine for Cutting Soi.es — Mechanical Equivalent.</p> <p>The complainant’s patent was for a machine for cutting the soles of shoes by means of a die cutter. This lie accomplished by mounting the die cutter upon a shaft, which, during the operation of cutting, is bolted, and after the cut is made, the die is lifted and unbolted, and then, by means of a rack and pinion at the top of the shaft, is made to perform a half revolution, thus reversing the ends of the cutting die, and then it descends, renewing the cutting operation, and so on continuously. One of the main features of the patented combination was the shaft, upon which, as a centre, the cutting die revolved. The defendants dispensed with the shaft, and substituted therefor a sleeve, by means of which the cutting die rotated, but the reciprocating motion was effected by the same operation, and the result accomplished was the same as in complainant’s machine: Held, that the defendants infringed complainant’s patent.</p>

<p>Case No. 9,353.</p> <p>Bankruptcy — Boxn Given to Assignee — Liabilities of Sureties — Parol Evidence.</p> <p>[A bond under seal given by a bankrupt to the assignee in bankruptcy, and conditioned for the payment of money or the forthcoming of property. and the making good of any deficiency remaining after a sale of the same, being perfect and complete in all respects upon its face, held valid according to its terms, against the sureties, notwithstanding their testimony that they signed it under an agreement with the obligee that the signature of a certain third person was also to be obtained, and that it was understood that the sureties were only bound for the nonremoval of personal property and not for the payment of any money.]</p> <p>From this decision of the district court appeal was taken to the supervisory jurisdiction of the circuit court, the chief justice of the United States sitting. (The judgment of the district court was affirmed. Case No. 9,353a.]</p>

[Appeal from the district court of the United States for the Eastern district of Virginia. [In the matter of D. O. Mayo, a bankrupt. The appeal is from an order made by the district court, upon the petition of the as-signee. Garnett, enforcing a bond against the bankrupt and his sureties, W. Iv. Watts and Lawrence Lottier. Case No. 9,353. [For prior proceedings in this litigation, see Case No. 5,245a.]

[This was an action for libel by Robert Mayo against Francis P. Blair and John C. Rives.] The declaration is as follows: That whereas, heretofore, to wit, on the 7th of July, 1838, at the county aforesaid, the Hon. John Quincy Adams had stated in the house of representatives of the United States, that he had seen an original letter in the handwriting of Gen. Andrew Jackson, president of the United States, dated the 10th of December, 1S30, and addressed to a certain Wm.

[Appeal from the district court of the United States for the district of Massachusetts.] [This was a libel in admiralty by Joshua C. Mayo and others against Jesse Snow and others, owners of the Lydia & Polly, to recover the price of certain supplies. From a decree of the district court in favor of respondents (case unreported), libellants appeal.]

The libellants, the engineer and mate of a tow-boat, sue for wages, and several parties come in as claimants for certain portions of the steamer, and for the proceeds, as mortgagees. Benjamin F. Rogers comes in, by petition, claiming to hold a mortgage, and to be paid the same out of the proceeds.

<p>[Action by the mayor and commonalty against Thomas Moore and his sureties, Charles Simms and Thomas Swann.]</p> <p>Debt, on an auctioneer’s bond. Plea, 1st, non est factum, and 2d, delivered as an escrow, to be his deed, if also executed by ■William Hodgson and Peter Sherran, who did not execute it. Issue to the 1st plea; special demurrer and joinder to the 2d plea, because, 1st, the plaintiffs were not privy to the delivery as an escrow; 2d, the thing to be performed is to be done by strangers and not by the plaintiffs.</p> <p>The obligee must be privy and consent to the conditional delivery. It does not appear that Cleon Moore, to whom it was delivered as an escrow, was authorized by the plaintiffs to receive it as such. It must be on condition that the plaintiffs do something. Shep. Touch. 13, 57; Vin. Abr. 27. But here the condition was to be performed by strangers.</p> <p>Mr. Simms. If Cleon Moore had no authority to receive the deed, then it is neither a deed nor an escrow.</p>

<p>Case No. 9,361.</p> <p>Seamen — W ages — Discharge—Shipping Aktioi.es —Whaling Voyage — Novel Provisions —Share.</p> <p>1. A seaman, during a sea-elephant voyage, was discharged abroad, and received from the master a written order, directing the owner to pay him his share of all the proceeds of the voyage: Meld, that reference was to be had to the shipping articles, not only to ascertain the lay set against the name of the seaman, but also the mode of computation, by which the amount of his share was to be determined.</p> <p>2. During such voyage, the seaman agreed to take his discharge, and to enter into the service of another ship, but he being wholly in the power of the master, and not allowed the option of completing his first voyage, held, that he was not bound by the terms of the discharge, or of his new. shipment, as to the rate of his compensation.</p> <p>3. In such case, the seaman is entitled to a quantum meruit, for the whole time of his service, for both ships, to be apportioned between them.</p> <p>4. The shipping articles were in the usual printed form for whaling voyages, with an additional clause in writing, containing novel provisions as to the mode of computing the shares of the seamen: Meld, that the seaman was not bound by such new provisions, they not having been made known >o him at the time of the shipment.</p>

A rule was obtained to set aside an execution issued against the defendant, upon the ground, that the judgment was satisfied by a note of hand, given by the defendant, with an endorser, and a receipt by the plaintiff’s attorney in fact, endorsed on the power of attorney, and given up to defendant, as follows: “Received from J. Miller, the sum of 1177 dollars, being in full, including costs and expenses of property he sold in Alexandria, belonging to J. Maze.” The note when…

<p>The bark M. B. Stetson, on her voyage from Cuba, with a cargo of sugars, made Boston harbor before daylight on the morning of the 30th of October, 1806. The wind was blowing very heavily from the south-east, and in the darkness the vessel came to anchor about five hundred yards to windward of George’s Island, a place nearer shore than was entirely prudent, if there had been an opportunity to choose the ground. The master thought himself in no special danger, and in the course of the forenoon refused to take the tow-boat D. A. Mills to tow him to Boston at the price of seventy-five dollars. The vessel lay in the same position until soon after one o’clock in the afternoon, when the gale changed to the south-west, and increased in violence, and she parted her starboard chain and dragged towards the island until her stern took the ground, when she swung round and lay nearly broadside on the beach; the tide being between two and three hours’ flood. Her port chain continued to hold, and had some effect in preventing the bark from getting as fast on shore as she might otherwise have done. The master immediately set his colors union down, and the same tug saw the signal soon after and promptly came to his assistance, and on the second trial succeeded in throwing a line on board., put on a very high pressure of steam, and after shifting the position of the hawser twice so that the strain would not pull the tug’s bows to leeward, dragged the bark off the shore in fifteen or twenty minutes, with some aid from her own crew, who heaved upon the port chain. When the bark floated the master of the tug ordered her chain to be cut. and then towed her to Boston. The whole service occupied less than two hours. Almost immediately upon the vessel being relieved the gale began to moderate, and before high-water it had become comparatively calm. Upon examination it was found that the vessel had not been strained nor otherwise seriously injured, nor had she started any leak, so that the cargo was in perfect order. Both vessel and cargo were the property of the claimant and were together valued at about thirty-three thousand dollars. The tug was a large and powerful vessel of her class, valued at about $18.000. The libellants demanded $3000; the claimant offered $300.</p> <p>The bark was not in much danger; she might probably have been hauled off at high-water by her own crew; the work done and risk run by the tug were not greater than are common in towage services. The master explains his signal by saying that owing to the relative position of the two vessels, the ordinary signal for a tug, which is a color set in the rigging, could not have been seen by the D. A. Mills, which was the nearest steamer from which he could expect assistance, • and so he set the only signal that could be seen and understood, which was the flag put at the peak, union down; but that he did not intend this to be taken as a signal of distress, but to attract attention. The service is one of towage merely, and not of salvage. The Princess Alice, 3 W. Rob. Adm. 140; The Albion, 2 Hagg. Adm. ISO, note.</p>

<p>[In the matter of B. F. Mead & Co., involuntary bankrupts.]</p>

[This was a bill in equity by Charles H. Mead against the National Bank of Fayette-ville and others. Final hearing on pleadings and proofs.]

<p>Case No. 9,365.</p> <p>Bankruptcy — Fraudulent Conveyance — Purchaser with Knowledge of Fraud — Improvements — Incumbrances Paid.</p> <p>One who, with notice of the fraud, purchases property fraudulently conveyed by a bankrupt, has no right, after being compelled to surrender it to the assignee, to reimbursement either for improvements upon the premises or for moneys advanced to reduce incumbrances.</p>

<p>Case No. 9,370.</p> <p>Bankruptcy — Petition to Vacate Adjudication —Fraud—Knowledge Thereof — Laches —Repeal op Act.</p> <p>1. A creditor seeking to vacate an adjudication must make his application with due diligence on being informed of the facts, and even slight want of diligence is in such case imputed as laches and forfeits his claim to the aid of the court.</p> <p>2. From the time creditors first receive notice of an adjudication they are put upon inquiry ns to any matters in which it may affect their interests and which can be readily discovered by them, and if they make no inquiries and do nothing, it is evidence of acquiescence on their part.</p> <p>3. In June. 1878. the bankrupt was adjudicated by consent in involuntary proceedings. In March. 1S79, a petition was filed by a creditor who had recovered judgment and had a receiver appointed before the filing of the said petition in bankruptcy to vacate the adjudication on the ground of fraud and collusion; that the paper, suspension of which was alleged as the act of bankruptcy, was not made or passed in the bankrupt’s business as a trader: that the petitioning creditors swore to the petition without knowing its statements to be true; that the greater part of their claims were fictitious; and that they did not constitute the requisite number and amount. It appeared that the petitioner did not prove her claim, but that she combined with other creditors and contributed money to pay the expenses of a re-examination of the proof of debt by one of the petitioning creditors and that she had been admitted to and did oppose an application of the bankrupt for a discharge. Held, that her actions in the proceeding estopped her from any claim of right to make this application; that she was guilty of laches, especially so as she waited until after the repeal of the bankrupt law of 1807 (14 Stat 517), and thereby prevented the bankrupt from going into voluntary bankruptcy. In August. 1878. she had prepared a petition, but abandoned it because she had not then sufficient proof of the facts.</p> <p>4. This did not excuse the delay; she should have made immediate application, and. if necessary. should have applied for such examination of the parties and such taking of testimoni-as was necessary for eliciting the truth.</p> <p>[For subsequent proceedings in this litigation, see 14 Fed. 2S7; 109 ü. S. 230, 3 Sup. Ct. 129.]</p>

Upon an appeal from the judgment of a justice of the peace, the jury found a verdict for the appellee, for $10.09. The judgment of the justice was for $17.50. contended for costs. Appeals from justices of the peace are given by the Maryland act of 1791 (chapter 6S). The condition of the appeal-bond only provides for costs in case the judgment shall be affirmed. The appellee cannot sue upon the bond, for the condition has not been broken.

This bill was filed against the defendants [Beale and Latimer], as executors of Philip J. Ford, deceased, late a citizen of Maryland, by… Held: in conformity with the case of Zimmerman v. Anders, 6 Watts & S. 218, that the conservative provisions of the statute of Elizabeth were in force in Pennsylvania; but it is equally true, that that statute has been held not to be in force in Pennsylvania, and also that, independently of it, the more extensive range of charitable uses…

[This was an action by William Meade. against the deputy marshal of the Virginia district.] Motion to be discharged under a writ of habeas corpus.

<p>Application for an attachment for contempt.</p> <p>cited 1 W. Bl. 555; 4 Bancr. Hist. U. S. 414; Act July 13, 1S60, § 9 (14 Stat. 102); Act July 13, 1S0G, § 14 (14 Stat. 131); Conk. Tr. 740; Act July 20, 1S68 (15 Stat. 125); Act 1S31 (4 Stat. 457); 3 Am. Law Rev. 641.</p> <p>cited In re Judson [Case No. 7.563]; 5 Taunt. 260; Act March 2, 1831; Brightly, Fed. Dig. 94, 166, 168, 189; 1 Nev. & M. 725; [Geyger v. Geyger] 2 Dali. [2 U. S.] 333; Henry v. Ricketts [Case No. 6.386]; De Lome, 89, note; Writs of Assistance; Int. Rev. Acts 1S66-67, p. 2SG; L. R. 417; Law U. S. Cts. 47; Code Ga. 995; Hurd, Hab. Corp. 325-32S; 11 Exch. 290; Brown v. Galloway [Case No. 2,006],</p>

Appeal in bankruptcy. In the bankruptcy proceedings against [R. D. Everett, assignee of] L. H. Clark, in the district court, the petitioners, Daniel F. Meador and his copart-ners, filed a petition in the nature of a bill in equity for the enforcement of a lien, to which the district court sustained a demurrer and dismissed petition. The petitioners, Meador & Co., appeal from this action of the district court.

[Appeal from the district court of the United States for the district of Louisiana. [This was a libel by M. Meagher and J. Meagher against the steamboat Lizzie, to recover a balance due for repairs.]

Replevin for two hundred barrels of rye flour. Plea, that the property of the goods at the time, when, &c. was in one Charles W. Greene, and not in the plaintiff [John Meany]. Replication denying the plea, and alleging property in the plaintiff; upon which an issue was taken to the country.

A creditor had obtained an order for the examination of the bankrupt [Stephen A. Mealy] and other witnesses in respect to the property, &e.. of the bankrupt, and upon that examination it was insisted by the bankrupt that the creditor was bound to pay not only the register’s fees for the direct examination of such bankrupt and witnesses, but also fees charged for taking down the statement of the bankrupt on the so-called cross-examination of the bankrupt by his own counsel,…

<p>Case No. 9,380.</p> <p>Bankruptcy — Liens—Judgments—Priority—As-signee — Duty' as to Petitioning Court — Sale op Encumbered Property.</p> <p>1.L. C., a creditor, recovered two judgments, in a county court of North Carolina, against a debtor, executions on which judgments were enjoined by the United States military commandant. The injunction was thereafter rescinded, and fieri facias were filed, but never delivered to or acted on by the sheriff. Subsequently two other judgments against said debtor were respectively obtained by R. T. and De V. & G., creditors, upon which executions issued, and property of debtor was levied on by the sheriff, before proceedings commenced in bankruptcy. Debtor thereafter was adjudged bankrupt, and assignee was appointed, who agreed with the sheriff that the property so levied on should be offered and sold by the assignee, free from all incumbrances, on account of said executions and levies, and it was sold accordingly. Behl. that L. C., the senior judgment creditor, is not entitled to any of the proceeds of said sale, as he had no perfected lien upon proceedings commenced in bankruptcy.</p> <p>2. The action of the United States military officer preventing him from issuing executions, does not help or cure the defect.</p> <p>3. The junior judgment creditors are entitled to have their claims paid pro rata by the as-signee out of said proceeds, after deducting expenses. costs, and fees of sheriff and assignee, and this bv virtue solely of said agreement."</p> <p>[Cited in Re Tills, Case No. 14,052.]</p> <p>4. It is not the duty of an assignee to petition the court respecting the sale of encumbered property of bankrupt, unless he believes such sale will produce a larger fund for the general creditors'whom he represents.</p> <p>[Cited in Re Carrier, 39 Fed. 201.]</p> <p>5. Assignee may sell encumbered property in his possession 'without petitioning the court, or without an order of the court, but in so doing he sells subject to lawful encumbrances. He can convey no higher or better interest than he took.</p> <p>[Cited in Sutherland v. Lake Superior Ship-Canal, R. & I. Co., Case No. 13,643; Re Cooper, Id. 3,190.]</p>

<p>Case No. 9,381.</p> <p>Taxation — License Tax on Banks — Capital— Surplus Earnings.</p> <p>The term "capital,” as used in the 1st subdivision of the 70th section of the internal revenue act of June 30, 1S64 (13 Stat. 251). means, in reference to a bank whose charter fixes the amount of its capital, the amount of capital so fixed, and does not include the surplus earnings of such bank, so as to subject it to a license tax on such surplus earnings, as capital.</p>

<p>Case No. 9,391.</p> <p>Bottomry — Supplies—What Are Necessary — Master — Competency as Witness.</p> <p>1. In a suit by the holder of a bottomry bond, given by the master of a vessel, in a foreign port, for necessary supplies, the master is a competent wituess. to prove that the supplies were furnished, and that they were necessary.</p> <p>2. Supplies are necessary, when they are fit and proper for the service in which the vessel is engaged, and such as a prudent owner would order.</p> <p>[Cited in The Lulu, 10 Wall. (77 U. S.) 201; The George T. Kemp, Case No. 5,341.]</p> <p>3. Particular items examined.</p> <p>That the master is a competent witness, in favor of the holder of the bottomry, was decided in Furniss v. The Magoun [Case No. 5.163], a case reported since the decision of Deshon v. The Medora [Id. 3.S20]. See same case, Leland v. The Medora [Id. S,?-”*7].</p>

This cause had been referred to arbitrators by rule of court, who made a report in favour of the plaintiff, for 1850 dollars, provided the plaintiff should give to the defendant a bond of indemnity against Holt & Co. [assignees of McCall Medford] and two or three other persons.

This was an action of trover, brought by the plaintiffs [Samuel Meeker and others,] against the defendant [Luther Wilson], who was a deputy sheriff of the county of Bristol, for the conversion of a parcel of sugars, alleged to be the property of the plaintiffs. At the trial, the facts proved or admitted were as follows.

[This was an action of ejectment by William Newton Meeks against Ferdinand Vas-sault and others.] The land in controversy is one hundred-vara lot number ten, of the liundred-vara survey south of Market street, in the city of San Francisco, and within the limits embraced by the Van Ness ordinance, the decree confirming the pueblo title, and the acts of the legislature of California and of congress, confirming it; and not within any of the exceptions mentioned in said decree…

<p>[This was a bill in equity by Joel Meerse and others against R. L. Allen. Defendant demurs to the bill.]</p>

<p>[This was a bill filed by Evalena L. Me-graw against J. Bond Carroll and others to restrain certain alleged infringements.]</p>

The bill [by Adolphus Meier and others against Kansas Pacific Railway and others], which was originally filed in the state court, seeks to foreclose a mortgage on the railway and property of the Kansas Pacific Company —one of the companies aided by congress in what is known as the Pacific system of railroads.

Motion [by Adolphus Meier] to remove H. Villard, one of the receivers heretofore appointed by the state court, from whence this cause was removed. Mr. Carlos S. Greeley was the other receiver. The circumstances under which they were appointed, the grounds upon which the removal was sought, and the action of the court and the reasons for such action, appear in the opinions of the judges.

This was an action [by Loring Meigs against the Sun Mutual Insurance Company] to recover the amount of a marine policy of insurance, effected on the ship Joseph Meigs, on a whaling voyage from Mattapoisett, Massachusetts. The terms of the policy were, that it was to continue in effect until the vessel arrived at the same port, after her voyage, and had been moored 24 hours in safety.

<p>Case No. 9,397-</p> <p>Patents — -Stop-Valves for Petroleum — Cup-Shaped — Convex-Form.</p> <p>The letters patent granted to Albin Warth, April 19, 1870, for an improvement in stop-valves for petroleum packages, make, in each one of their two claims, a cup-shaped disk, a material part of the invention, such disk being a valve-seat for a valve, and having the effect, by reason of being cup-shaped, to sink the valve within the package, so that there shall be no part projecting outside. The cup-shaped form of the disk is made, by the specification and claims, an essential part of the invention. •Such patent is not infringed by a stop-valve of convex-form, not suspended below the surface of the package, though in other respects constructed like the patented arrangement</p>

[These were actions in ejectment brought by Rebecca Meister, executrix of Bernard L. Meister, against F. H. Bissell and others, and by the same plaintiff against Robert C. Moore and others, for the possession of certain property.]

<p>Case No. 9,399.</p> <p>Bankruptcy — Partnership — Joint Ckeditor — Adjudication op One Partner.</p> <p>An adjudication of bankruptcy may be made against one partner only upon a joint debt. The partnership creditor has such an interest in the separate property of any one of the partners, that he may proceed against one alone.</p> <p>[Cited in Re Jewett, Case No. 7.306; Re Redmond, Id. 11,632; Re Lloyd, Id. 8.429; Re McLean, Id. 8.S79; Re Webb, Id. 17.317; Re Litchfield, 5 Fed. 50.]</p> <p>[Cited in Curtis v. Woodward, 58 Wis. 506, 17 N. W. 328.]</p>

Libel for wages. The libel was filed October G, 1873, and is based upon a due bill for $44.75, for services as seaman in the season of 1871, bearing date June 3d of that year.

The question decided by the court arose in the case of John H. Mellor & Co., who presented their petition for the benefit of the bankrupt law [of 1807 (14 Stat. 517)], on the 6th ult., at which time the court ordered cause to be shown on the 5th of September, why they should not be declared bankrupts. It seems, that on the day after this order was made, an execution was placed in the hands of the sheriff of Allegheny county, in favor of Adams H.

[This was a bill by Henry Melius against William D. M. Howard asking that certain conveyances between the parties be set aside, and for an accounting and settlement to the plaintiff as partner in the firms of Melius & Howard and Melius, Howard & Co.] In this case, F. C. Loring, for respondent, moved for an order of publication of the evidence in an equity suit.

Case for infringement of a patent, dated the 3d of August, 1822, for an improvement “in the mode of securing from decay the plank, forming the deck, waist, or bottom of ships or vessels, at or near the head of the nails, spikes, or bolts, in correction of the mode heretofore adopted of boring and driving the nails, spikes, or bolts, by which the planks are secured to the timber, beams, or frames, and the mode of securing the head from the effect of the water.” Plea, the…

This was a bill of revivor, in which it was alleged that, at the May term of this court, in the year 1853, [Henry Melius,] the complainant, exhibited his bill of complaint against one William I).

<p>Case No. 9,406.</p> <p>Bankruptcy — Partnership—Sale is Contemplation op lNSOLVExcy— Division op Proceeds —State Exemption.</p> <p>Within a month prior to the commencement of tlie proceedings in bankruptcy, and while the firm was insolvent, a large amount of the partnership property was sold and the proceeds divided between the partners, and the firm then offered to settle with their creditors at fifty per cent. One of the partners, upon receiving his share of the proceeds of said sale, immediately purchased property which was exempt under the state statute. HrhI. that under the circumstances such property was not exempt, but must be regarded as partnership assets held in trust for creditors.</p> <p>[Cited in Re Corbett, Case No. 3.220.]</p>

<p>Case No. 9,412.</p> <p>Prize — Appraisers—Libel not Filed — Notice— Claimant — Order Signed out of District.</p> <p>1. This vessel having been sent in to the court as a prize, the court, on the application of the district attorney before libel filed, and before any appearance by any claimant, and without notice to any claimant, made an order appointing appraisers to value the prize, with the view to her being taken for the use of the government. After the libel was filed the claimant appeared in the suit, and moved to vacate the order because it was made without notice to him. Held, that the motion could not be granted.</p> <p>2. Property captured as prize is under the-control of the court from the time it is delivered to tile court by the prize-master until it is finally disposed of. and the filing of a libel is not necessary to give the court cognizance of the property.</p> <p>3. The fact that the order appointing appraisers was signed by the judge when out of this district is no objection to its validity. [Subsequently a decree of condemnation and forfeiture was entered against the vessel (Case No. 9,413), which decree was affirmed upon appeal to the circuit court. Id. 9,414.]</p>

A special session of the circuit court, in Washington county, for the trial of criminal causes, was holden on the 2d of September, 1833, by virtue of the following order, made at the last term, on the 29th of May, 1833: “Ordered, that a special session for the trial of criminal causes, be held on the first Monday of September next, and that the marshal summon the usual number of grand and petit jurors;” and of the following clause of the 5th section of the judiciary act of…

<p>Case No. 9,413.</p> <p>Pkize — Blockade—Capture — By whom Made— When Liable to Captuke.</p> <p>1. Vessel and cargo condemned for an attempt to violate the blockade.</p> <p>2. A seizure of a vessel for the violation of a blockade is lawful, if made by a national vessel, though not made by a vessel forming a part of the blockading force.</p> <p>3. A vessel guilty of an unlawful trade with the enemy is liable to capture for the offence at any time during the voyage in which the offence is committed.</p> <p>This decree was affirmed, on appeal, b.v the circuit court, July 17, 1803. [Case No. 9,414].</p>

[Appeal from the district court of the United States for the Southern district of New York. [This case was first before the district court upon motion of claimants to vacate order appointing appraisers. Motion overruled. Case No. 9,412. Subsequently a decree of condemnation and forfeiture was entered against it. Id. 9,413. It is now heard upon appeal from tilia decree.]

Suit at law was originally brought by [T. E.] Brown & Co. in this court for paving; subsequently the city filed its bill in equity against Brown & Co. in the state court, on the same contracts, to restrain certain collections by Brown & Co., and for an accounting. This suit the defendants removed to this court, and by consent of parties the subject of the action at law was by cross-bill united with this suit.