Volume 2 — Federal Cases

[At law. Action of debt on a policy of life insurance in the court of common pleas No. 4, Philadelphia comity, Pa., by Arthur’s administrators against the New Englan'd Mutual Life Insurance Company.

<p>Case No. 667.</p> <p>Seaman’s Wages—Stale Claim.</p> <p>In 1872, W. shipped at Sag Harbor, N. Y., as mate on the steamboat A. When he left her in November; 1872, there was a balance of $40 due him for wages. In March, 1876, he filed a libel against the A. to recover that balance. One-half of the vessel was sold in June, 1875, and the other half in February, 1876, to a bona fide purchaser without notice of the libel-lant’s claim. During all the time before the filing of the libel the vessel was running or laid up in the waters about New York. She was in Sag Harbor twice a week from February to April, 1873. In 1875, she was in custody of the marshal of the eastern district, in which Sag Harbor is situated, for 125 days, and was then bonded. The libellant resided all the time in Sag Harbor. He did not know what had become of the vessel, but he made no effort to find her till the fall of 1874, when he put the claim in the hands of the proctor who afterwards filed this libel: Held, that the libel-lant had lost his lien, by his laches in seeking to enforce it, the rights of bona fide purchasers having intervened.</p> <p>[Cited in The Wexford, 7 Fed. 680; The Bristol, 11 Fed. 163.]</p>

<p>Case No. 568.</p> <p>Seamen’s Wages—Chartered Vessel—Liability or Owners.</p> <p>1. Where seamen were hired by a master of a steamer, who was put in charge by the charterers of the vessel, under their contract with the owners, and after fifteen days labor in getting the vessel ready for sea, were discharged without pay, the voyage being given up: Held, That the seamen had a lien on the vessel for their wages, notwithstanding the charterers by the contract were to pay the crew;</p> <p>[Cited in The International, 30 Fed. 376.]</p> <p>[See The Samuel Ober, 15 Fed. 621; Hart v. The Enterprise, Case No. 6,151.]</p> <p>2. The main duty of seamen being in ship’s work, an incidental condition of their contract to do work on shore, does not deprive them of a lien upon the ship.</p> <p>[Cited in The L. L. Lamb, 31 Fed. 34; The International, 30 Fed. 376.]</p>

<p>Case No. 669.</p> <p>Collision at Pier—Pleading—Towboat and Tow.</p> <p>1. A steamboat was lying, properly moored, at a pier in the North river, in the harbor of New York. A schooner, in tow of a tug, was towed by the pier, when the tow-line parted, and the schooner, by force of the wind and tide, was carried against the steamboat. The owners of the steamboat filed a libel against both the schooner and the tug to recover the damage occasioned by the collision. The libel aliened no other facts than as above stated. The answer of the schooner admitted that the accident arose from the parting of the line, and that the schooner furnished the line, and averred that the line broke because it was not sufficient for towing the schooner stern foremost, and charged as a fault on the tug, the omission to take a second line. The answer of the tug denied that the breakage of the line arose from any act or neglect of the tug. The libellant proved only the facts alleged in his libel. Neither the schooner nor the tug ofEered any evidence whatever. Held, that, as the steamboat was lying moored at a pier, and unable to move or to do anything to prevent the collision, it was sufficient, as against the schooner, to aver that she ran into the steamboat.</p> <p>[Cited in The Chickasaw, 38 Fed. 363.]</p> <p>2. That, under the answer of the schooner, and in the absence of any evidence to the contrary, the schooner must be presumed to have been adrift by her own act, and must be held liable for the damage which she did by drifting against the steamboat.</p> <p>3. That, as the schooner was not connected with the tug at the time of the collision, and the power which drove her into the steamboat was that of wind and tide, there was no presumption of responsibility for that act, against the tug; and that on the evidence there was no careless action shown to have been committed on her part.</p> <p>[Cited in The Chickasaw, 38 Fed. 361.]</p> <p>4. That the libel, therefore, must be dismissed as against the tug, and a decree rendered against the schooner.</p>

[In equity. • Bill by the Asbestos Felting Company, owners of a patent, against the United States & Foreign Salamander Felting Company, owners of a junior patent, for the cancellation of such junior patent, and for an injunction restraining the prosecution of suits on such patent.

The petitioner claimed his freedom under the clause of the will recited in the margin. Upon the death of the testatrix, the legatee, who was also executor, took possession of the petitioner and the other slaves bequeathed to him by the 'will and' held them until he sold the petitioner to the defendant contended that it was a bequest of freedom to the slaves, upon the occurrence of the event of removal or sale.

[In admiralty. Libel by John Ashbahs and others against the sloop Trusty and cargo for salvage. Decree for libellants. Motion by libellants for an order of distribution.

<p>[In. admiralty. Libels by Ashbrook and others against the steamer Golden Gate.</p>

<p>[In admiralty. Libel by Thomas Adams and others against the ship Ashburton and cargo for salvage.</p>

At law. This was an action of trover for a conversion, alleged to have been committed Dec. 21st, 1841.

[In equity. Bill by Edward H. Ashcroft against the Boston & Lowell Railroad Company to restrain the infringement of patent No. 58,962. Bill dismissed. An appeal was subsequently taken to the supreme court, where this decree was affirmed. 97 U. S. 189.]

At law. This was an action on the case, for the infringement of letters patent, granted to Arthur Neill, as inventor, January 22d, 1861, [No. 31,187,] for an “improvement in moulds for shaping india-rubber pencil heads,” and assigned to the plaintiff. By a stipulation in writing, it was tried before the court without a jury. The stipulation further provided, that, if the plaintiff had judgment, it should be for the sum of $10.000, and costs.

<p>[In equity. Bill by Charles E. Ashcroft against William Hollings to enjoin infringement of letters patent No. 57,245.</p>

In equity. Bill in equity for an injunction to restrain alleged infringement of letters-patent for an improvement in pipe-tongs, granted to James R. Brown Nov. 30, 1858, [No. 22,157,] and for an account of profits. The defendants claimed the right to make and sell the patented article under several assignments.

[In bankruptcy. Petition by John Boothe, a deputy sheriff, against the assignee in bankruptcy of Ashley, to enforce a prior lien created by an alleged attachment

At law. This is an action on a promissory note, dated August 19, 1867, for $3,000, made by the defendants to the Provident Life Insurance and Investment Company. The defendants were subscribers of that company, and the note in suit was given for an assessment upon their stock. The original charter of said company authorized it to transact a “life and accident insurance” business.

In equity. Bill for an injunction to stay proceedings upon a judgment at law upon a single bill for $766.65 given by the complainant to J. & P. Turner, and by them assigned to the defendant McKim. Upon the coming in of the answers of the defendants, moved to dissolve the injunction, and Mr. Tabbs, for the complainant, filed exceptions to the answer of the defendants J. & P, Turner. THE COURT (nem. con.) overruled the exceptions; and as to the matter of equity in the bill,

In equity. The bill set forth a partnership between the parties commencing in 1822, and terminating in March, 1829, when the following assignment was made by the complainant: “Whereas, there is reason to believe, that in keeping the books of the firm of Askew & Odenheimer, errors and misentries have occurred, of which the amount cannot be ascertained, but which errors are injurious to the interests of John W. Odenheimer, one of the partners of said firm, and it is just and…

In equity. By the eleventh section of a Pennsylvania statute of 1794, directing the descents of intestates’ real estate in that commonwealth, it is enacted, as set forth in the left hand column below; and by the seventh section of an act of 1797, entitled an act supplementary to the former one,—the preamble to one section of which says, “And whereas the provisions of the act to which this act is a supplement, appear to be incomplete,”—it is enacted as set forth in the right…

In bankruptcy. In this case the register certified to the court, that an application had been made for the re-examination of claims of the Phoenix National Bank and Richard Irvin & Co., against the estate in bankruptcy; that he made an order fixing a time for hearing the application, and, having taken the examination of the witnesses called by the parties, made an order, on the application of the bank and Richard Irvin & Co., requiring the framing of issues; and that, on the…

<p>In bankruptcy.</p>

<p>Case No. 592.</p> <p>Bankruptcy—Voluntary Assignment—Releases—Preferred Creditors.</p> <p>Creditors who have executed releases according to the terms of voluntary assignments, are to be considered as having been preferred thereby over the creditors of the petitioner, who have not executed- releases.</p> <p>NOTE, [from 3 Pa. Law J. 380.] “The opinion of the late Judge Baldwin is given without any statement; and as the question certified to the court is not precisely stated in the opinion, we have examined the record, and give below the question in terms as certified by the district court, and some facts which may serve to prevent any misunderstanding of the decision. The report of the commissioner shows the amount of debts of unpreferred creditors to be $258,732.60, of whom those holding debts amounting to $147,911.05 assented to the discharge. But of these the larger portion though not preferred, had released the petitioner in accordance with the terms of the assignment, which stipulated that all who released within a certain time should be paid pro rata. It was objected that the creditors who had released in accordance with the terms of the assignment, were preferred over those who had not released. The question was thus certified by the judge of the district court: Are the creditors who executed the release stipulated for in the assignment of G. IV. A., a copy of which is annexed to the petition, creditors ‘not preferred,’ within the meaning of the second proviso of the second section of the bankrupt law?</p> <p>“The decision of the circuit court was, that the releasing creditors were preferred within the meaning. &c. The answer of the circuit court should be in the negative, as it is evident from the course of argument in the opinion, and the manner in which the question is therein stated, that it was understood affirmatively by the circuit court.”</p>

[Application for a peremptory writ of mandamus. In an action of assumpsit by William H. Aspinwall, Joseph W. Alsop, Henry Chauncey, Charles Gould, and Samuel L. M. Barlow against the board of commissioners of Knox county, to enforce the payment of certain coupons of bonds issued by the defendant, judgment had been rendered for plaintiffs for $17,832.36, (case not reported,) and, on writ of error, was affirmed by the supreme court. Board Com’rs Knox Co. v. Aspinwall, 21 How.

[In admiralty. Action in the marine court of New York city by Norman. Assign against the master of the brig G. B. Lamar for seaman’s wages. Judgment for plaintiff. Motion in United States district court by plaintiff for summons against the owners of the brig to show cause why the judgment should not be paid by said brig and why an attachment should not issue against her.

<p>Case No. 594.</p> <p>Bankruptcy—Resolution, op Composition—Confirmation by Requisite Number—Amendment op Bankrupt’s Statement.</p> <p>1. A motion, to record a resolution of composition in bankruptcy, was opposed by creditors on the ground that it had not been confirmed by the number of creditors required in accordance with the debtor’s statement presented at the creditors’ meeting. The debtor claimed that the statement was inaccurate, and that an accurate statement would show that the composition had been confirmed by the requisite number: Held, That the statement could not be corrected at this time, but should have been corrected at the creditors’ meeting. At such meeting the creditors are entitled to examine the debtor as to any corrections intended to be made.</p> <p>2. Confirmation of the resolution of composition denied, the requisite number of creditors according to the list presented at the creditors’ meeting not having signed, with leave to renew motion when the list should be corrected and properly confirmed.</p>

At law. This case resembles that of M’Cul-loch v. Girard, [Case No. 8,737,] which was tried at the October sessions of this court in 1822, the present plaintiff having been one of the persons on whose account Mr. Jones made the contract with the defendant. The few points of difference between the two cases are totally immaterial to the point decided in this cause, and therefore are not stated.

<p>Case No. 596.</p> <p>Taxation — Land Purchased from United States—Executive Power — Judicial Review —Unconstitutional Laws.</p> <p>1. Land purchased from the United States and paid for, is liable to be taxed.</p> <p>[Cited in Pacific Coast Min. & M. Co. v. Spargo, 16 Fed. 350.]</p> <p>2. And this applies to estates legal and equitable. The final certificate can no more be disregarded by the government than a patent.</p> <p>[Cited in Pacific Coast Min. & M. Co. v. Spargo, 16 Fed. 350; Cawley v. Johnson, 21 Fed. 495; Hamilton v. Southern Nev. Gold & Silver Min. Co., 33 Fed. 566.]</p> <p>3. The executive power cannot be revised and corrected by the judicial.</p> <p>[Cited in Case of Electoral College of South Carolina, Case No. 4,336.]</p> <p>4. Matters #f form and discretion are for executive determination.</p> <p>5. An unconstitutional law can afford a justification to no one.</p> <p>[Cited in Pacific Coast Min. & M. Co. v. Spargo, 10 Fed. 350.]</p> <p>[C. Cited in Hamilton v. Southern Nev. Gold & Silver Min. Co., 33 Fed. 566, to the point that equitable title to lands once public passes to individuals on entry and payment, leaving legal title in the government in trust for the purchaser until the issue of a patent to him.]</p>

In admiralty. Libels for supplies, towage services, and repairs. The only defense was, that the claimant was a subsequent pur.chaser for a valuable consideration, in good faith and without notice of liens, and that the liens had become stale and extinguished as against the vessel in claimant’s hands, by failure of the libellants to prosecute within a reasonable time.

<p>Case No. 598.</p> <p>Salvage—Compensation—Apportionment.</p> <p>[Seven large wrecking vessels and several small boats, carrying in all 78 men, went to the assistance of a schooner which had run ashore on a Florida reef. All were employed to assist in saving the schooner and cargo, and spent four days (during which the sea was rough, and the schooner became a total loss) in saving and bringing into port the cargo, a portion of which they got by diving; and the aggregate value of the cargo and materials saved was $41,756.41, of which the large vessels saved $41,451.84. field, that the large vessels should be allowed a salvage compensation of 30 per cent, of the value of. the property saved by them, less costs and charges, and that the small boats should receive 50 per cent, of what they saved.]</p> <p>[Cited in Baker v. Cargo and Materials of The Slobodna, 35 Fed. 542.]</p>

[In admiralty. Libel by Joshua Atkins and others against the Fibre Distintegrating Company of New Jersey.] This~case came up on a motion to set aside an attachment against the property of the respondents, a foreign corporation. [Motion denied. This cause was heard on the merits. Atkins v. Fibre Disintegrating Co., Case No. 601.]

In admiralty. This was an action in which the libellants, who were the owners of the ship Elizabeth Hamilton, sought to recover the sum of $19,500, as the sum due them upon a charter of that vessel made with the respondents. As to the contract there was no dispute.

In admiralty. The libel in this case charged, that the respondents were a corporation, and had property in the eastern district of New York; that a charter party was executed by and between the libellants and the respondents, by which the latter chartered the ship Elizabeth Hamilton, for a voyage from the port of Kingston, Jamaica, to New York, agreeing to provide and furnish a full cargo of bamboo, in bundles five feet long and two feet square, both under and upon deck, to…

In admiralty. This was an action by Joshua Atkins and others, the owners of the ship Seth Sprague, against August Horr-man, to recover freight on some pipes of wine brought on the ship from Rotterdam to New York in May, 1859, consigned to the respondent. The defence was that a pipe of wine worth more than the freight was lost on the passage by carelessness. This pipe, on arrival of the vessel, was found to have one head pressed in so that the wine had leaked out.

[At law. Action of assumpsit by Elisha Atkins against Charles Peaslee, collector for-the port of Boston,] for money had and received, and the case came before the court upon an agreed statement of facts as follows: On the 24th of June, 1S53, the plaintiff imported into the port of Boston, in the bark Tom Corwin, from Cienfuegos, sundry hogsheads of molasses, and also sundry hogsheads and tierces of sugar, of which he duly made entry for warehousing, and requested the…

<p>Case No. 604.</p> <p>Railroad Companies—Receivers—Advances to Meet Wages Preferred to Mortgages.</p> <p>When the company defendant was in difficulty, before the appointment of a receiver, from its employes threatening to strike for the nonpayment of wages due for months past, and on appeal by its officers to the petitioners, who were holders of bonds, they advanced the money necessary for the payment of the back wages due, on a distinct understanding that they should be reimbursed out of the first net earnings of the company, and that the money .advanced should he paid to the employes; and afterwards, before their reimbursement, the road went into the custody of the court under the appointment of a receiver. Held, that the advances must be paid iu preference to the claims of mortgagees, out of income accruing while the road was in the custody of the court.</p> <p>[See note at end of case.]</p> <p>[NOTE. Other decisions that wages of employes, accruing prior to the appointment of a receiver, should have priority over the claims of mortgagees or other lienholders, are as follows: Turner v. Indianapolis, B. & W. Ry. Co., Case No. 14,258; Taylor v. Philadelphia & R. R. Co., 7 Fed. 377; Union Trust Co. v. Souther, 107 TJ. S. 591, 2 Sup. Ct. 295; Oly-phant v. St. Louis Ore & Steel Co., 22 Fed. 179; Miltenberger v. Logansport, C. & S. W. R. Co., 106 U. S. 286, 1 Sup. Ct 140; Dow v. Memphis & L. R. Co., 20 Fed. 260; Blair v. St. Louis, H. & K. R. Co., 22 Fed'. 471.]</p>

In equity. The plaintiff [Elisha Atkins] in this suit, in behalf of himself and all other stockholders of the Little Rock and Fort Smith Railroad Company [against John G. Steacy, surviving partner of Peirce, Steacy & Yorston, and others,] prays that the defendant, Steacy, may be enjoined from proceeding further against the plaintiff and said railroad company, and all the stockholders thereof, in a suit which he, as surviving partner of the firm of Peirce, Steacy & Yorston,…

[In bankruptcy. A rule nisi was granted against certain creditors who held a judgment from the court of common pleas of Wyoming county, and who proceeded with the execution in defiance of an injunction. On final hearing. Rule absolute.]

<p>Case No. 607.</p> <p>[Cited in Re Squire, Case No. 13,269, and in Union Paper-Bag Mach. Co. v. Crane, Case No. 14,388.]</p>

At law. This was an action of assumpsit [by Samuel Atkinson, assignee in bankruptcy of David B. Taylor, against the Farmers’ Bank of Bucks County,] to recover a sum of money paid to the defendants by the sheriff of Bucks county, in Pennsylvania, on an execution by them against .David B. Taylor.

[In admiralty. Libel in rem by John H. Atkinson against the steamboats R. B. Hamilton and H. Logan for damages caused by collision. Heard on exception to the libel because of the misjoinder of defendants and of distinct causes of action.

[At law. Action by Richard Atkinson against Gurdon S. Hubbard & Co. for breach of a contract of sale.

[In bankruptcy. Motion to compel the as-signee in bankruptcy of the partnership of Atkinson & Kellogg to pay Patrick Rahilly, a creditor of the firm, a dividend which the assignee had refused to pay, because Rahilly was a debtor, by the schedules, to the,estate of one of the partners, for which debt Rahilly had been sued by the assignee before the dividend was declared.]

[In equity. Suit by Chalkley Atkinson and others against the Philadelphia & Trenton Railroad Company for an injunction to restrain the defendant from creating a bridge across the Neshaminy creek, on a proposed route of a railroad, the construction of which was authorized under an act of the general assembly of Pennsylvania.

Slander. Office judgment at the rules before last term. moved to set aside the office judgment on filing special pleas of justification to the first and third counts, and a demurrer to second count. The special justification was, that, at the time the defendant spoke the words, he stated that he had received his information from his slave. cited the following cases in support of the plea.

At law. This was an action of assumpsit [by Samuel Atkinson, assignee in bankruptcy of David B. Taylor, against Thomas Purdy] to recover a balance of purchase-money, received by the defendant, as sheriff of Bucks county, in Pennsylvania, for certain real estate sold by him, in execution, as the property of one David B. Taylor.

Exception was taken in the orphans’ court, by Mr. Semmes, for the legatees, and overruled by the judge, because, he says, the profits cannot be ascertained but by a comparison of the present value of the stock, with the value at the time of division; and because the orphans’ court, in practice, proceeds under the Maryland law, which requires an ap-praisement in all cases. contended that the orphans’ court had no jurisdiction to have an appraisement made, for the purpose…

In admiralty. The dispute, between the master and the mate, in this cause, was concerning the mate’s wages. Process, or a citation was issued against the master and owner. There were accounts of monies and articles of traffic and dealing between the captain and mate, but they were not considered within the jurisdiction of the admiralty, except so far as they were connected with the claim for wages.

[In admiralty. Libel in rein by the officers and men of the United States monitors Wee-bawken and Nahant and the United States steamer Oimmerone, as captors, against the ironclad ram Atlanta, a prize. Decree awarding one-half the prize money to the United States, and one-half to the libellants.]

In admiralty. This was a libel in rem by George Stotesburg, against the ship Atlantic, to recover wages, and also the expenses of libellant’s cure for injuries received during his service on board.

In admiralty. December term, 1827.—This was a vessel seized by the collector of the customs for the district of Passamaquoddy, for an alleged violation of the revenue and navigation laws.

<p>Case No. 622.</p> <p>Wharfage—Maritime Lien—State Law.</p> <p>1. The agent to whom a vessel is consigned and who does the business of the vessel, and to whom an account of the wharfage of the vessel during the time she was in his charge is presented before the departure of the vessel, is made liable for such wharfage by the statute of the state of New York. Laws 1873, p. 430, [2 Rev. Laws N. Y. 1813, c. 216, p. 430.)</p> <p>2. Such liability,- although created by statute, springs out of and is incident to a maritime transaction, is therefore maritime in its character and accordingly may be enforced in admiralty.</p>

<p>[In equity. Suits by the Atlantic Giant Powder Company against George A. Goodyear, and against George W. Townsend, to enjoin infringement of reissued letters patent No. 5,799 of patent No. 78,317. .Decrees for complainants.]</p>

<p>Case No. 624.</p> <p>Patents for Inventions—What Constitutes Infringement— Substitution of Ingredients— Same Beneficial Result.</p> <p>1. The principal feature in Nobel’s invention of dynamite was the absorption of liquid nitroglycerine by means of absorbent material, preferably infusorial earth, thus, among other results, rendering the explosive safer and more readily used: Belli, that the use of extremely minute scales of mica, which become coated with the liquid, is, in principle and effect, equally absorption, and although an improvement, is yet an infringement.</p> <p>[Cited in Atlantic Giant Powder Co. v. Rand, Case No. 626.]</p> <p>2. In a compound material, the substitution of an ingredient somewhat different, even if preferable, is nevertheless an infringement, if the same beneficial results are obtained by substantially the same means.</p> <p>[Cited in Atlantic Giant Powder Co. v. Rand,' Case No. 626.]</p> <p>[See note at end of case.]</p> <p>3. Reissued patent No. 5,799, granted to Alfred Nobel, March 17, 1874, for the combination of nitro-glycerine with infusorial earth, or. other equivalent absorbent substance, as a new explosive compound, held, valid.</p> <p>[Cited in Atlantic Giant Powder Co. v. Goodyear, Case No. 623; Same v. Rand, Id. 626.]</p> <p>[NOTE. Reissue No. 5,799, of patent No. 78,317, was granted May 26, 1868, and was construed, held valid, and held to have been infringed in the following cases: Atlantic Giant Powder Go. v. Parker, Case No. 625; Same v. Rand, Id. 626; Same v. California Yigorit Powder Co., 5 Fed. 197: Same v. Dittmar, Powder Co., 1 Fed. 328; Same v. Goodyear CaBe No. 623; Same v. California Yigorit Powder “Works, 98 U. S. 126. Reissue No. 5.798, of patent No. 50,617, was granted March 17, 1874, and was construed in Atlantic Giant Powder Co. v. Hulings, 21 Fed. 519. Reissue No. 5,800, of patent No. 50,617, was granted March 17, 1874, and was construed in Atlantic Giant Powder Co. v. California Yigorit Powder Works, 98 U. S. 126.]</p>

[In equity. Bill by the Atlantic Giant Powder Company against Andrew J. Parker and others for an injunction restraining the infringement of reissue No. 5,799 of patent No. 78,317.

[In equity. Bill by the Atlantic Giant Powder Company against Jasper R. Band and others for a preliminary injunction restraining the infringement of reissue No. 5,799, of patent No. 78,317. Injunction granted.]

[At law. Action of trespass by the Atlantic Insurance Company of New York against John Conard] the marshal of this district, for seizing certain teas imported into Philadelphia by Edward Thomson, in the ships Addison and Superior, under an execution at the suit of the United States against said Thomson; to which teas, the plaintiffs asserted a property in themselves, tinder an arrangement made between the secretary of the treasury and the plaintiffs, these teas were given up…

<p>[In bankruptcy. Heard on motion to set aside an adjudication in bankruptcy. Motion granted.]</p>

<p>Case No. 639.</p> <p>Marshal—Fees—Attachment.</p> <p>An officer of a corporation instituted proceedings in its name, to have it adjudged a bankrupt. The proceedings were afterwards set aside by the court, as not having been authorized by a majority of the corporators. The marshal, having served notices, as messenger, under a warrant on adjudication, applied to the court to enforce, by an order and an attachment against such officer, the payment of the fees for the marshal’s services: Held, that he was not entitled to such remedy, but must proceed by action.</p> <p>[Cited in Mallory Manuf’g Co. v. Fox, 20 Fed. 410.] -</p> <p>[See The Blanche Page, Case No. 1,524. Contra, as to the payment of fees to the clerk of court. Lee v. Patterson, Id. 8,198.]</p> <p>[See note at end of easej</p> <p>[NOTE. Rev. St. § 725, limits the power of federal courts to punish for contempt to cases involving the “misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice; * * * and the disobedience or resistance by any party * * * to any lawful writ, process, order, rule, decree or command of the said courts.” Section 990 provides that “no person shall be imprisoned for a debt in any state, on process issuing from a court of the United States,, where, by the laws of such state, imprisonment for debt, has been or shall be abolished.” In proceedings for contempt for violation of an injunction in a patent suit, the defendant was. ordered to pay the costs, master’s fee, and certain assessed profits by a certain day. He' failed to pay the master’s fees, and the profits, both of which sums were' to go to the plaintiff, and was committed to prison. After two weeks, the defendant was discharged upon his own recognizance, under the poor debtor law of Massachusetts, (the state in which the proceedings arose,) and the circuit court denied complainant’s petition for a recommitment. Hen-dryx v. Fitzpatrick, 19 Fed. 810. See, also, U. S. v. Sowles, 16 Fed. 536.)</p>

[In admiralty. Libel by the Atlantic & Pacific Guano Company against the ship the Robert Center, and Joseph H. Arnold, master, on charter party. Respondents claim demurrage. Referred to a commissioner.]

At law. This was an action of replevin [by the Atlantic & Pacific Railroad Company against Henry Cleino] to recover certain personal property of the plaintiff seized by the defendant as sheriff of Phelps county, for taxes assessed in 1868, against the South Pacific Railroad Company, upon lands which were then the property of that company, but are now the property of the plaintiff, another and distinct corporation.

In equity. Bill for an injunction, [by the Atlantic & Pacific Telegraph Company against the Chicago, Rock Island & Pacific Railroad Company,] setting forth that the defendant would not permit the entrance of complainant’s engineers and workmen upon its right of way, for the purpose of establishing thereon a telegraph line according to its charter, and asking that defendant, its agents, etc., might be restrained from interfering with the construction of such line. [Bill…

This was an action brought by the insurers of the cargo of the canal boat A. E. Hurd, to recover of the steamboat “Atlas,” [In admiralty.

[On appeal from the district court of the United States for the eastern district of New York.] [In admiralty.

In equity. This was a creditor’s bill. The leading facts in the case were these: In 1876, and for a considerable time prior thereto, the F. B. Gardner Company was a corporation organized under a law of Wisconsin, owning a large quantity..of real estate and personal property, and was engaged in the manufacture of lumber, at Pensaukee, in Wisconsin.

At law. On motion to remand cause to the state court. The petition,- which was at law, was filed in the state court November 25, 1875. At the August (1876) term of the state court, the defendants appeared and moved for a more specific statement of the cause of action. The motion was sustained, and the case continued.

<p>Case No. 637.</p> <p>Salvage—Derelict—Principles upon Which Salvage is Allowed.</p> <p>1. Any vessel is not derelict until abandoned by the master, without an intention of returning and resuming the possession.</p> <p>2. Principles on which salvage is allowed. Twelve hundred • dollars given under the circumstances of this case.</p>

In equity. Julinah P. Atwater was the owner in June, 1875, of notes and mortgages of the value of $3,100, which she placed in the hands of “Hadley’s Law and Collection Agency” for collection; R. S. Hadley assuming to act for the same. On the death of one Seely, a brother-in-law, she claimed to own with her brothers and sisters an interest in the farm and farm property previously occupied by the deceased.

In equity. Bill filed [by James S. and Thomas B. Atterbury] against respondent [Joseph G. Gill, administrator of Andrew J. Beatty, deceased,] for infringement of patent, [No. 39,027,] which was on an improved jelly glass. Respondent answered. Testimony was taken and a hearing had. Complainant had a decree establishing the validity of the patent and also the fact of infringement by defendants. There was a reference to commissioners to take an account of profits and damages.

In equity. The bill in this case was filed by the plaintiff [Joseph F. Atwill] against Edmund Ferrett, Timothy S. Arthur and Elijah B. Galusha, copartners in Philadelphia and New York, under the name of Fer-rett & Go.

<p>In bankruptcy.</p>

At law. Special assumpsit, together with the common counts for goods sold and delivered, and for money had and received.

<p>Case No. 642.</p> <p>Partnership—Ik comiso Partner—Liability for Old Debts.</p> <p>1. A purchase of goods made by two individuals, who take a third partner. An action against the three cannot be maintained by the seller of the goods, who had no knowledge of the contract.</p> <p>[See Edmondson v. Barrell, Case No. 4,284.]</p> <p>2. There was no implied promise by the third partner, on which an action can be sustained.</p>

[In bankruptcy. On motion by August and others, bankrupts, a composition with their creditors having been confirmed, that it be referred to the clerk of the court to ascertain the amount due from the assignee to the bankrupts. Order referring the matter to the register.]

[In admiralty. Libel against the brig Augusta, and James Terwilliger and Walter Moffet, her owners, by D. McLeod and. 14 others, employes of John Rutter, for work, done in repairing the brig. Held insufficient, because an allegation that John Rutter was-authorized to make the repairs was lacking. Heard on the amended libel against the vessel alone. Decree for libellants.]

[In admiralty. Libel by John P. Smith against the brig Augusta and cargo for pilot services in the nature of salvage services. Decree for libellant. [The brig and cargo, valued at about $12,-000, during very stormy and violent weather, got in among the Washerwoman shoals, and came to anchor; and libellant, in his sloop Reform, under circumstances of considerable danger to himself and sloop, piloted her to the port Key West.]

<p>Case No. 648.</p> <p>Bankruptcy—Foreclosure bt Mortgagee in State Court—Ratification.</p> <p>[A mortgagee cannot proceed in a state court to foreclose a mortgage executed by a bankrupt, except by consent of the bankruptcy court; but the bankruptcy court may approve and ratify such unauthorized proceeding, and where the. assignee voluntarily appeared in the state court, had his lien adjudicated, permitted the property to be several times appraised and offered for sale, and made no objections to the proceedings for more than two years, and it did not appear that the estate would be injured by the foreclosure, the assignee is not entitled to an injunction.]</p>

[In equity. Bill by Cornelius Aultman against Henry C. Holley and Edwin H. Fittz] on reissues Nos. 723, 724, 726, and 2,608, of the patent originally granted Philo Sylla and Augustus Adams, September 20, 1853, [and numbered 10,038.] On May 17, 1859, the original patent was reissued to C. Aultman & Co., assignees, in six divisions, Nos. 721, 722, 723, 724, 725, and 726.

At law. This was a writ of error to the district court for Minnesota. The plaintiffs were manufacturers of threshing and reaping machines. They had employed the defendant as their agent to sell their machines. Under their instructions, he had sold certain of them partly on credit, taking, to secure the deferred payments, mortgages on the machines sold.

[In admiralty. Libel by John Aumach and others against the schooner Queen of the South for damages caused by collision. Decree for libelants.] The libelants were the owners of the schooner J. E. Clayton, which was injured by a collision with the Queen of the South in the night of Nov. 26, 1856, off the lower end of the Cedars, on the New Jersey coast. The libel was filed March 5, 1857, and the answer Nov. 30, 1860.

<p>[In admiralty. Libel by the United States against the ship Aurora for condemnation as prize of war. Judgment of condemnation.]</p>

[At law. Action of assumpsit by David Austen, William S. Wilmerding, and David Austen, Jr., against Henry Miller, on a certificate of deposit Verdict and judgment for plaintiffs. Affirmed by the supreme court in Miller v. Austen, 13 How. (54 U. S.) 218.]

[In bankruptcy. Petition by the People’s National Bank of Jackson, as a general creditor of the firm of Austin, Tomlinson & Webster,] for leave to intervene and contest the petition of a creditor of the firm for an adjudication in bankruptcy. Petition granted.

<p>[In admiralty. Libel in rem for damages caused by a collision. Decree apportioning the damages between the parties, with costs to the libellants.]</p>

[In bankruptcy. Petition by J. E. Austin against H. E. O’Reilly, assignee of Steele & Co., to have paid to him, as a preference, a claim alleged to be due for the rent of a plantation leased by Austin to Steele & Co. for the year 1871. Petition refused. On petition of review, the circuit court reversed this decree, in Austin v. O’Reilly, Case No. 665.]

[Petition of review to revise an order of the district court of the United States for the southern district of Mississippi, sitting in bankruptcy. [In bankruptcy. Petition by J. E. Austin against H. E. O’Reilly, assignee of Steele & Co., to have paid to him, as a preference, a claim alleged to be due for the rent of a plantation leased by Austin to Steele & Co. for the year 1871. The petition was refused by the district court in Austin v. O’Reilly, Case No. 664.

At law. This was an action to recover from the collector of customs moneys alleged to have been illegally exacted for duties on a quantity of hemp imported from Manilla. It appeared that a quantity of bales were put up in Manilla, each containing two piculs, and that the picul is a Manilla weight of 140 pounds.

<p>[In admiralty. Libel in rem by Michael De Lory against the Australia for wages. Decree for libellant.)</p>

<p>[In admiralty. Libel by J. W. Auther and others against the steamboat Atlantic. Dismissed.]</p>

At law. Attachment upon a judgment under Act Md. 1795, c. 56. The attachment was laid In the hands of Lewis Edwards, agent for payment of the salaries of the officers in the department of war, and in the hands of Thomas Tudor Tucker, treasurer of the United States. The defendant, Nathaniel Cutting, was a clerk in the war department at a salary of $1,600 per annum payable quarter-yearly on the 1st of January, April, July, and October.

<p>Case No. 671.</p> <p>Office and Officer — Marshal’s Commissions— Clerk’s Pees— Interlocutory Sales.</p> <p>1. The marshal is entitled to his full commissions, according to the act of 1799, e. 125, [1 Stat. G24,] upon all interlocutory sales of prize property. The act óf 27th Jan., 1813, c. 155. [2 Stat. 792,] applies only to sales after final condemnation.</p> <p>2. The clerk is entitled to commissions upon proceeds of prize property sold by interlocutory order, and paid into court by the marshal.</p> <p>[Cited in Leech v. Kay, 4 Fed. 73.]</p> <p>3. It is the duty of the marshal, upon all interlocutory sales to bring the proceeds into court, with a regular account of the sales.</p>

<p>Case No. 672.</p> <p>Prize— Doubtful Character of Vessel — Condemnation after a Year and a Day — Rb-HEARIN0 AT SUBSEQUENT TERM.</p> <p>1. If, upon the ship’s papers, it be doubtful, whether the property captured as prize belong to an enemy, it is not usual to proceed immediately to condemnation, although no claim be interposed. But if, in such case, no claim be interposed within a year and a day, condemnation is of course to the captors.</p> <p>[See note at end of case.]</p> <p>2. The circuit court cannot rehear a cause, or admit a claim, at a term subsequent to that, in which the cause was finally decided (a).</p> <p>[Cited in Doggett v. Emerson, Case No. 3,-961; Bank of United States v. Moss, 6 How, (17 U. S.) 38; The Illinois, Case No. 7.003.]</p> <p>[See The New England, Case No. 10,151.)</p> <p>NOTE, [from original report.] The origin and various modifications of this prescription of a year and day are explained with great copiousness and learning by Heineccius in his essay “De praeseriptione annali juris Lubecensis a .jure communi diversa.” Opera Minora, Syll. I. Exerc. 26. After remarking, that in the codes of all the principal German nations, the day is found superadded, tamquam auctarium quod-dam, to the year; he proceeds to say (section 8) that the Germans of the middle age gave the name of “day” to that legitimate delay, which was indulged to every one before making his appearance in court; and as it was the custom for citations to command an appearance on the fourteenth day, and the party was to be thrice cited before he incurred the sentence of contumacy, this, including the three days assigned for appearance, gave six weeks and three days, which period was denoted by one word “day.” Thus, if we may believe Heineccius, the “year and day” (annus et dies) originally signified a much longer period, than it is now thought to comprehend. He adds, however, that in the laws of Lubec, which he was examining, the word “day" means not six weeks and three days, but twenty-four hours only, and accordingly the prescription, which in Saxony extended to four hundred and ten days, was in Lubec confined to three hundred and sixty-six. From the same writer (section 17) it appears, that by this law the property both of real and personal things was lost, if not asserted within a year and a day. In this respect, it differs from the civil law, which allows a much longer time for immovable, than movable property. By the law of Lubec the prescription did not begin to run against absent persons, until they had knowledge of the event. But the civil law, in respect to movable things, granted no indulgence to the absent. (Section 18.) According to the French Encyclopedia (Jurisprudence —An et Jour) the day was added to the year, to avoid the difficulty of deciding whether the last day should or should not be included in the term. Much learning upon this subject, and an enumeration of several examples from the common law, will be found in Spelman’s Glossary,</p>

At law. This proceeding was commenced by writ of attachment which was served on Sarah A. Doane, as garnishee.

<p>In equity Motion for a preliminary injunction.</p>

<p>Case No. 675.</p> <p>Bankruptcy—What Constitutes — Fkauduuent Convex ances.</p> <p>[The fact that a debtor, after judgment against him in a state court, fraudulently conveyed all his real property, of a value greater than the debt, to his sons, is not a sufficient cause of bankruptcy as to the judgment credit- or, whose remedy is to have the conveyance set aside in a court of equity.]</p> <p>[Distinguished in. Re Stansell, Case No. 13,-293. Disapproved • in Re Sheehan, Id. 12,-' 737. Cited in Re Wells, .Id. 17,388.]</p> <p>[In bankruptcy. Petition by Avery against Nicholas Johann, based on a judgment in a state court and a fraudulent conveyance to avoid its execution. Dismissed without prejudice to proceedings on the judgment.]</p>

[Cited in Phelps v. Yates, Case No. 11,082.] [At law. Action by Noyes L. Avery against the town of Springport on coupons for the payment of interest on municipal bonds. Heard on defendant’s motion for a new trial. New trial ordered.]

[In admiralty. Libel by John W. Avery and W. Hall Johnson, executors of Josiah Johnson, deceased, John Carrol, and others, against the schooner Wanata, George Spar-vow and others, claimants, for damages growing out of a collision. Decree for libel-ants.

<p>Case No. 678.</p> <p>Collision at Pier—Ice—Mooring—Costs.</p> <p>1. A bark and a barge were both moored alongside a pier. The bark’s long-boat was hanging under her counter, close down to the water, from lines run from the stern, there being no davits. A floe of ice came into the slip, and parted the barge’s lines, and drove her against the long-boat, and crushed it: Held, That the barge was in fault, in not being properly moored;</p> <p>2. That the bark was in fault, in reference to the position of the boat;</p> <p>3. That the damages must be divided;</p> <p>4. That costs would not be allowed for depositions which were illegible.</p> <p>[Cited in The Mary Patten, Case No. 9,223.]</p>

[At law. Trespass on the case by John Avil against the Alexandria Water Company.

In admiralty. Collision in the Welland canal between the schooner Medbury and the propeller Avon. The claimant interposed two special pleas to the libel. (1) That the Avon was a British vessel, owned and registered in Ontario, and at the time of the collision bound from one British port to another—that the Welland canal is an artificial navigable water connecting Lakes Erie and Ontario, exclusively British property, and within British territory.

In bankruptcy. This was a petition by the assignee of the estate of Samuel Thurston, a voluntary petitioner in bankruptcy, who was declared a bankrupt in his private capacity and also as partner in the late firm of Thurston & Brastow, April 19, 1842.

<p>[On appeal from the district court of the United States for the district of Massachusetts.]</p> <p>In admiralty. Libel [by James S. Ayer against the steamer Glaucus, the Metropolitan Steamship Company, claimants] in a cause of collision. Damages were claimed in this case by the libellants, as the owners of the schooner Electric Flash, on account of a collision which occurred between the schooner and the steam-propeller Glaucus, at ten o’clock in the evening of Feb. 1, 1808. in Long Island sound, nearly opposite to New Haven, by which the schooner, with a full cargo on board, was run down and sunk, and became a total loss. Just before the collision took place, the schooner was close hauled on the port tack, beating up the sound, on a voyage from Newfoundland to the port of New York, and when she descried the steamer she was heading north-west by west, and, having a whole sail breeze from the west-south-west, she was making five and a half knots an hour. Her cargo consisted of frozen herring. The owners claimed damages for the loss of the cargo as well as for the loss of the schooner, and also for the loss of her provisions, nautical instruments, and charts. Bound down the sound, the Glau-cus, a steam-propeller of eighteen hundred and forty-eight tons, new measurement, was on a voyage from New York to Boston, and she was heading east by north, and was making eleven knots. These facts were undisputed. It also appeared that the 'night was clear, and that the moon was shining and unobscured by clouds. [Decree for libel-lants. Claimants appeal.</p>

At law. This was an action brought by [Samuel Ayer] the surveyor of Eastport, appointed under the act of the 7th of May, 1822, c. 107, [3 Stat. 693,] against [Stephen Thacher] the collector of the district of Pas-samaquoddy, for fees accruing by virtue of his office, and received by the collector.

In bankruptcy. Motion by the assignee to expunge the proof of debt filed by A. Pruts-man and Charles H. Stowers as guarantors upon two notes of the bankrupt payable to one G. H. Gile, amounting to 52,049. The bankrupt and one Fallís being indebted to Prutsman & Stowers, and they owing Gile, the bankrupt, with Fallis, made notes payable to Gile for the amount of the debt duo to Prutsman & Stowers, who then guaranteed them and delivered them to Gile.

<p>In equity. This was a bill in equity in which the complainant alleged that he was the first and original inventor of an improved process for changing, curing, or treating caoutchouc, and also of an improved product from caoutchouc, which product was the result of the said process. The two inventions were embraced in separate patents, each bearing the same date, to wit, May 10, 1864. The prayer of the bill of complaint was, that two certain letters-patent granted to the respondent might be adjudged and decreed to be void throughout the United States, and for an injunction and for an account. The invention described in the first patent of the complainant was a new process by which caoutchouc and its compounds were changed or cured, so that they were unaffected by changes of temperature, by contact with fatty and acid substances, and by exposure to the atmosphere, and so that their strength and elasticity were increased. The change produced- on caoutchouc was similar to that effected, by heat in the presence of sulphur, known as vulcanization, except that there was no sulphur left in the rubber, nor were there any other agents left therein tending to its injury or destruction; and except also, that the change was more permanent and uniform in its character. The patentee stated that the process was essentially “a cold one,” which could be successfully practiced in any degree of natural temperature, and might be described as consisting in bringing the caoutchouc into contact for a suitable time, with a recently discovered fluid solvent thereof, known in commerce as “carbon spirits,” when the fluid was combined with chloride of sulphur in the proportion of about one measure of the chloride of sulphur to fifty of the carbon' spirits. In the other patent, the specification described the product or article of manufacture as chiefly composed of caoutchouc, and combined with carbon spirits and chloride of sulphur. It was charged upon the respondent that he obtained and held two certain patents, which covered the same inventions as those secured to the complainant in the patents, upon which the suit was founded. Of the patents of the respondent, one was dated December 20, 1864, and entitled “an improvement in treating caout-chouc,” the other, March 10, 1863, and was-upon an improved caoutchouc or india-rub-ber. It was alleged in the bill of complaint that the patents of the respondent were an interference with the patents of the complainant, and that the respondent refused to-acknowledge the rights of complainant, and was using and practicing the inventions in violation of complainant’s rights. It was admitted that the patents of the two parties were upon the same inventions. Several defences were set up in the answer, of which the following are all that require recapitulation:—</p> <p>First, that neither party was the original and first inventor of the improvements, but that both were old and belonged to the public. To prove this, an English patent granted to one Alexander Parker was introduced in evidence.</p> <p>Second, inasmuch as the complainant’s patents were issued only a short time before the filing of the bill of complaint, the court ought not to order an injunction, or enter any decree affirming the validity of the patents, until the same had been judicially established; and to that end the respondent asked that proper issues might be framed, and the cause sent to a jury.</p> <p>Third, that the defendant not only did not use reasonable diligence in completing the alleged discovery, but that he secreted and concealed whatever he had accomplished, for his own benefit, and for such length of time that he had no superior equity over the respondent, and therefore that the court should leave the parties to their legal rights.</p> <p>The more important portions of the evidence applicable to the first defence may be gathered from the opinion of the court, when considering the question of originality, and the facts upon which the third defence was based appear in the discussion, by the court, of that point.</p>

<p>Case No. 688.</p> <p>Demurrage—Lay Days—Arrival op Vessel.</p> <p>Under the usual bill of lading, the lay days do not begin to run until the vessel has arrived at her place of discharge, and is ready to be unloaded.</p> <p>[Cited in Gronstadt v. Witthoff, 15 Fed. 268; Fish v. One Hundred and Fifty Tons Brown Stone, 20 Fed. 202; The Henry Sutton, 26 Fed. 926; Manson v. New York, N. H. & H. R. Co., 31 Fed. 299.]</p>

[At law. Action by John B. Ayres against the Western Railroad Corporation for the value of goods destroyed by fire while stored in defendant’s warehouse. Judgment for plaintiff.]

William Lewis, executor of Fuller, on the 20th of March 1800, revived a judgment by scire facias, which had been obtained by Fuller. A fieri facias issued, returnable to December 1800; an alias fieri facias, returnable to December 1801, on which proceedings were stayed by order of Lewis. A plur. fieri facias returnable to March 1802, on which proceedings were likewise stayed.

<p>Case No. 691.</p> <p>BAACK, (MANUFACTURERS’ NAT. BANK v.) See Case No. 9,052.</p> <p>BABBAGE, (STRATTON v.) See Case No. 13,527.</p>

<p>Case No. 692.</p> <p>Seamen—Wages—Forfeiture—Going on Shore —Discharge.</p> <p>1. A British seaman does not forfeit his wages, under Act 2 Geo. II., merely by coming on shore to demand legally payment of his wages; but this must be done within forty eight hours after he leaves his ship.</p> <p>2. Words which might imply a discharge of the chief mate do not amount to a discharge when spoken by the captain in anger and when the captain on the following day orders the mate to go on board to his duty.</p>

At law. This is a writ of error to United States district court for the western district of Missouri. It appears from the record in this case that the plaintiff is assignee of Bowman, also of Miller, and of Miller & Co.; the copartnership being composed of Bowman and Miller. On the 9th of March, 1868, Bowman was adjudged bankrupt, and thereafter Yose was duly appointed assignee of said Bowman.

[In error to the district court of the United States for the western district of Missouri.] [At law. Action in trover by Babbitt, as-signee in bankruptcy of Mendelson, against Walbrun & Co., to recover the value of property alleged to have been fraudulently sold by the bankrupt. The district court gave judgment for plaintiff. (Opinion nowhere reported, and not now accessible.) Defendant brings error. Reversed.

[In error to the district court of the United States for the western district of Missouri. [At law. Action of trover under the bankrupt act of March 2, 1807, (14 Stat. 517, c. 176,) by Babbitt, assignee in bankruptcy of Mendelson, agaiust AValbrun & Co., to recover property alleged to have been fraudulently sold.

<p>[In bankrupted'. In the matter of Samuel H. Babcock, a bankrupt. Petition by Henry Winsor, assignee, that Hugh R. Kendall, a creditor, for whom the bankrupt was surety on a bill of exchange, be ordered to proceed in a suit against the debtor under said bill, and apply the proceeds to the satisfaction thereof. Ordered that the creditor proceed with the suit, or authorize the same to be carried on by the assignee.]</p> <p>This was a case in bankruptcy adjourned into the circuit court from the district court, the judge of the district court being interested in the case. The petition on which the case came before the court was as follows: —“Henry Winsor of Boston, in said district, assignee of said Babcock, respectfully represents, that Hugh R. Kendall of said Boston has filed a proof of debt against the estate of said Babcock, in and by which the said Kendall states, that the said Babcock, at and before the date of the proceedings in bankruptcy in his case, was, and still is justly and truly indebted unto said Kendall in the sum of five thousand five hundred seventy-four dollars and fourteen cents, with interest thereon. First upon a certain bill of exchange, dated at Dudley on the thirteenth day of October, 1841, drawn by one Theodore Leonard, agent, upon the said Samuel H. Babcock, and by him accepted, for the sum of five thousand four hundred ninety-nine dollars and seventy-seven cents, payable in eight months from date, to the order of the said Theodore Leonard, agent, and endorsed and delivered to said Kendall for lawful value, which said bill the said Kendall avers, on due presentment thereof at maturity, was dishonored by the said Babcock, whereof the said drawer had due notice. Second, in the sum of seventy-four dollars thirty-seven cents, costs of suit, accrued in an action, brought upon said bill of exchange by said Kendall in the court of common pleas, for the county of Suffolk, in which action property of the said bankrupt was attached. And the said Kendall claims said costs in full. And ycur petitioner further shows that the said Theodore Leonard was agent of the Dudley Manufacturing Company, a corporation established by law in the commonwealth of Massachusetts, and that, as such agent, and for and in behalf of said corporation, drew said draft: that said corporation was, at the time of the drawing of said draft, and still is, indebted unto the said Samuel H. Babcock: that said Babcock accepted said draft for the accommodation and benefit of said corporation, and that, as between said Babcock and said corporation, the said corporation were bound to take up and pay said draft and save the said Babcock harmless therefrom, and that said Babcock was merely surety for said corporation for the payment thereof; and your petitioner further shows, that said Kendall commenced a suit against the said Dudley Manufacturing Company on said bill of exchange, and caused the property of said corporation to be attached therein, in which the writ was made returnable to the court of common pleas, at the July Term, A. D. 1842, holden at Boston within and for the county of Suffolk. That the said suit is still pending, and the said Kendall prays that he may have judgment in said suit, and take out execution on such judgment, and cause the property of said corporation to be levied upon or sold in satisfaction of said judgment; that your petitioner, • on the twenty-fifth day of August last, sent a written notice to the said Kendall, that he would be required to obtain all that can be •realized from the said Dudley Manufacturing Company or from said security. And your petitioner further avers, That said Kendall well knew at the time he received the said bill of exchange, that the same was accepted by said Babcock for the accommodation of the said Dudley Manufacturing Company. And your petitioner further represents, that he is advised that by the rules and courso of proceedings in a court of equity, or cotut sitting in bankruptcy, a party claiming to be a creditor of a surety, who holds security from the principal debtor, is bound to apply such security as far as the same will go to the satisfaction of said debt, and that if the creditor relinquishes such security he releases the surety to the extent of the security so relinquished. Wherefore your petitioner prays that the said Kendall be ordered by this honorable court to proceed in said suit and to levy upon said property of said corporation so attached, or to otherwise dispose of the same according to law, and apply the same or the proceeds thereof in satisfaction of said bill of exchange and costs, and that he be not allowed any dividend on the estate of said Babcock until he has first applied said security as aforesaid in extinguishment and satisfaction of said claims.”</p> <p>The answer was as follows:—"The respondent in answer to the said petition says, that he admits that he has filed a proof of debt against the estate of said Babcock as alleged in the said complainant’s bill of complaint. The respondent admits said draft was drawn as set forth in the petition, but doth not admit that the same was accepted by said Bab-cock for the accommodation of the said company, and requires the complainant to prove that fact if material, and avers, that he the said respondent had no knowledge of said fact, if it existed. And this respondent admits, that he did commence a suit against said company upon said draft, as set forth in the said petition, and avers that on the same day he. also commenced another suit against the said Babcock, as acceptor of said bill. And the said respondent admits, that on said writ against the said company, he attached all the said company’s interest in certain property real and personal, which was subject to other prior attachments, and that all the personal property so attached has been absorbed by the prior attachments thereon; and that a great part of the real estate attached has also been taken on other attachments, and what is now holden by the said Kendall upon the said attachment is the remnant, which has been left of the said estate, after satisfying the said prior attachments, and of the value of said remnant, and also of the title of said company thereto this respondent is ignorant. And this respondent prays this honorable court that the said petition may be dismissed, and that he may be allowed his costs and counsel fees in this behalf sustained.” It was further agreed that Babcock was an accommodation acceptor of the bill stated in the petition; and that that fact was unknown to Kendall, the creditor, when he took the bill.</p>

<p>[In bankruptcy. In the matter of Samuel H. Babcock, a bankrupt. The assignee excepts to the commissioner’s report as to counsel fees and costs.]</p> <p>In this case, the assignee paid in part, and proposes to pay in full to Charles G. Loring and William Gray, Esq., $396.09 for professional services, which sum, being charged in his account, was objected to by the creditors when the account was presented for settlement. The court therefore referred the matter to George S. Hillard, as commissioner, to examine and report thereon. His report, made at this term, constitutes a part of the case. It recommends, as reasonable and just, the allowance of only one tenth the whole bill of costs against the effects of Babcock. This is placed on the ground, that no express agreement is satisfactorily proved to have been made by the assignee to pay more, and that the interest ol the bankrupt in the matter in controversy where the costs arose, was only one tenth. The assignee not acquiescing in this report, and the district judge being interested as a creditor in Babcock’s estate, the case came before the circuit judge for hearing and decision at this term. [The claim as made by the assignee was allowed.]</p>

[In equity. Creditor’s bill by Babcock & Co. against Charles V. Millard, Isaac N. Hathaway, John W. May, Alonzo Hathaway, and Sylvester R. Hathaway, based, upon a judgment in this court, against said1 Millard and Isaac Hathaway. Heard on plea. to the jurisdiction and demurrers.

<p>Case No. 700.</p> <p>Pahol Evidence—Equity — Rescission of Land Patent—Laches.</p> <p>1.In 1845, O. P., of Steuben county, New York, put money into the hands of his son, O. P., of Dodge county, Wisconsin, to locate for him a tract of government land. The son applied the money to the purpose, and a patent for the land was issued in 1848 to “O. P., of Dodge county, Wisconsin,” and delivered to him. He entered into possession of the land, and, in 1853, executed a mortgage on it. In 1866, O. P., the father, gave a warranty deed of the land to B., who, by direction of the father, paid the purchase money to the son. The son gave possession of the land to B. After-wards, a foreclosure suit was brought on the mortgage, to which suit B. was made a party. He defended it on the ground that the father, and not the son. owned the land when the mortgage was given, but was defeated in the suit and evicted. He then brought this suit against the father, to recover for a breach of the covenant of warranty: Held, that parol evidence was inadmissible to show that the father was intended as the patentee in the patent, and not the son, for the reason that there was no ambiguity in the patent, in the description of the person named in it as the patentee.</p> <p>[See U. S. v. Thompson, Case No. 16,486.]</p> <p>[See note at end of case.]</p> <p>2. The patent, having been delivered to the son, who was the grantee named in it, was valid, until vacated for mistake.</p> <p>3. On the facts, the father, as against a bona fide holder of the mortgage, was guilty of laches, in taking no steps to have the mistake corrected.</p> <p>[NOTE. In the case of Barton v. Babcock, before the supreme court of Wisconsin, referred to in the foregoing opinion. Hr. Justice Cole, speaking for that court, said: “At the time of the entry, Oliver Pettibone, the son, resided in Dodge county, Wisconsin territory, and Oliver Pettibone, the father, resided at Hornellsville, Steuben county, New York. Considerable testimony was introduced on the trial, against the objection of the plaintiffs, tending to show that Oliver Pettibone, the father, entered the land, and owned it when the mortgage was executed. According to our view, this evidence was clearly inadmissible between these parties The record itself showed that the title to this property was in Oliver Pettibone, of Dodge county. Wisconsin. There was but one person of that name living in Dodge county, and so there was no ambiguity in the patent. There was only one person to whom the entire description in the patent applied. There is therefore nothing to be explained, and there is really no room for construction. * * * The court is not at liberty to reject so much of the description in the patent as relates to residence to substitute a person to whom it does not apply. * * * The patent shows that the title to the land in controversy was in the mortgagor when he executed the mortgage, and that is conclusive in this action.” Barton v. Babcock, 28 Wis. 192.]</p>

[At law. Action by Samuel Babcock against Stone, John B. Glover, and Manning on a bill of exchange. Heard on demurrer to replication. Demurrer overruled, and judgment for plaintiff.]

<p>[In admiralty. Libel by Daniel S. Babcock, master of the ship Samuel Robertson, against Isaiah F. Terry, the owner, for wages and advances. Decree for libellant.]</p> <p>The libellant was the master of the ship Samuel Robertson, of Fairhaven, on a voyage made several years since for whale and sea-elephant oil. The cause now came up on exceptions to the report of an assessor, and to settle certain points which had not been submitted to him. The chief object of the voyage was to procure the oil of the sea-elephant or walrus, which was a new branch of industry when this voyage began, and had only been carried on from New London, out of which port the libellant had sailed as mate on a similar voyage. The sea-elephant is taken on shore at Hurd’s island, an uninhabited place which lies very low in the southern latitudes, and has a boisterous and uncertain climate. The animals are killed and stripped on shore, and the blubber is dragged and rafted to the beach and put on board a tender, to be carried to the ship and tried into oil, there being no anchorage fit for large vessels within about three hundred miles. Captain Babcock lost his tender on the day of her arrival at the island, and sent home for another, and in the mean time left his second mate and some of the men to catch sea-elephants, and himself cruised for whales, but without much success. When the new tender came out, the chase of sea-elephants was pursued with diligence, and the ship received a cargo and returned with it to New Bedford. The libel-lant left the new tender with a sufficient crew at Hurd’s island, making a new contract with them conditioned to be void if the owners sent out the same or any other ship. They did send- out the Arab, under another master, and she made a voyage and brought home, among other things, fifteen hundred barrels of oil which had been made by the crew of the tender after the Samuel Robertson had sailed for home. The libel-lant demanded a lay of one-sixteenth in all the oil brought home by him, and in the fifteen hundred barrels made by the men whom he left on the island; five per cent on sales of slops; five per. cent on moneys advanced to the crew, and his whole disbursement account. The respondent disputed several items of the account; admitted a lay of one-seventeenth only in the oil brought home; and claimed a deduction from his lay for breach of the shipping articles by the libel-lant in bringing distilled spirits . on board the ship at sundry times, and for negligence and want of skill. The facts on which the decision of these points depended are stated in the opinion of the court</p>

<p>Case No. 704.</p> <p>Insurance—Insurable Interest—Trustee.</p> <p>[A trustee duly appointed by a court in place of the one named in a will, who has declined to serve, has an insurable interest in the property charged with the trust, and may take out a fire insurance policy thereon in his own name, provided he communicates the facts as to title to the insurer.]</p>

At law. Assumpsit [by Samuel H. Bab-cock against Human Weston] upon a contract executed in Boston. The defendant pleaded the pendency of a petition before the legislature of Rhode Island, by the defendant, to obtain the benefit of the insolvent act of that state, and an order of the legislature thereon, continuing the petition to their next session, and directing in the mean time a suspension of all process against the defendant. Demurrer and joinder.

[In equity. Suit by John Bachelder against William J. Moulton and others on reissued letters patent for an “improvement in sewing machines,” granted to complainant December 12, 1865. Complainant moves for provisional injunction. [The original patent was granted to same May 8, 1849. There were two intermediate reissues, and an extension. The claims of the reissue sued upon are as follows: “First.

[In bankruptcy. Suit by the assignee in bankruptcy of Bachman to recover the balance due on a stock-subscription. On demurrer to answer.

<p>[At law. Action by Joseph Bachman, trustee of Kattenhorn, against H. Everding and Edward Bebee, for money had and received. Heard on plaintiff’s motion to strike out defendant’s answer, and for judgment.</p>

<p>At law. This action was commenced on May 30, 1872, by the plaintiff as assignee in bankruptcy of the partnership and undivided estates of M. S. Hart, E. K. Packard and W. H. Moulthrop, doing business as M. S. Hart & Co., to recover a sum of money alleged to be due upon a promissory note made by the defendant on February 3, 1870, to said Hart or order, for $800 in gold coin, with interest at twelve per centum per annum.</p> <p>It appears from the complaint that the partnership of M. S. Hart & Co. was duly adjudged bankrupt in this court on February 6, 1872, and that on the nineteenth of the same month plaintiff was duly chosen as-signee of said estate.</p> <p>Defendant demurred to the complaint, and assigned for cause that “the court has not jurisdiction of the subject of the action.”</p>

In equity. On the 10th day of June, 1783, Thomas Jett, of the county of Westmoreland, Virginia, made a deed of gift of one half of all his lands in fee simple, and twenty-one slaves, which are mentioned: in the deed by name, and also a moiety of all his other personal property of every hind, -Whatsoever, to his only son, William Storke Jett, for his support and advancement in life.

<p>Case No. 711.</p> <p>Assaui.t and Battekt—Mate and Seaman.</p> <p>1. The mate of a vessel, thinking that one of the boys on board had stolen some money from him, accused him of theft, while he was seated at the breakfast table, with tue mate and two others. The boy retorted with an opprobrious epithet, and the mate struck him in the face, and he fell over in his chair against a partition. The boy filed a libel against the mate to recover damages for assault and battery: Held, that as the blow was not given in the course of discipline, and as the mate used opprobrious words first, the assault was without excuse.</p> <p>[See Benton v. Whitney, Case No. 1,335;</p> <p>Cushman v. Ryan. Id. 3,515; Morris v. - Cornell, Id. 9,829.]</p> <p>2. That, as the libellant was not shown to ] have suffered any permanent or serious in-; jury, the court would award him $20, and costs.'</p>

[Oh appeal from district court of the United States for the district of Michigan.] [In admiralty. Libel by Frederick W. Backus against the schooner Marengo on a contract of affreightment. Decree for libel-ant, (unreported.) Respondents appeal. Affirmed. A prior motion in the appellate court for a continuance was overruled in Backus v. The Marengo, Case No. 713.]

[In admiralty. Libel by Frederick W. Backus against the schooner Marengo on a contract of affreightment. Decree for li-belant, (unreported.) Respondents appealed, and now move for a continuance. Appeal subsequently heard on merits, and affirmed in Backus v. The Marengo, Case No. 712.]

[In bankruptcy. Petition by Schaeffer & Co. against the assignee in bankruptcy of H. Badenheim & Co. to have certain funds applied to the payment of a judgment obtained prior to the commencement of proceedings in bankruptcy.

At law. This was an action [by Samuel C. Bacon] against the defendant, [George Bancroft,] as collector of the port of Boston, to recover back the amount of duties, paid under protest, upon a quantity of gunny cloth, imported by the plaintiff, and by the collect- or charged with the duty on cotton bagging, tVerdict for plaintiff.] It was agreed, that gunny cloth was imported and used extensively for the purpose of covering cotton in bales, and as a substitute for the article…

<p>Case No. 717.</p> <p>Judgment—Res Judicata—Dismissal of Bill before Publication of Tkstimont.</p> <p>Where a cause in equity was set down for hearing, and before any of the testimony taken was published, the complainant moved to dismiss his bill, and, no objection being made thereto, the motion was granted, and the bill in equity dismissed without any hearing upon the merits. Held, that the record of the former suit and decree was no bar to the bill of complaint.</p> <p>[Cited in The American Diamond Rock Boring Co. v. Sheldon. Case No. 296; Evory v. Candee, Id. 4,583; Sutherland v. Straw, 2 Fed. 284: Stevens v. The Railroads, 4 Fed. 107; Kelly v. Town of Milan, 21 Fed. 863; Brush v. Condit, 20 Fed. 826; Keller v. Stolzenbach, Id. 48; Griswold v. Bragg, 48 Fed. 520; W. U. Tel. Co. v. American Bell Tel. Co., 50 Fed. 665.]</p>

<p>Case'No. 718.</p> <p>Equity — Laches — Knowledge op Fraud for Five Years—Pleading— Responsive Answer —Denial by Two Witnesses—Fraud.</p> <p>1. Where the answer is responsive to the bill of complaint, and positively denies the matter charged, and the denial has respect to a transaction within the knowledge of the respondent, the answer is evidence in his favor, ' and unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other facts and circumstances, which give to it greater weight than the answer, or are equivalent in weight to a second witness, it is conclusive, so that the court will neither make a decree or send the case to trial, but will dismiss the bill.</p> <p>[Cited in Hayward v. Eliot Nat. Bank, Case No. 6,273; Godden v. Kimmell, 99 U. S. 202.]</p> <p>[See Lenox v. Prout. 3 Wheat. (16 U. S.) 520; Union Bank of Georgetown v. Geary, 5 Pet. (30 U. S.) 99; Tobey v. Leonard, 2 Wall. (69 U. S.) 423; Voorhees v. Bone-steel, 16 Wall. (83 U. S.) 16.]</p> <p>2. Accusations charging that probate accounts which had been settled for a long time were fraudulent, must be specific, and must point out the items of account charged to be false; especially when, as in this case, it appears that all the parties implicated, some of whom had the best means of knowledge in regard to the transaction, were dead.</p> <p>[Cited in Pulliam v. Pulliam, 10 Fed. 55.]</p> <p>3. If express fraud be charged, the rule is that he who made it must prove it; so where license was granted by the supreme court of a state for the sale of real estate by administrators, and the complainant, in a bill of equity, prayed that the deeds of conveyance executed pursuant to the license granted, might be de-) dared null and void, nothing less than proof of fraud could possibly avail the complainant, as the court to whom the petition was addressed was bound to inquire whether debts were due and unpaid by the estate before they granted the license, and. in the absence of fraud, it must be presumed that the finding of the court was conclusive.</p> <p>4. In many cases courts of equity act upon the analogy of the limitations at law, as where a legal title would, in ejectment, be barred by twenty years’ adverse possession; but there is a defence peculiar to courts of equity, founded on lapse of time, where no statute of limitations governs the case.</p> <p>[Cited in Marsh v. Whitmore. Case No. 9,-122; Godden v. Kimmell, 99 U. S. 202; Pulliam v. Pulliam, 10 Fed. 55.]</p> <p>[See note at end of case.]</p> <p>5. In such cases courts of equity often act upon their own inherent doctrine of discouraging antiquated demands, by refusing to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights.</p> <p>[See note at end of case.]</p> <p>6. Where the bill of complaint set up that fraudulent acts had been committed more than thirty years previous to the bill of complaint, but the complainant averred that the same were unknown to him until five years previous to the same, without setting up that the fraudulent acts were in any manner concealed from •him, it was held, that a court of equity could not regard in such a case such general allegations of excuse.</p> <p>[See note at end of case.]</p> <p>7. If the complainant seeks to avoid the effect of lapse of time, on the ground of concealed fraud, he must set forth, with particularity, when and by what means the fraud was discovered, and the averments so made must be supported by the proofs.</p> <p>[See Wilcox v. Plummer, 4 Pet. (29 U. S.) 172; Moore v. Greene, 19 How. (60 TJ. S.) 69.]</p> <p>[See note at end of case.] .</p> <p>8. In the case of a stale claim, barred by lapse of time, by gross laches, and long unexplained acquiescence in the operation of an adverse right, courts of equity will often treat the lapse of a period less than the one specified in the statute of limitations as a presumptive bar to the claim.</p> <p>[Cited in Sullivan v. Portland & K. R. Co.,</p> <p>. Case No. 13,596.]</p> <p>[See note at end of case.] [NOTE. An appeal was taken from this decree to the supreme court by the complainants, and the -judgment was thereupon affirmed, the court, by Mr. Justice Grier, holding that:</p> <p>[“Courts of equity, in cases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern courts of law in like eases, and this ratner in obedience to the statutes than by analogy.</p> <p>[“In many other cases they act upon the analogy of the like limitation at law. But there is a defense peculiar to courts of equity founded on lapse of time and the staleness of the claim, where no statute of limitation governs the case. In such cases, courts of equity act upon their own inherent doctrine of discouraging,' for the peace of society, antiquated demands; refuse to interfere where there has been gross laches in prosecuting the claim or long acquiescence in the assertion of adverse rights. Long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance or impediment, caused by the fraud or concealment of' the parties in possession, which will appeal to the ■conscience of the chancellor.</p> <p>[“The party who makes such appeal should set forth in his bill specifically what were the impediments to an .earlier prosecution of his claim, how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in his bill; otherwise, the chancellor may justly refuse to consider his case, on his own showing, without inquiring whether there is a demurrer or formal plea of the statute of limitations contained in the answer. [“The bill in this case is entirely defective in all these respects. It is true there is a general allegation that the ‘fraudulent acts were unknown to complainant till within five years past,’ while the statement of his case shows clearly that he must have known, or could have known, if he had chosen to inquire, at any time in the last thirty years of his life, every fact alleged in his bill. That his mother was entitled to dower in the land if the sale was set aside was no impediment to his pursuit of his rights, while her death may have removed the only witness who was able to prove that his complaint of fraud was unfounded, and that it was by the consent and desire of the family that the property was kept in the family name by the only one who was able to advance the money to pay the debts of the deceased,—a fact fairly to be presumed from her silence and acquiescence for twenty-four years.” Badger v. Badger, 2 Wall. (69 U. S.) 87.</p> <p>[Also- see Marsh v. Whitmore, 21 Wall. (88 U. S.) 178; Twin-Lick Oil Co. v. Marbury, 91 TJ. S. 587; Hayward v. Eliot Nat. Bank, 96 U. S. 611: Godden v. Kimmell, 99 ü. S. 201; Wood v. Carpenter, 101 U. S. 135; Etting v. Marx, 4 Fed. 673; Livingston v. Ore Bed, Case No. 8.418. The decree of the supreme court was distinguished in James v. Atlantic. Delaine Go., Id. 7,177, and Forbes v. Overby, Id. 4,928a.]</p>

[In equity. Bill by Badische Anilin & Soda Fabrik against Alexander Cochrane and others for infringement of letters patent. Decree for complainant. Reversed by supreme court in Cochrane v. Badische Anilin & Soda Fabrik, 111 U. S. 293, 4 Sup. Ct. 455.]

<p>[In equity. Bill for injunction by the Badische Anilin & Soda Fabrik against Thomas K. Cummins. Temporary injunction granted, restraining further infringement of complainant’s patent No. 95,465. For adjudication on the same patent, but in another suit, see Badische Anilin & Soda Fabrik v. Cochrane, Case No. 719, reversed in 111 TJ. S. 293, 4 Sup. Ct. 457; Same v. Hamilton Manuf’g Co., Case No. 721; and Same v. Hig-gin, Id. 722.]</p>

<p>Case No. 721.</p> <p>Patents for Inventions—Foreign Patent—Expiration—Process and Product.</p> <p>1. The provision of the statute—Act 1870, § 25, [16 Stat. 19S]—providing that, in ease of a foreign patent, the United States patent shall expire at the same time with the foreign patent, is not retroactive in its operation, and does not apply to American patents granted before the law took effect, or to the reissues of such patents granted after the law took effect.</p> <p>[Cited in Goff v. Stafford, Case No. 5.504. Distinguished in De Florez v. Raynolds, 8 Fed. 444.]</p> <p>2. The right to reissue a patent in two divisions, one for the new process, and one for the new product, illustrated.</p> <p>[Cited in Badische Anilin & Soda Fabrik v.</p> <p>Cochrane, Case No. 719.]</p> <p>[See Tucker v. Burditt, Case No. 14,216; Bennett v. Fowler, 8 Wall. (75 U. S.)’ 445.]</p> <p>3. When a thing is produced new, in and of itself, it is patentable as a new manufacture.</p> <p>4. A patent for a new manufacture is infringed by the manufacture of the new product by any process whatever.</p> <p>5. Before the invention covered by complainants’ patent “alizarine” had been used as a generic term, applied to many different dye stuffs, and yellow and green alizarines were in the market. Chemically pure alizarine existed only in the books, and a body approximating to it only in the laboratory of the chemist. The claim of complainants’ reissued patent (division B) was for “artificial alizarine produced from anthracene or its derivatives by either of the . methods herein described, or by any other method which will produce a like result:" 'Held, under the circumstances of the case, that the reissue was not void for claiming alizarine, which was before well known, but that the invention patented was the new composition, which contained, combined with alizarine, other bodies of themselves effective agents before unknown,, and which existed for the first time when produced by the patentees.</p> <p>[6. Letters patent No. 95.465, issued October 5, 1869, to Graebe and Liebermann, are valid. J</p> <p>[Cited in Badische Anilin & Soda Fabrik v. Higgin, Case No. 722, and Cochrane v. Badische Anilin & Soda Fabrik, ill U. S-297, 4 Sup. Ct. 457.]</p> <p>[In equity. Bill by the Badische Anilin & Soda Fabrik against the Hamilton Manufacturing Company, for infringement of letters patent. Decree for complainant.]</p> <p>[For other suits involving the same patent, see Badische Anilin & Soda Fabrik v. Cochrane, Case No. 719; Cochrane v. Badische Anilin & Soda Fabrik, 111 U. S. 293, 4 Sup. Ct. 457; Badische Anilin & Soda Fabrik v. Cummins, Case No. 720; Same v. Higgins, Id. 722.]</p>

<p>Case No. 722.</p> <p>Patents fob Inventions—Reissue—Pbooess and Pkoduct.</p> <p>1. The reissued letters patent, division B, granted to Charles Graebe and Charles Lieber-mann, April 4th, 1871, for an improvement in dyes or coloring matters from anthracine, are valid.</p> <p>[Cited in Badische Anilin & Soda Fabrik v. Cochrane, Case No. 719; Cochrane v. Ba-disehe Anilin & Soda Fabrik, 111 U. S. 297, 4 Sup. Ct. 457.]</p> <p>2. The original patent claimed “the within described process for the production of alizarine, by first preparing bibromanthrakinon, or bichloranthrakinon, and then convertng those substances into alizarine, substantially as above set forth.” The reissue describes the same process, producing the same substance, and claims, “Artificial alizarine, produced from anthracine, or its derivatives, by either of the methods herein described, or by any other method which will produce a like result.” Tlie case was a proper one for a reissue.</p> <p>[Cited in Smith v. Merriam, 6 Fed. 718.]</p> <p>[For other suits involving the same patent, see Badische Anilin & Soda Fabrik v. Coch-rane. Case No. 719; Cochrane v. Badische, Anilin & Soda Fabrik, 111 U. S. 293, 4 Sup. Ct. 455; Badische Anilin & Soda Fabrik v. Cummins. Case No. 720; Same v. Hamilton Manuf’g Co., Id. 721.]</p>

[In admiralty. Libel by Herman Baetjer against Christian. Bors to recover damages for a failure to carry out an agreement to transfer a charter party. Interlocutory decree for libellant. Respondent excepted to the commissioner’s report.

<p>In bankruptcy.</p>

[At law. Action by Bagley against Yates and Prentiss. Judgment for plaintiff. Heard on plaintiff’s motion to attach Alexander H. Stowell, deputy marshal, for retaining certain moneys received on execution.

In bankruptcy. This was an opposition by the creditors of John Bailey (who had petitioned for a decree in bankruptcy, [under Act Aug. 19, 1841, 5 Stat. 440, c. 9] on the report of the commissioner, to whom the case had been referred, showing cause against the petitioner being declared a bankrupt.

<p>Case No. 727.</p> <p>Bankruptcy—Affidavit to Schedule — Powers of Notart.</p> <p>[Though Bev. St. § 5017, requires the schedule of a bankrupt to be verified by oath before a district judge, register, or commissioner, a verification before a notary is sufficient, under Act Aug. 15, 1876, (19 Stat. 200, c. B04,) empowering notaries to take affidavits in the same manner and with the same effect as commissioners.]</p>

[In the matter of Robert Bailey’s application for naturalization.- Section 21 of the act of July 17, 1862, (12 Stat. 597,) provides: “That any alien, of the age of twenty-one years and upwards, who has enlisted or shall enlist in the armies of the United States, either the regular or volunteer forces, and has been or shall be hereafter honorably discharged, may be admitted to become a citizen of the United States, upon his petition, without any previous declaration of his…

[In bankruptcy. Petition of J. M. & J. Lockhart and Paul Fourchy for review, asking that the decree of the district court confirming the composition made by the bankrupts G. M. Bailey and Pond with their creditors be set aside.

Letters upon the subject of the arrest in one district of a person accused of crime committed in another district.

<p>In equity. This is a bill by certain stockholders of the Atlantic and Pacific Railroad Company against that company, its directors, and the officers of the counties through which the road runs, to restrain the collection of taxes levied by state authority on the property of the company for the year 1873. The bill, in theory, is like that in Dodge v. Woolsey, 18 How. [59 ü. S.] 331. One ground on which an injunction is asked is that the property of the company is, by legislative contract, exempt from taxation for the year 1873. [Temporary injunction granted, with the reservation of a right to defendants to move to dissolve it on the first day of the next term, or as soon thereafter as counsel could be heard. Por opinion on previous motion for the allowance of a temporary injunction, see Parmley v. St. Louis, I. M. & S. R. Co., Case No. 10,767.]</p>

<p>Case No. 733.</p> <p>Bankruptcy—Homestead Exemption—“Head op a Family.”</p> <p>Tl. In 1873, the owner and occupant of a farm left it on account of his health, and went to reside with his brother in M., about 12 miles away, leaving his farm in charge of a family which he had engaged to come and live iii the house with him, and work the farm on a division of ihe crops, etc. In M., he did enough work about his brother’s mill to equal the value of his board. In 1876, he returned to the farm. While at M., he once voted, and there was some evidence that he spoke of M. as his home, and that during his stay there he was nominated as a candidate for justice of the peace, but he never authorized his name to be so used. Held, that his right to a homestead exemption under 1 Wag. St. Mo. pp. 603, 604, 697, was not abandoned by his residence at M.</p> <p>[2. A family engaged by the owner and occupant of a farm to live in the house with him, and work the farm on shares, but subject to his management and control, are tenants under a special arrangement, and not relatives or dependents of the owner, and do not form part of or constitute the owner’s family, within the meaning of the homestead exemption to heads of families, (1 Wag. St. Mo. pp. 603, 604, 697.1</p> <p>[3. C., a bankrupt, was a bachelor, and from 1853 lived on a farm with a sister, who furnished money for its purchase and improvement. The brother and sister furnished money and labor in unequal proportions. Another sister, an invalid, formed part of the household until her death, in 1861. In 1869, the surviving sister married. In 1872, after her husband’s death, she returned to the home of the bankrupt, and made it her home, having her furniture there; but, her health being poor, she visited much of the time in the east, and also with brothers in the neighborhood. In 1876, C. was declared a bankrupt, and afterwards the sister returned to the farm. She was in charge of the household and domestic affairs at the farm, and paid no board. Held, that she was part of the bankrupt’s family, and that he was entitled to an exemption as the “head of a family,” under the Missouri homestead exemption laws, (1 Wag. St. pp. 603. 604, 697,1 and’under the bankrupt act of March 2, 1867, (14 Stat. 517, c. 176.)]</p>

[In equity. Bill by Henry Bailey against James Moorman and the assignee in bankruptcy of Noah Crim. James Moorman, in a cross bill, prayed for protection as an innocent mortgagee. Heard on exceptions to master’s report.

<p>At law. Motion for new trial. This was an action of assumpsit [by Adam Bailey and others against John Z. Goodrich] brought against the defendant as collector of the port of Boston, to recover the duties paid on two importations of rice from Calcutta, by the plaintiffs, one in December, 1861, by the ship Dolphin, and one in March, 1862, by the ship Fleet wing.</p> <p>Both importations were invoiced by the plaintiffs as “first quality Patna table rice.” The plaintiffs entered the cargo of the Dolphin as “uncleaned rice,” and dutiable at one half a cent per pound. The appraisers reported it to be “cleaned rice,” and dutiable at one cent per pound, and duties were exacted accordingly. The importers protested against the levying of these duties, and appealed to the secretary of the treasury, who sustained che decision of the officers of the customs. In the case of the Fleetwing, the plaintiffs entered the cargo as rice, one cent per pound. The appraisers reported it as “Cleaned rice correct," and duties were accordingly assessed; and the plaintiff protested against the levying of this rate of duty. The court instructed the jury that the finding of the appraisers in the case of the Dolphin, that the importation was clean rice, and dutiable0 at one cent per pound, after appeal, and after confirmation of that finding by the secretary of the treasury, was conclusive as to the character of the importation, and that the, decision of the collector, based on that finding, after the same was confirmed on appeals by the secretary of the treasury, fixed the true rate of duty to which the importation was subject. They also instructed the jury in the case of the Fleetwing, that the plaintiff having entered the importation as rice, at one cent per pound, it became the duty of the collector, in the absence of any appeal to the secretary of the treasury, to assess the duties on that basis, and that the protest is not sufficient to recover back the duties on the ground that the plaintiffs were required by the collector to make such an entry. The court accordingly directed a verdict for the defendant, subject to the right in the plaintiffs to move for a new trial.</p> <p>The hearing was had before CLIFFORD, Circuit Justice, and ROWELL, District Judge.</p>

[In equity. Bill by John Bailey against the Hannibal & St. Joseph Railroad Company to restrain respondent from paying certain moneys as a dividend on its common stock. Bill dismissed. This decree was affirmed on appeal in 17 Wall. (84 U. S.) 96. See note at end of case.] The complainant is the owner of 800 shares of the preferred stock issued by the defendant.

<p>Case No. 737.</p> <p>. Bankruptcy—Conditional Sake — Mingling op Ass ets—Preference.</p> <p>Where a bankrupt made a conditional purchase of logs which were sawed at his mill, and, the conditions not being fulfilled, the seller, after insolvency of the bankrupt, took back a quantity of sawed lumber instead of his logs: Held, that while he had a right to take such share of the sawed lumber as was in proportion to his interest in the logs, the taking of the rest of the lumber by consent of the bankrupt after insolvency in settlement of his claim, was in effect to give him a preference, and rendered the transaction void.</p>

<p>Case No. 738.</p> <p>Town Bonds in Aid or Railroads—Issue without Authority—Rights op Coupon Holders.</p> <p>1. By a statute of New York, the county judge was authorized, on a petition by a specified number of tax-payers, to ascertain, by judicial inquiry, whether the majority of the taxpayers of a town, in number and in taxable property, desired the town to issue its bonds in aid of a railroad company, and, if he ascertained such to be the case, he was authorized to appoint three commissioners to execute and issue bonds in behalf of the town, and invest them in the stock or bonds of the company. On a petition and proofs, the county judge adjudged that the bonds should be issued by a town, and appointed commissioners to do so. Opposing tax-payers obtained a writ of certiorari for the review by the supreme court of the state of the decision of the county judge. After the writ had been issued, and the commissioners and the company had had notice of it, they executed the bonds and delivered them to the company. The supreme court reversed the judgment. The bonds had interest coupons, and B. subsequently brought suit against the town on some of the coupons. It did not appear how he acquired title to the coupons, or whether he ever owned the bonds to which the coupons belonged, although it appeared that he had the coupons in his possession before they fell due: Held, that he was not entitled to recover.</p> <p>2. The issue of the certiorari suspended the operation of the judgment, and the company acquired no title to the bonds, which they could enforce as against the town.</p> <p>[Cited in Stewart v. Lansing, Case No. 13,-432.]</p> <p>3. It appearing that the bonds were issued in fraud of the rights of the town, the burden was upon B. to show that he was a purchaser of the coupons in good faith and for value.</p> <p>[Cited in Tracey v. Town of Phelps, 22 Fed. 634.]</p> <p>4. But, certain of the bonds, with their coupons, having come into the hands of E., as a holder of them for value, before maturity, and then having passed to S., it was held, that S. was entitled to recover in a suit on some of such coupons, against the town.</p> <p>[Cited in Stewart v. Lansing. Case No. 13,-432; same case, on appeal, 104 U. S. 508.]</p> <p>[See Lvtle v. Lansing, 147 Ú. S. 59, 13 Sup. Ct. 254.]</p> <p>5. Various defences overruled, as against S., as a bona fide holder.</p> <p>6. The reversal of the judgment of the county judge could not invalidate the title of a bona fide purchaser.</p>

[On appeal from the district court of the United States for the middle district of Alabama. [In bankruptcy. Application by Loeb & Brother for an order compelling Bailey, as-signee of the bankrupts, Shulman. Frank-ferter & Co., to pay rent for certain premises occupied by the bankrupts. The district court granted the order in part. Heard on the assignee’s petition for a review and reversal of this decision. At chambers.

[In bankruptcy. Petition by Bailey, as-signee of Warner & Curtis, bankrupts, against T. W. Nichols, payee of promissory notes made by the bankrupts, and Hower & Co., indorsees. Prayer that the notes be canceled, except as to the interest of Hower & Co. Granted. Prayer that Hower & Co. be allowed to prove and receive dividends on only the amount of the notes.

At law. This is a common law action brought [by C. P. Bailey, receiver, against Andrew J. Sawyer] to enforce the individual 'liability of a stockholder in the First National Bank of Duluth, and to recover the amount of an assessment ordered by the •comptroller of the currency, to the extent of seventy-five per centum of the par value of the shares of the capital stock of said bank, under and by virtue of the act of congress in relation to national banks.

At law. This was an action [by Eli W. Bailey and others] against [Augustus Schell] the collector of the port of New York, to recover back an alleged excess of duty paid, under protest, on coral cameos, not set.

[In admiralty. Libel by Bailey and others against the steamship Sonora to recover damages for breach of contract with libel-ants as passengers.

<p>Case No. 749.</p> <p>Equity—Pleading—Statute or Frauds.</p> <p>1. Where a bill in equity charges acts of fraud, and sets up, among other things, an agreement by a defendant to execute a mortgage of real estate, and avers a failure and refusal to execute such mortgage, such defendant cannot, by plea, aver the invalidity of such agreement as a parol agreement and void under the statute of frauds, but will be required by answer to respond to the allegations of the bill.</p> <p>2. The court will require all the facts to be presented to enable it to decide whether the plea of the statute of frauds will be available.</p> <p>[Cited in McCloskey v. Barr, 38 Fed. 170.]</p>

<p>In equity. This was a bill in equity filed to restrain the defendants [Alexander Lincoln and others] from infringing letters patent for “improved roller for expressing water from clothes,” granted to John Al-lender, January 11, 1859. assigned to S. A. Bailey, S. S. Cook, and B. M. Cook, and reissued to them June 28, 1804; again reissued November 8, 1864, and again April 18, 1865, and assigned to complainants. [Decree for complainants. For other suits involving the same letters patent, see Bailey Washing Mach. Co. v. Young, Case No. 751; Bailey Wringing Mach. Co. v. Adams, Id. 752; and Eureka Clothes Wringing Mach. Co. v. Bailey W. & W. Mach. Co., 11 Wall. (78 U. S.) 488.]</p> <p>The claims of the original and the several reissues were as follows:</p> <p>Original patent:</p> <p>“I claim a roller I, consisting of a spirally coiled spring J, arranged on a shaft or roller made smallest in the middle (to allow the spring to yield,) covered with India rubber. or some flexible material, that will yield or bend readily, as the spring J yields to the cloth, clothes, or other article being squeezed by the rollers.”</p> <p>Reissue of June 28, 1864:</p> <p>“I. A roller so constructed as to yield more at its center than at or near its ends, in combination with a covering of vulcanized rubber of tubular form, as and for the purpose set forth.</p> <p>“II. Cog-wheels, in combination with elastic rollers, constructed and used substantially as set forth.”</p> <p>. Reissue of November 8, 1864:</p> <p>“I. A roller so constructed as to yield more at its center than at or near its ends, in ■combination with a covering of vulcanized rubber, of tubular form, as and for the purpose set forth.</p> <p>“II. Cog-wheels in combination with vulcanized rubber rollers, or any other elastic substance or compounds impervious to water.”</p> <p>Reissue of April 18, 1865:</p> <p>“I. A roller made of a spirally coiled spring, arranged on a shaft or roller made smaller at the center than at the ends, as and for the purposes specified.</p> <p>“II. A roller so constructed as to" yield more at its center than at or near its ends, covered with vulcanized rubber, or any other •compounds impervious to water, substantially as and for the purpose set forth.</p> <p>“in. Cog-wheels, in combination with rollers of vulcanized rubber, or any other elastic substance or compound impervious to water, for the purpose set forth.</p> <p>“IV. Rollers made of or covered with vul-eanized rubber, or any other elastic substance or compound impervious to water when used in combination with cog-wheels, and a spring ■or springs around the shaft or roller, for the purpose set forth.</p> <p>“V. Rollers for washing or wringing machines made of or covered with vulcanized rubber, or any other elastic substance or compound impervious to water when used in combination with adjusting spring or springs.</p> <p>“VI. Rollers for washing or wringing machines made of or covered with vulcanized rubber, or any other elastic substance or compound impervious to water when used in combination with adjustable spring or springs, and screw or screws to adjust the pressure to the springs and rollers.”</p>

<p>[In equity. Bill by the Bailey Washing Machine Company against John Young, James Young, and John E. Young. Heard on motion to strike defendants’ answer from the files.</p>

[In equity. Bill by the Bailey Wringing Machine Company against F. F. Adams and another for infringement of letters patent No. 22,539. Heard on motion for preliminary injunction.

<p>Case No. 753.</p> <p>V OLUNTARY BANKRUPTCY — FILING PETITION — Place op Business.</p> <p>Whore a bankrupt did not reside in the southern district of Now York during the next six months preceding the filing of his petition, but, before his insolvency, had been in business in New York city, and had, during the whole of the said six months, carried on business in New York city as the agent and attorney of his brother, in buying and selling merchandise, keeping an office for that purpose with his brother’s name upon the sign; Held, that the petition in bankruptcy was properly filed in the southern district of New York.</p>

[At law. Action by Bainbridge & Co. against -Wilcocks.] The plaintiffs were bankers and commission merchants residing in London, the defendant a merchant residing in Philadelphia; this suit was brought to recover a balance of an account, principally for bills accepted by plaintiffs at the request of defendant, or drawn by him, on his promise to make provision for them at maturity.

<p>[Appeal from the district court of the United States for the eastern district of Pennsylvania.</p> <p>The case was a libel in the admiralty [by Bains against the schooner James and Catherine] for seamen’s wages, to which the claimant offered to set off an account against the libellant, composed in part of provisions furnished him for the use of vessels which he had commanded, and a pump for one of them.</p> <p>Mr. Hubbell opposed the allowance of the credit, 1. Because the account offered was not cognizable in the admiralty, it being merely for goods and provisions sold, and not on a contract in its nature maritime, or made at sea. Le Caux v. Eden, 2 Doug. 594; 3 Bl. Comm. 106; 3 Mason, 161, [Willard v. Dorr, Case No. 17,680;] [The General Smith,] 4 Wheat. [17 U. S.] 438. The claimant can make no offset against a claim for seamen’s wages, otherwise than by showing advances made on account, or some matter which would tend to affect or diminish the amount of compensation due. 3 Mason, 171, [Willard v. Dorr, Case No. 17,680.]</p> <p>The libellant might sue at common law, and by changing the forum cannot put the other party in a worse situation than he would be at law. But though he' sues in the admiralty, it is a court of equity, and will not permit a recovery against equity and good conscience, though the case may not come within any statute of set-off. 2 Burrows, 826; 2 Gall. 526, 551, [The Brutus, Case No. 2,060.] A court of law will set off one judgment against another. 4 Durn & E. [Term R.] 123. An obligor may set off against the assignee a debt due him by the obligee. 1 Rawle, 227, 291. And courts of admiralty have the same power of allowing set-off, as the courts of Pennsylvania. The debt claimed to be set-off is of admiralty jurisdiction, it being founded on a maritime contract for provisioning and repairing vessels. 2 Gall. 475, [De Lovio v. Boit, Case No. 3,776;] 4 Wash. 454, [Zane v. President, Case No. 18,201;] [The General Smith,] 4 Wheat. [17 U. S.] 43S; [The Aurora,] 1 Wheat. [14 U. S.] 96; 2 Gall. 345, [The Jerusalem, Case No. 7,294;] 1 Pet. Adm. 226, 233, [Gardner v. The New Jersey, Case No. 5,233.] And though the contract was made on land, it is incident to matters arising at sea. 2 Pet. Adm. 309, [Moxon v. The Fanny, Case No. 9,895.]</p>

By the act of congress, on the subject of raturalization, (Act April 14, 1802, c. 28, § 1; 2 Stat. 153,) any alien, being a free white person, may become a citizen of the United States by declaring… Held: under the provision that the court shall have jurisdiction in controversies between citizens of different states, that neither the District of Columbia, nor a territory, is a state within the meaning of the constitution. Seton v. Hanham, Charlt.

<p>[In equity. Bill for injunction by William M. Baird against the Shore Line Railway Company. Injunction granted. At a subsequent hearing" this provisional injunction was dissolved. See Baird v. Shore Line'Ry. Co., Case No. 759.]</p> <p>The plaintiff, a resident of Philadelphia and a citizen of the state of Pennsylvania, filed this bill in equity, praying for a perpetual injunction against the defendants, to restrain them from building a bridge across the Connecticut river, connecting their railroad track, between Saybrook and Lyme. He alleged that they were proceeding to erect the bridge, and that the same would very seriously obstruct the navigation of the river. The defendants, by their answer, set up that they were proceeding to erect such bridge under and by virtue of. authority conferred on them by a statute of the state of Connecticut, and that the structure which they were erecting was not intended to obstruct, and would not in fact obstruct,, to any considerable extent, the free navigation of the river. The plaintiff, who alleged that he was an qwner of vessels enrolled and licensed under the act of congress, and engaged in running on said river, and interested in the navigation thereof, now moved that the defendants be temporarily enjoined against the further erection of the bridge, until the final hearing on the bill, answer, and proofs. This motion was founded on uie bill and accompanying affidavits in support of its allegations. The defendants opposed it on their answer and on affidavits.</p>

<p>[In equity. Bill for injunction by William M. Baird against the Shore Line Railway Company. Heard on motion to dissolve the provisional injunction heretofore issued in this cause. Baird v. Shore Line Ry. Co., Case No. 758.</p>

<p>[At law. Action of ejectment by the lessee of James Baird, and Peter Bartmoss, against •Benjamin Wolfe.</p>

<p>[Land claim by Bartolomé Bajorques and another against the United States. Confirmed.</p>

<p>Case No. 762.</p> <p>Bankrcptct Act op 1S4L — Endorsement on Mortgage in Fraud op the Act — Attaching Creditor—Lien.</p> <p>1. An endorsement by the mortgagor upon a chattel mortgage, subjecting chattels acquired after the date of the mortgage to its operation, made in fraud of the bankrupt act, does not invalidate the mortgage otherwise valid, but simply fails of its purpose.</p> <p>2. A creditor having attached the chattels of his debtor within four months of his bankruptcy, and meantime having paid the debt and assumed liabilities secured by an existing mortgage thereon to save the attachment, thereby acquires a valid lien upon the chattels attached, although the attachment becomes void upon the debtor’s bankruptcy, and should be repaid the same by the assignee upon the sale of the chattels to which the lien attached.</p> <p>3. An attachment by a creditor of the property of his insolvent debtor is not a fraud upon the bankrupt act.</p>

<p>Case No. 763.</p> <p>Bankruptcy—Preferences—Knowledge of Creditor.</p> <p>[The value of the stock in trade of a debtor, who had little other property, was about equal to his indebtedness to his brother, and he owed other debts nearly double in amount. This brother with knowledge of the value of the stock, without inquiry into the debtor’s circumstances, intimation of summary measures, or effort to obtain payment, began suit for the whole amount. The debtor, pending the suit, made no attempt to get an accommodation, but remained on friendly terms with his brother, bought on credit, and made payments to certain creditors from the proceeds of sales. The brother delayed 10 days in entering judgment and issuing execution. Held, that the parties intended to secure a preference, the debtor cooperated thereto, the creditor relied on such cooperation, and the judgment obtained by him was therefore void.]</p> <p>[Cited in Parsons v. Caswell, 1 Fed. 78; In re Keller, Case No. 7,654.]</p>

<p>Case No. 764.</p> <p>Equity — Jurisdiction — Adequate Remedy at Law—Ancillary Relief—Pleading—Bill for Discovery-—Demurrer to Jurisdiction — Bill for Account—Stale Claim—Trusts.</p> <p>1. The sixteenth section of the judiciary act [1 Stat. 82] is a declaratory act. settling the law as to cases of equity jurisdiction, in the nature of a proviso, limitation, or exception to its exercise.</p> <p>2. If the plaintiff has a plain, adequate, and complete remedy at law, the case is not a suit in equity under the constitution or the judiciary act.</p> <p>[Cited in Carpenter v. Providence Wash. Ins. Co., 4 How. (45 U. S.l 223; Pierpont v. Powle, Case No. 11,152; Poster v. Swasy, Id. 4,984; Clark v. Sohier. Id. 2,835; Waring v. Clarke, 5 How. (46 U. S.) 472; Bunce v. Gallagher, Case No. 2,133; Curry v. McCauley. 11 Ped. 370; Spring v. Domestic Sewing Mach. Co.. 13 Ped. 448; Yeat-man v. Bradford, 44 Ped. 538.]</p> <p>[Sep Brown v. Pacific Mail S. S. Co., Case No. 2,025; Crane v. McCoy, Id. 3.354; Sullivan v. Portland & K. R. Co.. 94 U. S. 806; Boyce v. Grundv, 3 Pet. (28 U. S.) 210; Morgan v. Beloit, 7 Wall. (74 U. S.) 618.]</p> <p>3. There cannot be concurrent jurisdiction at law and in equity, where the right and remedy are the same, but equity may proceed in aid of the remedy at law by incidental or auxiliary relief, though not by final relief, if the remedy at law is complete. Its jurisdiction is.special, limited, and defined, not as in England, where it depends on usage.</p> <p>[Cited in Pierpont v. Powle, Case No. 11,152.]</p> <p>4. A bill for discovery does not lie for matter of which plaintiff has knowledge and means of proof, or of matter whereof he has the same means of information as the defendant (as public records). If such bill is sustained, it does not give poTOer to make a final decree, if relief is net incidental to the discovery, where nothing is disclosed by the answer, or the whole equity of the bill is denied.</p> <p>5. Though the rules and principles established in the English chancery at the revolution, are adopted in the federal courts, the changes since introduced there are not followed here, especially on matters of jurisdiction, as to which the sixteenth section is imperative.</p> <p>[Cited in Pierpont v. Powle, Case No. 11,152.]</p> <p>6. An objection to jurisdiction for the want of parties, of equity in the bill, or of there being a remedy at law. need not be made by demurrer, plea, or in the answer; it may be made at the hearing, or on appeal.</p> <p>[Cited in Pierpont v. Powle, Case No. 11,152; Yeatman v. Bradford, 44 Fed. 538.]</p> <p>7.A bill for an account does not lie, where an account has been rendered and received.</p> <p>8.If an account is retained an unreasonable time without objection, it becomes in law and equity a stated or settled account, and a bar to an action or bill to account.</p> <p>[Cited in Duryee v. Elkins, Case No. 4.197.] [See Hopkirk v. Page. Case No. 6.697; White v. Macon, Id. 17,553; Bainbridge v. Wil-coclts, Id. 755.]</p> <p>9. A bill to account lies only when an action to account lies at law, and when the case comes under some appropriate head of equity jurisdiction.</p> <p>10. It does not lie on an agreement to procure an assignment of judgments for the use of the plaintiff, when he has evidence of the agreement, and compensation for the breach can be had in damages, nor where there has been a great lapse of time in asking it.</p> <p>11. The staleness of a demand may be relied on at the hearing, though there is no plea, or demurrer, or the answer does not insist on it; equity acts by analogy, or rather in obedience to the statute of limitations on stale demands.</p> <p>12. Equity has cognizance only of executory trusts, not of those executed, or where a trust can be enforced at.law; there must be some act to be done by the trustee.</p> <p>13. A trust once executed cannot be revived by the non execution of a trust resulting from a subsequent agreement relative to the same subject.</p> <p>14. An agency closed wholly or on any distinct matter, as to which no act remains to be done by the agent, is not cognisable in equity, under the head of account or trust.</p> <p>NOTE, [from original report.] The remark of Lord Hardwicke, that “answering submits to the jurisdiction,” has been misapprehended as appears by the case as reported. “The bill was for a specific performance and execution of the articles, what else was in the cause came by way of argument to support, or objection to impeach this relief prayed. The first objection for defendant was, that this court (of chancery) had not jurisdiction nor ought to take recognizance of it; for that the jurisdiction is in the king and council.” 1 Ves. Sr. 444, 445. This objection, with others, which went to the jurisdiction, were considered elaborately, though they were not set up by the answer; the authority of this case is therefore in direct opposition to the position for which it is cited. The remark is consistent with the course taken, it is correct as a general rule, when applied to an "objection to the jurisdiction of the high court of chancery, on the ground that an inferior court of equity has cognizance of the case; but it is not applicable to a case which is not cognizable in any court of equity, on account of the subject matter. With this distinction in view, this remark taken in connection with the whole sentence, the case before the court, and its course in its decision, is not only in perfect conformity with the cases which establish the principle laid down in Baker v. Biddle, but a direct affirmance thereof.</p>

<p>In admiralty. Appeal from the district court, in a cause of maritime collision; Ware, District Judge, presiding. [Nowhere reported.</p> <p>The allegations of. the libel [by Judah Baker and others against the steamship City of New York] were in substance as follows: On the 15th of December, 1855, the schooner George Engs, having on board a cargo of corn, flour, and iron, sailed from Philadelphia on a voyage to Boston. At half past three o'clock on the morning of the 19th of the same month, when steering about east-southeast, she made a light off her weather bow, which proved to be on board the steamer City of New York, bound from Boston to Philadelphia. The weather was perfectly clear when the steamer was first discovered, being at a distance of about five miles from the schooner, coming out between Block island and Montauk point, and steering about southwest by south. The schooner kept off east, on her course for Block island, to give the steamer a wide berth. A short time afterward, when the steamer was nearly abreast the schooner, the mate of the schooner, who was at the helm, observing that the steamer was winding off towards him, immediately called all hands, and the master and mate both shouted to the steamer, which was four or five times her length to windward, to luff or hold her course so as to keep dear, which could then have been done. Immediately before the collision, the mate put up the helm of the schooner for the purpose of saving the lives of those on board. The schooner was struck by the steamer’s bow, on her starboard and windward quarter, about ten feet from her taffrail, and sunk, with everything on board except the crew, in about fifteen minutes afterward. It was set up as matter of defence, that, after having made the steamer, the schooner changed her course and kept off more and more, until the collision occurred; also that the schooner showed no lights, and was not therefore discovered so soon by several minutes as she would have been had she conformed to the usual custom; that as soon as she was seen, the helm of the steamer was put to the starboard, to keep her off and give the schooner room, presuming she would keep her course; but shortly after, the schooner put off more from the wind, in consequence of which the danger of collision became apparent, upon which the engine was stopped and reversed, though too late to prevent the accident. The bows of the steamer struck the schooner near her main rigging. •</p>

<p>This was an appeal in admiralty in a suit in personam, brought [by Baker and others] against the respondents [Draper and others} as owners of the bark Fernandina, to recover for certain supplies alleged to have been furnished by the libellants to the bark on the credit of the vessel and owners. Respondents admitted the ownership of one half of the vessel, and that they held the other half as security for certain advances made to, and liabilities contracted for, one Adolphus Davis, but denied that the credit was given on their account or that of the bark. They alleged that the supplies were furnished on the credit of the said Adolphus Davis, who was the ship’s husband, and that he had subsequently paid for the same as follows, viz. by his promissory note for six hundred and eighty-six dollars and eighty-three cents, dated August 17, 1858, and payable in seven months from date. The libellants in a supplemental bill denied that the credit was given to Davis otherwise than as he was supposed to be one of the owners in the vessel. They also denied receiving the note as payment,, and averred that, if such was the intent of the maker, then the transaction was fraudulent, because it was founded on a fraudulent concealment of material facts touching the ownership of the vessel, and that it had the effect to deceive and mislead the libellants. The note was brought into court and tendered to the respondents. Certain interrogatories were propounded in the supplemental libel, which were answered by respondents. A decree was entered in the district court [•unreported] in favor of the libellants.</p> <p>cited Story, Partn. § 455; Pars. Mar. Law, 91; The Chu-san, [Case No. 2,717.] As to the law in Massachusetts, French v. Price, 24 Pick. 21; Butts v. Dean, 2 Mete. [Mass.] 76-79.</p> <p>cited Maneely v. McGee, 6 Mass. 144; Chapman v. Durant, 10 Mass. 47; French v. Price, 24 Pick. 20; Bangor v. Warren, 34 Me. 324; Hutchins v. Olcutt, 4 Vt. 549; Wright v. Crockery-Ware Co., 1 N. H. 281; Reed v. WThite, 5 Esp. 122; Sheehy v. Mandeville, 6 Cran. [10 U. S.] 253; The Chusan, [supra.]</p>

Scire facias [by John H. Baker, administrator of Bayly] against [George French and others] the terre-tenants of Ariana French, executrix of George French, deceased.

<p>At law. This action was instituted, [by Baker against Gallagher] to recover the amount of a bill of exchange for £224 sterling, drawn by the defendant on a merchant in Liverpool, in favour of the plaintiff, with interest from the date of it. The drawer having no funds in the hands of the drawee, ac-•ceptanee of tlie bill was refused; and, to avoid the legal consequence of a protest, to fix upon the drawer payment of damages, which, by an agreement between drawer and payee, were not to be demanded, the bill was returned without being protested, this agreement having been communicated by the defendant to the drawee. This action was brought before the time for payment by the drawee would have arrived, had he accepted the bül.</p> <p>stated, first, that where the drawer has no funds in the hands •of the drawee, neither protest, nor notice to the drawer, is necessary to enable the payee to recover. 1 Term R. 714, 410; 2 Term R. 717; 5 Term R. 239. Plaintiff must either state that the bill was protested, or show that it was not incumbent on him to protest; as, that the drawer had no effects in the hands of the drawee; but, the- omission can only be taken advantage of by special demurrer. 1 Salk. 131; 1 Show. 125; 2 Doug. 684. ■note 144. Not even necessary to present it for acceptance. Chit. Bills, 68; 2 H. Bl. 336, and post. 2d. That the action was not broughi prematurely. It may be commenced immediately on non-acceptance. 3 Burrows, 1687. 1 Doug. 55; 3 East, 481; Chit. Bills, 64, 100.</p> <p>These points were admitted by Mr. Dallas for the defendant, who stated the case to be, that the defendant was indebted to one Nib-lie, of New Orleans, who again was indebted to the plaintiff: that, by the correspondence between Niblie and the plaintiff, it appeared, that the defendant was to pay to the plaintiff, what he owed to Niblie. In August, 1804, Niblie drew an order on the defendant for 500 dollars, in favour of one Vertner, ai, sixty days, which was accepted. This bill was drawn in December, afterwards. He •contended, that the plaintiff was to be considered as the agent of Niblie; and, as the bill was drawn for the whole sum, which had been due from defendant to Niblie, without crediting the above 500 dollars, the defendant was entitled to a credit for that sum, the •suit being between the original parties to the bill.</p>

<p>Case No. 770.</p> <p>Salvage—Towage and Salvage—Amount Decreed.</p> <p>1. A steamship, worth, with her cargo, $500,-000, took the ground in the harbor of Boston; and was pulled off, at about high water, by a large tug, assisted by the engines of the steamship, and by two small tugs, the principal power being furnished by the ship and the large tug, and the small tugs being occupied less than an hour. Held, that the small tugs had rendered a salvage service.</p> <p>[Cited in The Athenian, 3 Fed. 250.]</p> <p>2. That they were to be paid a liberal compensation, much more than their hire for an hour, but not one into which the value saved would enter as a very important element: Sums decreed, $800 and $400.</p> <p>[Cited in The Athenian, 3 Fed. 250.]</p> <p>NOTE, [from original report.] For the sense in which contract and salvage are contrasted with each other, see The Louisa Jane, [Case No. 8,532.]</p>

At law. Indebitatus assumpsit and quantum meruit, [by Samuel Baker against Thomas Herty,] for work and labor done as extra work; a special contract under seal haying been made for building a house of a certain plan and description, which contained the following clause: “And it is mutually agreed upon that in case any misunderstanding shall take place in relation to the bill of particulars or any other misconception or want of appropriate words to convey the true intent and…

Replevin [by Thomas Baker against Jeffers and Gideon.] Cognizance as bailiffs of Mrs. McGunnigle for rent-arrear; plea, an eviction by the landlady of a ten pin alley. prayed the court to instruct the jury, in effect, that an eviction from a part of the premises suspends the payment of the rent. 1 Tuck. Bl. Comm. 27; 1 Saund. 204, note 7.

At law. This was an action for libel. [By F. P. Baker against the Kansas City Times Company.] Plea justification. The facts sufficiently appear in the charge.

[At law. Proceeding by John W. Baker against Elijah Mix, garnishee of Buckley & Co. See Baker v. Mix, Case No. 774.] Under the plea of nulla bona by the garnishee, he offered in evidence a deed of assignment by Buckley, as surviving partner of Buckley & Co., to one Thomas Pryer, of all the effects of that ffrm, including the debt due to them by the garnishee, with notice thereof to the garnishee before the service of the plaintiff’s attachment objected to the evidence, and…

<p>[In equity. Suit by Perry Baker and others to enjoin the city of Portland from enforcing a state law prohibiting the employment of Chinese laborers for certain purposes. Defendant demurs.</p>

<p>Case No. 780.</p> <p>Landlord and Tenant — Holding Over —Must be at Same Rent—Trusts—Liability or Trustee-Misappropriation or Trust Funds.</p> <p>1. A person having occupied a certain tenement under a written lease, at a certain rent, remained in possession sometime after the expiration of the lease—held, that he was bound to pay the same rent, as under the written lease.</p> <p>2. Where property is received in trust, and the trustee sells it and receives the consideration and appropriates it, he is liable, [in assump-sit,] the same as an agent, should the sale not be objected to.</p>

<p>On an appeal from a decree of the district court, based wholly upon its finding on a disputed question of fact, the burden is on the appellant to show affirmatively a mistake in the finding. The decree will not be reversed where the evidence is such as merely to raise a doubt in regard to the question of fact.</p> <p>[Cited in The Maggie P.. 25 Fed. 206.]</p> <p>[See The Grafton. Case No. 5,655; The Sunswick. Id. 13,625; Taylor v. Harwood, Id. 13,794.]</p> <p>Admiralty appeals from [unreported] decrees of the district court of [the United States for the district of] Massachusetts in cases of cross-libels for damages caused by a collision between the schooners Nellie Doe and Trade Wind. The only question in the cases was whether or not the Trade Wind had a proper light at the time of the collision.</p>

In equity. This was an application [by Isaac D. Baker and Charles Scribner against John S. Taylor] for a provisional injunction to restrain the defendant from infringing an alleged copy-right of the plaintiffs to a book entitled “The Sacred Mountains, by J. T. Headley, author of Napoleon and his Marshals, etc.: Illustrated.” The bill alleged, that the plaintiffs, being sole owners of the said work, which was composed and written by said Headley, but had not then been…

<p>Appeal from the decree of the district court [of the United States for the eastern district of Pennsylvania.]</p> <p>[In admiralty. Libel by B. & J. Baker & Co. against the ship Tros for salvage.</p>

At law. Assumpsit, upon a promissory note [by Baker and Comegyss against Am-brose Vasse.] The first count stated the note to have been given to the plaintiffs without valuable consideration, but to be indorsed by the plaintiffs to enable the defendant to raise money for his accommodation; that the plaintiffs indorsed it in blank; and that the note so indorsed was, in a regular course of mercantile negotiation, transferred, for a full and valuable consideration received by…

<p>[In admiralty. Libel by Samuel Baker against James E. Ward and others on a charter party.</p>

In equity. Petition by [Timothy] Whiting for a rehearing, and for leave to introduce new evidence in this cause, which was formerly before this court, and is reported in 3 Sumn. 476, [Baker v. Whiting, Case No. 787.] [Denied.] The petition, in substance, stated as follows: That the petitioner denies, expressly, that he ever was constituted agent of Tidd & Stimpson, or either of them, or their heirs.

Bill in equity [by George Baker and wife against Timothy Whiting and others] and cross bill.

In bankruptcy. James T. Brady & Co. have offered to make proof before the register of a debt against the estate of said bankrupt, and upon notice being given to the trustees of said bankrupt, acting under the provisions of section 43 of the bankrupt act, [14 Stat. 538,] John M. Kennedy, Esq., their solicito!, appears, and pro forma .resists the offer on the ground -that the bankruptcy proceedings have been stayed, and that the trustees themselves have the sole power to admit…

<p>Case No. 789.</p> <p>Negotiable Instruments—Payment—Extension or Time—Estoppel—Discharge op Indorser.</p> <p>1. Company A. was promisor, and Company B. was indorser, of certain promissory notes. Both companies became embarrassed, and Company A. agreed to sell all its property to C., who had been the treasurer of both companies, at any time within one year, when he should have paid all the debts of the company. Friends of C. subscribed money, and put it into the hands of D., as trustee, to enable him to buy up the notes of Company A. indorsed by Company B. 'Held, that the purchase of these notes by the trustee with the funds of the subscribers was not a payment of the notes.</p> <p>2. A representation by the holder of a note to the indorser that the note has been paid, does not discharge the indorser, who has been duly notified, unless he has suffered some loss or injury by reason of the representation.</p> <p>3. A contract by the holder of a note to give time to the maker must be a valid and enforceable contract, as against the holder, or it will not operate to discharge the indorser.</p>

<p>In bankruptcy.</p>

<p>[At law. Action by William H. Balcheller against the town of Maseoutah on railroad aid bonds. Plaintiff demurs to rejoinders. Demurrer sustained.]</p>

<p>[At law. Action on a promissory note by John T. Balch against Isaac and Samuel Col-man and others.]</p>

This was a chancery attachment of the effects of Jonathan Manro, of Baltimore, in the hands of George F. Warfield and Fielder Luckett, by Ely Balderston, a creditor of Manro.

<p>[In admiralty. Libel in rem by George Balchen and William F. Schmidt against the ship Eli Whitney.</p>

[At law. Action by Baldraff against the Camden & Amboy Railroad Company for loss of trunk and contents. Verdict and judgment for plaintiff.] This was an action against the companj’, as carriers of passengers and their baggage, from New York to Philadelphia.

[In bankruptcy. Petition by Brewster for a reference to take proof of his claim against Theodore E. Baldwin and Edward W. Burr, bankrupts. Order for reference granted. Assignee objects.

In bankruptcy. The bank held a note for three thousand dollars, signed by bankrupt and made proof in full against his estate. Held: as collateral security, stocks pledged to him by the bankrupt, afterwards paid the debt at the bank, and sold the stock for one thousand and forty-five dollars. The register certified the question to the court, and no one appeared to argue it.

[In equity. Bill by Nathan A. Baldwin against Henry O. Bernard and others for infringement of letters patent No. 33,978. Motion for provisional injunction.

[Appeal from the United States district court for the southern district of Alabama. [In admiralty. Libel by Edward Baldwin against the steamer Bradish Johnson, (J. M. Stone and J. H. Stone, claimants.) Other creditors intervened, claiming liens for seamen's wages, supplies furnished in foreign and home ports, taxes, etc. Thereafter Charles Cavaroc Jr., intervened, claiming a. lien by virtue of a mortgage of the steamer.

[In admiralty. Libel in rem by Murray L. Baldwin against the steamboat E. Morris. Joseph T. H. Hall interposed a claim of title to the vessel. Decree for libellant.]

<p>Case No. 800.</p> <p>Judgment—Entrt —Destroyed Record—Piling Transcript—Parties—Practice—Scire Facias.</p> <p>1. A verdict having been obtained in 1860, no further proceedings are had in the cause until 1867. In the meantime the record has bee:i destroyed. The plaintiff may file a transcript of the record in his possession, upon which a judgment may be entered as upon the original record.</p> <p>2. In such case, the defendant having died in the meantime, his personal representative must be made a party, and a rule served to show cause why the transcript should not be filed, does not operate to make him a party.</p> <p>3. It seems that when the personal representative is a non-resident, it should be done by scire facias.</p> <p>4. The copy of the record produced, was in the possession of the plaintiff.</p>

[At law. Assumpsit by Daniel V. B. Baldwin against Jacob Le Roy to recover the price paid by plaintiff to defendant for cerr tain real estate. On motion for a new trial.

[In equity. Bill by Mason L. Baldwin, as-signee in bankruptcy of Jefferson T. Raplee, against Nehemiah Raplee and Ira Raplee, to set aside a mortgage executed by the bankrupt. Decree for complainant. [Subsequently the respondents took an appeal to the circuit court, and a motion to dismiss the appeal was thereafter denied in Baldwin v. Raplee, Case No. 802. The final decree in the circuit court is nowhere reported.]

[Appeal from the district court of the United States for the northern district of New York. [In equity. Bill by Mason L. Baldwin, as-signee in bankruptcy of Jefferson T. Raplee, to set aside a mortgage executed by the bankrupt. Decree for complainant. Respondent appeals. Heard on motion to dismiss the appeal.

In bankruptcy. This was an application [by Ephrahim Baldwin against Lewis Ros-seau and Charles Easton] for a decree in bankruptcy at the instance of a creditor. The case came before the court upon petition and answer, and the evidence taken before a commissioner.

[In equity. Bill by Nathan A Baldwin and others against Joseph Schultz and Leopold Hecht, for infringement of letters patent. Dismissed. On a rehearing, decree is rendered for complainants. [Pinal hearing on pleadings and proofs.

At law. Action on the case [by Stephen K. Baldwin against Amos Sibley and Delano Sibley] for damages for an infringement of a patent right. [On motion for a new trial. Overruled.] Stephen K. Baldwin was the patentee of a machine for cutting shoe-pegs, under letters-patent [No. 2,725] dated the 16th of July, 1842. The patent was renewed on the 8th of July, 1856, and reissued [No. 409] in the following November.

<p>[Appeal from the district court of the United States for the western district of Michigan.</p> <p>[In bankruptcy.]</p>

[In admiralty. Libel in personam by Balfour, Guthrie & Co. against Wilkins & Co. and J. M. ten Bosch, and in rem against the cargo of the Benledi, for demurrage and for damages for detention after loading. Decree for libelants.]

In admiralty. Libel of George M. Granger [against the tug Balize] for seaman’s wages. The libel set forth the hiring of libellant to serve as sailing master on the tug Balize, at the rate of $1,200 for the season, and five per cent, commission on the net earnings of the tug; that in pursuance of this contract, he entered into the service of the tug about the first of March, and so served until the twentieth of July, and claimed a balance due him of $860.10.

Appeal [by Ephraim Ball] from the decision of the commissioner of patents, for refusing, on said Ball’s application, to reissue in three divisions, A, B, and C, of the reissued patent No. 831 for improvements in mowing machines.

Appeal [by Ephraim Ball] from the decision of the commissioner of patents, for refusing, on said Ball’s application, to reissue, in four divisions', his reissued patent No. 832, for improvements in mowing machines.

<p>Case No. 815.</p> <p>Patents for Inventions — Reissue—Broadened Claim.</p> <p>1. The claim of complainant’s reissued patent was, “One or more swinging bread-holders, suspended from the arms or end plates of a rotating reel, in combination with a furnace, so arranged and connected, that the products of combustion will pass into or through the chamber within which the bread-holders move.” The specification shows, that the oven of the pat-entee is constructed with a solid bottom which completely shuts off the fire from the furnace, and flues by the side of the bread chamber so far removed, and so far cut off from the fire, that nothing but heated currents of air can pass into the chamber: Held, that the claim must be construed to be for the application of the rays of heat directly from the fire to the baking chamber, and that, as the original patent contained nothing calculated even to hint how this could be done, but the drawings and model suggest a mode of operation wholly different— viz., the baking of bread by the heat derived from the radiation of heated walls and heated currents of air, the reissued patent was broader than the original.</p> <p>2. The reissued patent, granted to Hosea Ball, June 14, 1870, and extended for seven years from September 23, Í870, for improvement in ovens, held void for claiming what was not embraced in the original patent.</p> <p>[NOTE. Patent No. 15,753 was granted to H. Ball September 23, 1856; reissued June 14, 1870, (No. 4,026.) For other cases involving this patent, see Garneau v. Dozier, 102 U. S. 230; Ball v. Langles, Id. 128.]</p>

<p>Case No. 816.</p> <p>Bankruptcy — Suspension op Payment op Commercial Paper.</p> <p>[The suspension of payment of commercial paper for 14 days is prima facie evidence of fraud, and casts the burden of proof on the debtor. In the absence of explanatory proof, such suspension is to be deemed fraudulent, within the meaning of the bankruptcy act of March 2, 1867, (14 Stat. 517, c. 176.)]</p> <p>[Cited in Re Hercules Mut. Life Assur. Soc., Case No. 6,402; Baldwin v. Wilder, Id. 806.]</p> <p>[See Hensheimer v. Shea, Case No. 6,328; Ex parte Thompson, Id. 13.936; Ex parte Hollis. Id. 6,621; Ex parte Weikert, Id. 17,361: Ex parte Bininger, Id. 1,420; Ex parte Hall, Id. 5,920.]</p>

<p>In bankruptcy.</p>

This was an action at law, [by Herman Balmear against H. W. Otis,] under the Iowa statute, to quiet title. Demurrer to the petition on the ground that the remedy for the case stated in the petition was in equity. [Sustained.]

In bankruptcy. This was an application for a discharge in bankruptcy on a certificate of conformity from the register. The day for showing cause against the discharge was the 10th of December, 1877.

<p>Case Wo. 831.</p> <p>Collision at Pier—Backing—Lookout.</p> <p>1. Where a steam vessel attempted to make a landing at a pier next to a ferry slip, and backed out, after having gone in bow on, and the wind and tide swept her stern towards the ferry slip, and she continued backing until she came in collision with a ferryboat, which was coming into the slip and had slowed as soon as she saw the other steamboat backing, and had stopped and backed as soon as she had reasonable ground for apprehending a collision: Held, that the ferryboat was free from fault;</p> <p>[Cited in The Servia. 30 Fed. 500: The (rreenpoint, 31 Fed. 232; The Cement Rock, 38 Fed. 705.]</p> <p>2. That the other steamboat was in fault in backing as she did, having no person on her after deck to look toward the direction in which she was backing.</p>

<p>[In admiralty. Libel by Baron de Livre-mento against the ferry-boat Baltic for collision. Decree for libellant.]</p>

In admiralty. This was a libel for a collision, which occurred on the 2d of October, 1865, about seven o’clock, A. M., between the steam tug Pope Catlin and the steam ferryboat Baltic. [Interlocutory decree for libel-lant.

<p>Case No. 824.</p> <p>Collision—Damages—Exceptions — Interest on Repairs—Demurrage—Costs—Apportionment.</p> <p>1. In estimating the damages caused by a collision, interest at six per cent, on the sum paid for the repairs of the injured vessel, is to be added.</p> <p>2. To recover demurrage, the party must show, by evidence, that he sustained loss of service of his vessel, and that he sustained damage by such loss.</p> <p>[Cited in Johanssen v. The Eloína, 4 Fed. 574.]</p> <p>[See Barrett v. Williamson, Case No. 1,051; same case, on appeal, 13 How. (54 U. S.) 101: Cannon v. The Potomac, Case No. 2,386; same case, on appeal, 105 TJ. S. 630; The Rhode Island, Case No. 11,743: The Stromless, Id. 13,540; The Santee, Id. 12,-329; The Thomas Kiley, Id. 13,924.]</p> <p>3.Where, in a suit brought to recover damages for collision, the court held both vessels in fault, and that the damages must be apportioned and ordered a reference to ascertain the damages, and the commissioner reported an amount as “due to the libellant:” Reid, that the commissioner should have reported that sum as “the damages sustained by the libellant by reason of the collision,” and that the report should be amended accordingly.</p> <p>4. Where both parties excepted to the commissioner's report, and the libellanfs exceptions were all overruled, and the claimant’s principal exception was allowed, and it appeared that the evidence before the commissioner related almost wholly to items which were disallowed: Reid, that, the costs of the reference and of the exceptions should be allowed to the claimant, but the costs of the cause to and including the interlocutory decree should be allowed to the libellant.</p> <p>[Cited in Vanderbilt v. Reynolds, Case No. 16,839.]</p> <p>5. That, if the difference between the two bills of costs was in favor of the libellant, it should be added to his recovery, but, if in favor of the claimant, it should be deducted from the recovery, or, if larger than the recovery, the latter should be deducted, and the claimant have a decree for the remainder.</p> <p>[6. Cited in The Hercules, 20 Fed. 205, and The Mary Patten, Case No. 9,223, to the point that where both vessels are at fault, and only one injured, one may recover half her damage and full costs.]</p>

[In admiralty. Libel against the steamer Baltic to recover damages for a collision, with demurrage. Decree for libellant.]

<p>In admiralty. This was a motion for a decree of condemnation against the surety in a stipulation in behalf of the libellant, in a suit in admiralty in rem, to pay costs, «fee.</p> <p>Notice of the decree dismissing the libel with costs, and of the return of the execution against the principal unsatisfied, was served on the surety, together with a taxed bill of the costs, and payment of the costs was regularly demanded.</p>

[In equity. Bill by the mayor, etc., of the city of Baltimore, to restrain the Pittsburgh & Connellsville Railroad Company from accepting an act passed by the Pennsylvania legislature in curtailment of respondent’s privileges under its charter. Heard on demurrer to the bill. This case presented only the question of the constitutionality of an act of the legislature of Pennsylvania, purporting to revoke the defendants’ franchises.

[In bankruptcy. In the matter of the Baltimore County Dairy Association. This association was heretofore adjudged bankrupt in this court upon its voluntary petition. Heard on motion by Frank L. Morling to set aside the decree:

Several inquisitions were taken, upon several warrants issued by a justice of the peace for the county of Washington, against D. Carroll, John A. Wilson, D. A. Hall, and Moses Tabbs and others, under the act of ■congress of March 3, 1835, c. 38, (4 stat. 757,) entitled “An act supplementary to an act entitled ‘an act to authorize the extension, construction, and use of a lateral branch of the Baltimore and Ohio Railroad Into and within the District of Columbia,’ passed…

<p>Case No. 831.</p> <p>Seaman’s Wages—Sailing on Shares.</p> <p>A master of a schooner sailed her on shares. A sailor, on leaving the vessel, had a settlement with the master and took the master’s note for the amount of wages due him and some money loaned by him to the master. The note was not paid, and nine months after the discharge of the sailor, he filed a libel against the vessel to recover his wages. A settlement had been had between the master and the owners before the libel was filed: Held, that, although there was no evidence of a specific notice to the libel-lant that he was to be paid by the master only, yet under the circumstances, if tne libellant ever had a lien on the vessel for his wages, he must be held to have waived it.</p> <p>[Cited in The L. L. Lamb, 31 Fed. 34.]</p>

<p>Case No. .832.</p> <p>Army of United States—Enlistment of Minor —State Laws—Habeas Corpus.</p> <p>1. A minor, who enlisted in one of the volunteer companies, raised under the act of congress of May, [13,] 1S46, [9 Stat. 9, c. 16,] providing for the raising of military forces for the Mexican war, but which company has not yet been mustered into the service of the United States, or received or accepted by any officer thereof, and has not received any rations or clothing therefrom, cannot be held in custody as a volunteer, under the law of the United States.</p> <p>2. Nor can such minor be held under the statute of Massachusetts of 1840, c. 92, § 5, which provides for the ordering out of the militia, by draft or otherwise.</p> <p>[Cited in Re McDonald, Case No. 8,752.]</p>

<p>Case No. 833.</p> <p>Patents fob Inventions—Damages—Counsei, Fees—Act of July 8, 1870.</p> <p>1 There is nothing in the 55th section of the act of July 8th, 1870, (16 Stat. 200,) which entitles the plaintiff in a suit in equity for the infringement of letters patent, to recover, as an item of the damages prayed for in the bill, the amount of money paid by him to his counsel in the suit for services rendered therein.</p> <p>[See Holbrook v. Small, Case No. 6,596; Whittemore v. Cutter, Id. 17,600; Stimson v. The Railroads, Id. 13,450; Philp v. Nock, 17 Wall. (84 U. S.) 460; Teese v. Huntingdon, 23 How. (64 U. S.) 2; Parks v. Booth, 102 U. S. 96; Arcambel v. Wise-man, 3 Dali. (3 U. S.) 306. Contra, see Allen v. Blunt, Case No. 217; Alden v. Dewey, Id. 153; Pierson v. Eagle Screw Co., Id. 11,156.)</p>

<p>Case No. 834.</p> <p>Maritime Liens—Priority — Damages for Col-usión.</p> <p>[1. The claim of a libellant for damages occasioned by collision is a maritime lien upon the vessel at fault, or a charge or privilege which gives him substantially the same rights and remedies.]</p> <p>[2. Maritime liens on a vessel sold under the order of a court of admiralty should, as a general rule, be paid out of the proceeds, in the inverse order of the dates of their creation.]</p> <p>[3. The liens governed by this rule include wages, pilotage, towage, wharfage, claims for salvage, bottomry, damages for collision, and claims for materials.]</p> <p>[4. But this order of preference should only be followed when the liens all belong to the same class.]</p> <p>[5. No difference exists between seamen’s wages for the same season of navigation on the lakes, or between the claims of material men who are concurrently giving credit in fitting out a vessel for a voyage, or preparing her for business at the commencement of a season. A season of navigation on the lakes may be assimilated to a voyage on the high seas.]</p> <p>[6. In a libel in rem. all persons have a right to intervene for their interest, and the suit is, in substance, against such persons, as much as if they were specially named defendants. They are bound by the proceedings and decree, and a sale of the res under such proceedings extinguishes their rights.]</p> <p>[7. A creditor who obtains a final decree before other creditors having co-ordinate claims have taken action is entitled to be paid in preference to those who do not assert their claims.]</p> <p>[8. The claims of the holders of bottomry bonds, material men, and a libellant for damages for collision, are of equal rank, and are subject to the general rules of priority and preference.]</p>

<p>- [In equity. Suit for an injunction by A. L. Bancroft and Hubert H. Bancroft against W. W. Thayer, governor, R. P. Erhart, secretary, and L. J. Powell, superintendent,—constituting the Oregon state board of education, —to restrain respondents from adopting a new series of text-books in the common schools of the state.</p>

At law. Ejectment for land lying in Pennsylvania, claimed in right of the female plaintiff, as cousin and heir at law of F. Weiss, Jun. who died intestate, and without issue. [Plaintiff nonsuited.]

Rule to show cause why the award made in this cause should not be confirmed.

[At law. Action on a policy of fire insurance by Frederick J. Bang against the Farmville Insurance & Banking Company. Judgment for plaintiff.] The facts of the case are sufficiently stated by the CHIEF JUSTICE.

<p>Case No. 839.</p> <p>Seamen—Power or Master — Corporal Punishment.</p> <p>1. The master of a vessel has the authority to correct by corporal punishments the negligence or misconduct of any of his crew. But his authority in this respect is not coextensive with that of a parent over his children, or a schoolmaster over his scholars. It extends only to the correction of such negligence or misconduct as relates to their duties as members of the ship’s crew, or tends directly to the subversion of the discipline and police of the ship.2</p> <p>[2. Cited in Fuller v. Colby, Case No. 5,149, to the point that a master may punish for disrespect, disobedience, or disorder on board, as far as a parent may a child.]</p> <p>[3. A ship’s master has no authority to inflict corporal punishment upon a seaman for repeating to members of another ship’s crew harsh words of their captain, accidentally overheard, nor for falsely and maliciously telling them that their captain used such words, although the action of the seaman tends to create discontent and ill feeling among said crew, against their eaptain.] 2</p>

<p>Case No. 840.</p> <p>Shipping—Charter-Party — Provision to Proceed with All Possible Despatch.</p> <p>1. A vessel, while on a voyage to Melbourne, was chartered by the managing owners to defendants. tor a voyage from Calcutta to a port in the United States. The charter-party contained a clause that the vessel was to “proceed from Melbourne to Calcutta with all possible despatch.” Before the master was advised of this engagement, the vessel had sailed from Melbourne to Manilla, seeking business, and did not arrive at Calcutta as soon as the parties had contemplated. The defendants refused to load the vessel; and upon suit to recover damages for a breach of the charter-party, brought by the managing owners, who were described therein as “owners” of the vessel, it was held, that although there were other owners, the suit was rightly brought in the names of those subscribing the charter-party in good faith.</p> <p>2. It was also held, that the clause quoted above was not a condition precedent, but an independent stipulation, which gave the charterers a claim for damages, on failure of performance by the owners, but did not give them the right to avoid the contract, because it appeared that the object of the voyage was not wholly frustrated thereby. '</p> <p>[See note at end of case.]</p> <p>[See Philadelphia, W. & B. R. Co. v. Howard, 13 How. (54 Ü. S.) 307; Dermott v. Jones, 23 How. (64 U. S.) 220.]</p> <p>[NOTE. This decision was reversed in Low-ber v. Bangs, 2 Wall. (69 U. S.) 72S. Mr. Justice Swayne, in delivering the opinion of the court, said that the stipulation that the ship should proceed from Melbourne to Calcutta with all possible despatch should be construed to mean that she should proceed directly from one place to the other, and that to this extent, at least, it was intended to be made of the essence of the contract; that the stipulation was a condition precedent, and not a mere representation nor an independent covenant. Mr. Justice Clifford and Mr. Justice Nelson, dissenting.]</p>

The plaintiffs imported into New York an invoice of books, which was raised in value, on appraisal and reappraisal, more than 10 per cent., and an additional duty or penalty of 20 per cent, was imposed. This was an action against the collector of that port, to recover back the excess of duties, the penalty, and the fees. It was commenced in the supreme court of New York, and was removed. by certiorari, into this court.

At chambers. This cause came up at the April term, 1S70, on motion to reinstate interventions and third oppositions which had been dismissed at a previous term.

<p>Case No. 843.</p> <p>Negotiable Instruments—Bill op Lading— Pennsylvania Statutes.</p> <p>[1. Act Pa. Sept. 24, I860, (1 P. L. 1363,) making bills of lading negotiable, does not enable a wrongful taker of such a bill to pass to an innocent purchaser any better title than he himself has. But if the rightful owner has negligently parted with the bill of lading the wrongful holder may pass a perfect title to an innocent purchaser, who has no notice of such negligence.]</p> <p>[See note at end of case.]</p> <p>[See Dows v. Bank, 91 U. S. 618; Pollard v. Vinton, 105 U. S. 7; Henry v. Warehouse Co., 81 Pa. St. 76; Barker v. Dins-more. 22 P. P. Smith, (72 Pa. St.) 427; Transportation Co. v. Steele, 20 P. F. Smith. (70 Pa. St.) 1S8; Decan v. Shipper, 11 Casey, (35 Pa. St.) 239.]</p> <p>[2. Purchasers of a bill of lading, who have any reason to believe that the sellers held it as security for an outstanding draft, take no better title than such sellers had. And the fact that the purchaser telegraphed the carrier, to iearn whether the shipment represented by the bill had actually been made, is competent evidence on the question of the indorsee’s belief.]</p> <p>[See note at end of case.]</p> <p>[NOTE. This judgment was affirmed by the supreme court in Shaw v. Railroad Co.. 101 U. S. 557. Mr. Justice Strong, in delivering the opinion, said: “Bills of lading are regarded as so much cotton, grain, iron, or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in commerce, a very different thing from bills of exchange and promissory notes, answering a different purpose and performing different functions. It cannot be, therefore, that the statute which made them negotiable by indorsement and delivery, or negotiable' in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not impossible, such as the liability of indorsers, the duty of demand ad diem, notice of nondelivery by the carrier, etc., or the loss of the owner s property by the fraudulent assignment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by indorsement. No statute is to be construed as altering the common law, further than its words import. It is not to be construed ns making any innovation upon the common law which it does not fairly express. Especially is so great an innovation as would be placing bills of lading on the same footing in all respects with bills of exchange not to be inferred from words that can be fully satisfied without it. The law has most carefully protected the ownership of personal property, other than money, against misappropriation by others than the owner, even when it is out of his possession. This protection would be largely withdrawn if the misappropriation of its symbol or representative could avail to defeat the ownership, even when the person who claims under a misappropriation had reason to believe that the person from whom he took the property had no right to it. We think, therefore, that the rule asserted in Goodman v. Harvey, 4 Adol. & B. 870; Goodman v. Simonds, 20 How. (G1 U. S.) 343; Murray v. Lardner, 2 Wail. (69 TJ. S.) 110,—and in Phelan v. Moss. 67 Pa. St. 59, is not applicable to a stolen bill of lading. At least, the purchaser of such a bill, with reason to believe that his vendor was not the owner of the bill, or that it was held to secure the payment of an outstanding draft, is not a bona fide purchaser, and he is not entitled to hold the merchandise covered by the bill against its true owner. In the present case there was more than mere negligence on the part of Miller & Bro.; more than mere reason for suspicion. There was reason to believe Kuhn & Bro. had no right to negotiate the bill. This falls very little, if any. short of knowledge. It may fairly be assumed that one who has reason to believe a fact exists knows •it exists; certainly, if he be a reasonable being.”]</p>

At law. Assumpsit, by the [Bank of Alexandria] indorsee against [Edward W. Clarke] the maker of a promissory note for $64.25. [Judgment for plaintiff.] A verdict was talcen for the plaintiff subject to the opinion of the court, whether the deposition of C. Neale, the indorser of the note, be admissible as evidence in this cause, without a release from the plaintiff; and, if admissible, whether it be sufficient per se to take the case out of the statute of limitations.

<p>Case No. 845.</p> <p>Practice—Bank of Alexandria—Charter.</p> <p>Tne Bank of Alexandria is, by its charter,2 entitled to judgment at the first term.</p> <p>[See Bank of Alexandria v. Henderson, Case No. S4S.]</p>

At law. Assumpsit [by the Bank of Alexandria] against the executrix of the indorser of a promissory note for $4,000, made by one .Tames Deneale by his attorney in fact, the defendant’s testator, George Deneale, payable to the said George Deneale and by him indorsed to the plaintiffs, by whom it was discounted, and the proceeds placed to the credit of the maker, James Deneale. [Verdict and judgment for defendant] It was dated at Alexandria, on the 16th of June, 1818. and…

<p>[At law. Action by the Bank of Alexandria against Joseph Mandeville to recover on a promissory note. Heard on demurrer to the replication. Judgment for plaintiff.]</p>

Assumpsit [by the Bank of Alexandria against John McCrea] for money overdrawn. objected to the testimony of Mr. McKenna, the cashier •of the bank, because he would be liable if he received the money and did not credit it.

At law. Debt on a note signed by R. B. Jamesson, charging Mandeville as a secret partner. [See Bank of Alexandria v. Mande-ville, Case No. 850.] 1st plea, nil debet. 2d plea, usury, upon which there was a demurrer and judgment at the last term. 3d plea, usury.

At law. Assumpsit [by the Bank of Alexandria) against [Peter Saunders] the indorser of a note made by John McPherson & Son for $3,000, upon which the bank had discounted $2,500 for the accommodation of John McPherson & Son, on the 18th of March, 1817, and which fell due on 20th of May, 1817; on which day the bank discounted a new note of John McPherson & Son, indorsed by the defendant for $2,500, and protested the note for $3,000, and applied the new discount to other claims…

At law. Assumpsit, by [the Bank of Alexandria] the indorsee against [Thomas Swann] the indorser of the note of H. Peake, for $1,400, payable and negotiable in the Bank of Alexandria, dated 23d June, 1829, at sixty days after date. Special verdict.

At law. [James] Wilson was indorser of the note of Ricketts, Newton & Co. and Alexander Henderson & Co. The note was discounted at the Bank of Alexandria for the benefit of Alexander Henderson & Co. contended. That the provisions ol the charter of the bank respecting summary judgments, applied only to the party who was the real debtor. That in Virginia the maker must be sued, &c., before resort can be had to the indorser.

At law. Assumpsit [by Bank of Alexandria] against [W. Wilson] the indorser of A. & W. Ramsay’s note. contended that A. & W. Ramsay, having given a deed of trust to Ludwell Lee, with a power of sale in case of the note laying over for a year, and that the trustee not having sold the property until it depreciated, so as to become inadequate security, the defendant, the in-dorser, was discharged, although he had regular notice of non-payment.

moved the court to consolidate a number of actions of debt upon promissory notes, all the notes being due at the time of issuing the writs. Cecil v. Brigges, 2 Term R. 639. One action of debt, he said, might have included the whole; it is but one debt. The plaintiffs were not obliged to bring debt, they might have brought assumpsit for money had and received, and given the notes in evidence.

At law. Assumpsit [by Bank of Alexandria] against [Robert Young] the indorser of the nóte of James and Alexander Smith, dated June 13th, 1807, at fifty-four days', payable on the 6th and 9th of August. Payment was demanded and notice given on the 9th of September.

[At law. Action by the Bank of British North America against M. M. Ellis and others on promissory notes. Plaintiff demurs to answer. Demurrer sustained. Defendants subsequently had leave to file an amended answer, to which, plaintiff also demurred. Demurrer sustained. 2 Fed. 44.]

[In equity. Bill by receivers of the Bank of Circleville, Ohio, against Nicholas P. Igle-hart, to enforce a decree of an Ohio state court. On demurrer to the bill.

[In equity. Bill by the Bank of Cleveland to enjoin Sturges, Roe and Barker from selling on execution the property of Vantine in satisfaction of a judgment obtained against Beebee, Vantine & Co. Decree for respondents. The property was subsequently sold to Sturges, who brought ejectment against the Bank of Cleveland under his marshal’s deed. See Sturgess v. Bank of Cleveland, Case No. 13.571.]

At law. Scire facias, to show cause why execution should not issue [against Baker and Dawes] on an order of the president of the Bank of Columbia, made in December, 1825, returnable to May term, 1826, which was never delivered to the marshal, but remained in or was returned to the clerk’s office, by the cashier of the bank.

At law. Motion by Mr. Redin, for the defendant, to quash three writs of fieri facias against the defendants [Bunnel and Robertson] as endorsers of Edward Ford’s note issued by order of the president of the Bank of Columbia under the 14th section of its charter of 1793, c. 30, which authorizes him, upon non-payment of a note made expressly negotiable at that bank, to order execution, “on which the debt and costs may be levied by selling the property of the defendant for the…

<p>Case No. 866.</p> <p>Equity—Vendor and Vendee—He Who Seeks Equity must Do Equity.</p> <p>A vendee coming into equity to obtain the legal title of a lot upon which the purchase-money has been fully paid, must pay the balance due to the vendor upon other lots.</p>

At law. Assumpsit [by Bank of Columbia against G. French’s executrix] on a negotiable promissory note for 1,400 dollars, made October 10, 1798, by W. M. Duncanson, payable to, and indorsed by, G. French, due 9 and 12 December, 1798. On the 15th December, 1798, F. Munroe (a notary public,) demanded payment of Duncanson, and protested the note. The note was made for the accommodation of W. M. Duncan-son.

<p>Case No. 868.</p> <p>Landlord and Tenant—Rent—Eviction.</p> <p>1. In an action for use and occupation, if the rent be payable quarterly, the plaintiff may recover rent to the end of the quarter preceding the eviction, but not for the part of the quarter during which the eviction was.</p> <p>2. The same principle applies when the rent is payable yearly.</p> <p>At law. Action on tbe case, for use and occupation.</p>

At law. Assumpsit [by Bank of Columbia] against [Álpheus J.] Hyatt and D. Wilson upon their joint indorsement, in the name of the firm, of Harding’s note for $172.50. Hyatt only having been taken, pleaded non assump-sit and the statute of limitations on the 4th of December, 1S28, the rule to plead having expired on the first Monday of November, 1828. .moved the court to reject the plea of limitations because it was too late.

At law. The plea of limitations, in this •cause, was entitled, in the margin of the paper, “The President and Directors of the Bank of Columbia v. Richard Jones.” The plaintiffs demurred, and assigned for •cause, that the plaintiffs, stated in the said plea, and whose declaration the said plea purports to answer, are stated to be “The President and Directors of the Bank of Columbia,” whereas the plaintiffs in this suit, and whose declaration the said plea ought to have…

At law. Assumpsit [by Bank of Columbia] against the administrator of [George King.] the indorser of several promissory notes, made by Wharton & Grindage. One of the notes became payable on the 11th of October, 1821, for $2,505; that being the last day of grace.

<p>At law. Assumpsit [by the Bank of Columbia] against the indorser [Lawrence] of Joseph Milligan’s promissory note for 85.000, at sixty days, negotiable in the bank of Columbia, payable on the 13th-16th of April, 1819, and dated at Georgetown.</p> <p>By the bill of exceptions in this case, it appears that evidence was offered, that the defendant, who was a morocco leather-dresser, and owned a house in the city of Washington, where he had his shop, removed, in the year 1818, into the country, in the county of Alexandria, where he lived, at the time of indorsing the note, and when it became payable, and that the Georgetown post-office was the post-office nearest to his residence, being two or three miles distant, and the one at which he usually received his letters which came by the mail. That the. notice of nonpayment was put into the Georgetown post-office, addressed to the defendant “Georgetown,” and that such was the generally known usage of the banks when indorsers resided out of the town; and that such usage was known to the defendant. That the defendant continued to own the house in Washington, which was only a quarter of a mile from Georgetown, where the plaintiff’s banking-house was situated, and permitted his sister, Mrs. Harbaugh, to occupy it without rent, and came regularly every week, two or three days in each week, to the said house, where he kept his book of accounts, and received his ordinary bank notices, his newspapers, and foreign letters, and where he was employed in winding up his former business and settling his accounts; and that his so coming to town, and so employing himself, at such times, at the said house, was generally known to persons having business with the defendant, and to the runner of the Bank of Columbia.</p> <p>Whereupon the plaintiffs prayed the court to instruct the jury, that it was not incumbent on the plaintiffs to have left the notice of non-payment at the house occupied by Mrs. Harbaugh, but that it was sufficient to leave it at the post-office in Georgetown; which instruction, the court, being divided, (CRANCH, Chief Judge, absent,) did not give.</p> <p>And thereupon, the defendant prayed, &c.,' that the notice so given was not sufficient to charge the defendant; which instruction the court, (being divided,) did not give.</p> <p>The case was, afterwards, in the same term, brought before a full court, when the following authorities were cited or consulted: Bank of U. S. v. Norwood, 1 Har. & J. 423; Lenox v. Roberts, 2 Wheat. [15 U. S.] 377; Bussard v. Levering. 6 Wheat. [19 U. S.] 102; Lindenberger v. Bell, Id. 104; M’Gruder v. Bank of Washington, 9 Wheat. [22 U. S.] 600. The demand need not be personal; it is sufficient if made at his place of abode, or generally, “at the place where he ought to be found.” Ireland v. Kip, 10 Johns. 490, 11 Johns. 231; Chit. Bills, 288; Freeman v. Boynton, 7 Mass. 483.</p>

At law. Assumpsit [by Bank of Columbia]; against [Leonard Mackall] the indorser of B. F. Mackáll’s note for $3,000, due 31st May, 1821, payable at the Bank of Columbia. The defendant was the notary-public generally employed by the plaintiffs to demand payment of notes and give notice to the in-dorsers. His son, Brooke Mackall, was his deputy-notary, and transacted most of his notarial business.

At law. Assumpsit [by the Bank of Columbia] against [Samuel McKenny,] the in-dorser of a promissory note, dated June 24, 1819, at 00 days. objected to the question proposed to the notary who protested the note, whether from his recollection of the practice of the bank in giving out the notes for protest on the third day of grace, the date of the protest as stated in his notarial book was not a mistake, the date being on the second day of grace.

At law. This was a fieri facias issued Iagainst James Moore] by order of the president of the Bank of Columbia under its charter of 1793, (chapter 30,) without a judgment. The defendant pleaded non assumpsit within three years next before the commencement of this suit. contended that the demand of payment, which was a necessary preliminary to the issuing of the execution, was the commencement of the suit.

At law. Assumpsit against the administrator of [John Ott] the indorser of a promissory note, payable in sixty days after date. The defendant had pleaded “non assumpsit infra tres annos,” to which the plaintiff demurred generally. [See this case at' last term.

At law. Upon the return of a ca. sa. issued by order of the president of the Bank of Columbia, under the 14th section of its charter, of 1793, c. 30, without a previous judgment, the defendant [George Sweeny] having disputed the debt, the court ordered an issue to be made up between the parties, and for that purpose required the plaintiffs to file their declaration within - days, and the defendant to plead thereto within three days after notice of filing the declaration.

<p>Case No. 880.</p> <p>Pleading—General Issue—General Demurrer —Plea in Abatement.</p>

Mr. Daniel Kurtz, being called as a witness for the plaintiffs, objected to taking the usual oath; and said he held the doctrine of the Society of Friends upon that point; but could not say he was a member of that society, but he generally worshipped with them. The defendant’s counsel, Mr. Jones, objected to his giving testimony, otherwise than upon oath.

[Appeal from the district court of the United States for the western district of Missouri. [In bankruptcy. From an unreported decree sustaining a demurrer to the bill, plaintiff appeals. Affirmed.] The only question is as to the sufficiency of the bill of complaint.

At law. Assumpsit [by the president, directors and company of the Bank of Cumberland against Henry Willis] for non-payment of certain bills of exchange, drawn at Portland, by one George Willis; one payable to tlie order of William Willis, and another to the order of Mason Greenwood, on the defendant, and accepted by him. The declaration alleged that all the members of the corporation were citizens of Maine, and the defendant a citizen of Massachusetts.

In equity. Motion [in a suit by the Bank of Danville against Eliza Travers] to suppress depositions for insufficiency of the notarial certificate, the depositions having been returned and opened in July, 1865.

<p>Case No. 888.</p> <p>Negotiable Instruments — Indorsement — Lex Loci Contractus—-Pleading—Defect Waived by Pleading Over—Demurrer.</p> <p>1. A bill drawn and indorsed in Illinois, payable in New York, derives its character from the law of Illinois.</p> <p>2. The law of the place of payment will regulate the interest; but the liability of the indorser depends upon the law of the place where the indorsement was made.</p> <p>[See Boyce v. Edwards, 4 Pet. (29 U. S.) 111.]</p> <p>3. The indorsement is a new contract, and, like all other contracts, is governed by the lex loci contractus.</p> <p>[See Burrows v. Hannegan, Case No. 2,205; Lenox v. Wilson, Id. 8,247; Pomery v. Slacum, Id. 11.262. Contra, see, Mott v. Wright, Id. 9,8S3.]</p> <p>4. A defendant may waive a defect in a declaration by pleading, and if an issue be taken on the facts of the plea'by the replication, the case must turn upon the issue so made. But, if the plaintiff demur to the plea, the court should look at the first defect in pleading.</p> <p>[See Blossberg, etc., R. Co., v. Tioga R. Co., Case No. 1,563; Greathouse v. Dunlap, Id. 5,742; Wright v. Johnson, Id. 18,082; U. S. v. Central Nat. Bank, 10 Fed. 612; Clearwater v. Meredith, 1 Wall. (68 U. S.) 25; Aurora City v. West, 7 Wall. (74 U. S.) 82.]</p>

[At law. Action by the Bank of Kentucky against the Adams Express Company to recover damages for a package which was destroyed by fire while in possession of the defendant. Verdict and judgment for defendant. Heard on motion for a new trial.

In bankruptcy. This was a petition by the Madison Manufacturing Company, praying that the assignee may be ordered to pay over five hundred and seventeen dollars and forty cents, claimed to belong to said company. On the 18th day of August, 1873, the said company took a note of E. W. Skinner, for five hundred dollars, due in September, to-the bank for collection and got it discounted,, and the proceeds passed to its credit on the-bank books.

<p>Case No. 891.</p> <p>Principal and Surety — Contract under Seal —Estoppel—Discharge op Surety.</p> <p>1.In an instrument under seal, where the parties bind themselves as principals, they are estopped, at law, from showing that they were only bound as securities.</p> <p>[See Sprigg v. Bank of Mt. Pleasant, Case No. 13,257.]</p> <p>[See note at end of case.]</p> <p>2. In ordinary cases of security, extending the time or varying the obligation, without the consent of the securities, will discharge them.</p> <p>[See note at end of case.]</p> <p>3. But principals are not bound , to use active diligence, unless called on to do so, by the securities, through a court of chancery, or otherwise.</p> <p>4. The doctrine of estoppel is founded on reason and justice.</p> <p>5. A deed absolute upon its face, in equity, is often considered a mortgage, to prevent the perpetration of a fraud.</p> <p>6. A penal bond is considered in the light of a security, and is not enforced beyond the indemnity.</p> <p>[See Massey v. Schott, Case No. 9,262.]</p> <p>[NOTE. This decision was affirmed by the supreme court in Sprigg v. Bank of Mt. Pleasant, 10 Pet. (35 U. S.) 257. Mr. Justice Thompson, in delivering the opinion, said: “It falls within the settled rule of law in relation to sureties, that extending to the principal further time of payment, by a new agreement, will discharge the surety. This, indeed, has not been denied on the argument. It has been contended that it appearing expressly on the face of the bond that the defendant acknowledged himself as principal, did not vary the question; for that all joint and several obligors in a bond are, in a judgment of law, considered principals. That is true, as a prima facie presumption of law, but is not conclusive upon a party when drawn in question before a proper tribunal. But, as matter of estoppel at law. it may stand on a different footing, and is, at all events, as matter of fact more conclusive. * * * In ordinary cases, when sureties sign an instrument without any designation of the character in which they become bound, it may be reasonable to conclude that they understood that their liability was conditional, and attar hed only in default of payment by the principal. And hence the reasonableness of the rule of law which requires of the creditor that his conduct with respect to his debtor should be such as not to enlarge the liability of the surety, and make him responsible beyond what he understood he had bound himself. But when one who is in reality only surety is willing to place himself in the situation of a principal by expressly declaring upon his contract that he binds himself as such, there cannot be any hardship in holding him to the character in which he assumes to place himself. As to that particular contract, he undertakes as a partner with the debtor, and has no more right to disclaim the character of principal than the creditor would have to treat him as principal if he had set out in the obligation that he was only surety.”</p> <p>[The defendant in this case then filed a bill in equity to enjoin the bank from further proceedings on the judgment. This bill was dismissed. Sprigg v. Bank of Mt. Pleasant, Case No. 13,257. Sprigg then appealed to the supreme court, which affirmed the decree. 14 Pet. (39 U. S.) 201.]</p>

<p>At law. This case was in some respects similar to the preceding, [Hale v. Baldwin, Case No. 5,913,] being an action of assumpsit upon a promissory note signed by James W. Baldwin.</p> <p>The note was in the following terms:— “$3,500. Five months after date I promise to pay to the order of O. C. Hale, Esq., cashier, thirty-five hundred dollars at either bank in Boston, value received.” The plaintiff bank was a corporation of Vermont, arid the defendant, at the time of making the note and when the suit was brought, was a citizen of Massachusetts. As stated in the previous case, the defendant had, before the commencement of the suit, ouiained a certificate of discharge from his debts in the insolvency court of Massachusetts, but the plaintiff in this case took no part in the insolvent proceedings. Defendant pleaded the general issue, and also the certificate of discharge in bar of the suit. It was agreed that O. C. Hale was the cashier of the Bank of Newbury at the time of the making of the note. The court said: “Two questions are presented for decision, but one of them is the same as that decided in the preceding case, and must be ruled in the same way;” and it was held, “first, that the power given to the United States to pass bankrupt laws is not exclusive; second, that the fair and ordinary exercise of that power by states does not necessarily involve a violation of the obligation of contracts; third, but where, in the exercise of that power, the states pass beyond their own limits and the rights of their own citizens, and act upon the rights of citizens of other states, there arises a conflict of sovereign power and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other states. Ogden v. Saunders, 12 Wheat. [25 U. S.] 213; Boyle v. Zacharie, 6 Pet. [31 U. S.] 635.”</p>

This was a case stated for the opinion of the court. The Schuylkill and Susquehannah Canal Company drew a bill for 7,000 dollars on their treasurer in favour of Ruston, and another in favour of the defendant for 10,000 dollars, which they endorsed, and got discounted at the Bank of North America.

<p>Case No. 894.</p> <p>Bankkdptct—State Banks —Right to Interest on Bank Biles.</p> <p>[A creditor holding bank bills of a state bank adjudged a bankrupt is entitled to interest thereon only from the time of filing proofs in bankruptcy, where no demand for payment has been made by him, and there is no evidence of when the bank bills came into his possession.]</p> <p>[NOTE. For opinions in subsequent course of same litigation, see In re Bank of North Carolina, Cases Nos. 895-897.]</p>

[In bankruptcy. Appeal from an order of the district court for the eastern district of North Carolina. [The Bank of North Carolina filed its petition in bankruptcy October 31, 1868, and November 5, 1868, was adjudged a bankrupt. Debts were proven, amounting to $312,180.-84, on which dividends amounting in all to 100 per cent, were declared, leaving a surplus in the hands of the assignee of about $30,000.

<p>Case No. 896.</p> <p>Bankruptcy—Powers op Register.</p> <p>[1. The bankruptcy act of March 2, 1867, <14 Stat. 519, § 4,) confers power upon the register to make all such orders as are proper to be made in any bankruptcy proceedings, except only such as the law provides in express terms, he shall not make, and such others as the law provides that the judge of the bankruptcy court shall make.]</p> <p>[2. With these exceptions, wherever it is provided in the law that the court may exercise a power, the register to whom a case in bankruptcy has been referred may exercise that power, unless some person having some interest in the estate of the bankrupt shall make some objection to the exercise thereof.]</p> <p>[3. The register in bankruptcy has power to direct a sale of debts or choses in action belonging to or being a part of the bankrupt’s estate, upon a proper application, if there be no objection made by a person or party having some interest in the proper distribution of the bankrupt estate.]</p> <p>[4. On a charge that an application to the register for an order of sale of the bankrupt’s estate was caused by an improper solicitation or interference of the register, the strict rules of evidence applicable to the trial of causes should not be applied; and, if the party making the charge examines the register, he is not bound by the register’s answers, so as to be precluded from offering other evidence, though such evidence may be offered to impair the force of his testimony, or even to contradict him.]</p> <p>[5. The register to whom a case has been referred may, in case of delay in winding up the bankrupt estate, properly inquire why a settlement has not been made, suggest the propriety • of making progress, and indicate what steps the assignee should take.]</p> <p>[NOTE. For other opinions in cases involving the same bankrupt estate, see In re Bank of North Carolina, Cases Nos. 894, 895, and 897.]</p>

<p>Case No. 897.</p> <p>Bankruptcy—Validity op Compromise.</p> <p>[If a debtor tenders to his creditor, and the creditor accepts, a sum smaller in amount than the debt as and for satisfaction in full, the debt is discharged.]</p> <p>[See Henderson v. Moore, 5 Craneh, (9 U. S.) 11; Memphis v. Brown, Case No. 9,415.]</p>

[In equity. Bill by the Bank of South Carolina against Bicknell and. Skinner and the Commercial Insurance Company on a policy of insurance. Bill dismissed. Reversed by supreme court in Bank of South Carolina v. Commercial Ins. Co., 17 Lawy. Ed. U. S. Sup. Ct.

At law. This was an action to recover a balance of $22,739, due the plaintiffs at the time of the occupation of New Orleans by the United States forces in 1862. General Butler prohibited the circulation of Confederate notes, and required the banks, including the defendants, to pay their depositors in United States legal-tender notes or specie, or in their own notes, redeemable in legal-tender notes.

At law. Assumpsit against the executors of the indorser of George A. Carroll’s note for $1,100. After verdict for the plaintiffs, as stated in [Brent v. Bank of the Metropolis] 1 Pet. [20 U. S.] 89, the defendants moved in arrest of judgment because it did not appear by the declaration that demand had been made upon the maker. The declaration stated that the note was negotiable at the Bank of the Metropolis, and that it was demanded at that bank, “where it was payable.”

[At law. Action upon a promissory note by the Bank of the Metropolis against Thomas P. Moore. Judgment for plaintiff. This was subsequently affirmed by the supreme court in Moore v. Bank of the Metropolis, 13 Pet. (38 ü. S.) 302.] Assumpsit upon the following promissory note: “$5,000. Washington, 16th February, 1837.

At law. Debt upon a bond given upon appeal to the supreme court of the United States, executed by Robert Y; Brent, Joseph Pierson, and the defendant, Thomas Swann, to the plaintiff, [the Bank of the Metropolis,} in the penalty of $2,500, dated 14th February, 1825, with the following condition: “Whereas lately, at a circuit court of the United States, for the District of Columbia, in the county of Washington, in a suit depending in the said court, wherein the Bank of the…

[At law. Action upon a contract of in-dorsement by the Bank of the Metropolis against Joseph Walker. Verdict was given for plaintiff, subject to the opinion of the court upon a case stated. Thereafter judgment was given for plaintiff. Bank of the Metropolis v. Walker, Case No. 903.

<p>At law. Assumpsit against the indorser of Rind’s promissory note.</p>

At law. Ejectment for the western moiety of lot No. 2, in the square No. 348, in the city of Washington. It was agreed that the plaintiffs need not trace their title farther back than to the commissioners of the city of Washington. The plaintiffs claimed title by a deed from those commissioners to John Murdoch.

At law. Scire facias to revive a judgment [against George Bomford.] The following statement of facts was submitted to the court for its decision: The iBank of the United States, the above legal plaintiff, made several partial assignments of assets to different sets of trustees for different objects, and among them: (These assignments not to be considered by the court unless- admissible in evidence in this cause.) 1st. To James Dundas et al., May 1st, Í841, to secure certain…

At law. Debt [by the Bank of the United States against William Brent, surety] upon the official bond of Richmond Johnson, a teller of the office of discount and deposit of the Bank of the United States, at Washington, dated 21st September, 1819, in the penalty of $20,000, the condition of which was, that he should “well and faithfully execute the said office, and in all things relating to the same, should well and faithfully behave.” [Heard on demurrer to pleas and demurrer…

At law. Assumpsit against [Thomas Cor-coran] the defendant as indorser of Daniel Reintzel’s note, for $3,700. [Judgment for defendant. This was subsequently affirmed by the supreme court in Bank of U. S. v. Corcoran, 2 Pet.

<p>Case No. 914.</p> <p>Corporations—Officers—Appointment—Evidence.</p> <p>[This was an action of debt on an official bond, and was brought by the Bank of the United States against Dandridge as principal, and- Carter B. Page, Wilson Allen, James Brown, Jr., Thomas Taylor, Harry Heth, and Andrew Stevenson as sureties. The bond was conditioned to be void if Dandridge should well, truly, and faithfully discharge the duties and trust reposed in him as cashier of the office of discount and deposit of the Bank of the United States at Richmond. The court (by Marshall, Circuit Justice) held that, although the bond was duly executed by the defendants, and Dan-dridge was appointed and continued as cashier, yet there had been no approval and acceptance of the bond as provided by the charter of the bank, and therefore the defendants were not bound thereby. The court also excluded evidence offered to prove the acceptance of the bond, on the ground that the record of the proceedings of the board of directors, or a copy of it, showing the assent of the directors to the bond, was necessary, and if such assent had not been entered on the records the bond was void. This was not because the record was rimary evidence, which the plaintiff had it in is power to produce, but rather because a corporation aggregate can act only by writing, or by its duly-appointed officers, and such officers could be appointed only by writing.]</p> <p>[Cited in Bank of U. S. v. Brent, Case No. 910.]</p>

At law. This was an action brought by the president, directors and company of the Bank of the United States (established, as they averred, under an act of congress, entitled, an act to incorporate the subscribers to the Bank of the United States, passed the 20th of February, 1791, [1 Stat. 191, c. 10,]) [against Peter Deveaux, tax collector, and Thomas Robertson, sheriff] for the purpose of trying tne right of the state of Georgia to impose a tax on the branch1 of the said…

At law. Assumpsit [by the Bank of the United States] upon R. Wright’s draft on Jenkins, of Baltimore, in favor of the defendant, Richard Davis, by him indorsed in blank, and by Kichard Smith, cashier of the office of the Bank of the United States in Washington, to- White, cashier of the office of the Bank of the United States in Baltimore.

<p>Case No. 917.</p> <p>Negotiable Instruments — Notice of Non-Patment — Notice from One Indorser to Another.</p> <p>1. Where a note is made payable at a particular place, and the indorser resides there; if the holder remits it to his agent at such place for payment, and it is dishonoured; the agent is not bound to give notice of the dishonour to the indorser; but his duty is to give notice to his principal; who may then give notice to the in-dorser, and if given in due time after the principal has received notice, the indorser is bound.</p> <p>[Followed in Codrington v. Adams, Case No. 2.937.]</p> <p>2. If due notice is given by a holder to his immediate indorser, of the dishonour of a note, and the latter gives due notice to a prior indorser, the holder may recover against the latter, although he has never given him any notice; for due notice given by any party on the bill, is notice to charge in favour of all subsequent parties.</p> <p>[3. The relation of a branch of the Bank of the United States to another branch, or to the parent bank, which has forwarded paper for collection, is simply that of principal and agent.]</p>

<p>At law. This action [by the Bank of the United States] is a scire facias to make the defendant a party to a judgment, which was obtained by the plaintiff against Elijah Pearson. The writ was issued against Pearson and [William S.] Hatch, and being non est as to Hatch, a judgment was entered against Pearson. [Judgment for defendant. This was afterwards affirmed by the supreme court. Bank of U. S. v. Hatch, 6 Pet. (31 U. S.) 250. See note at end of case.]</p>

At law. Assumpsit [by the Bank of the United States against Richmond Johnson] for money had and received, being the balance of money in the defendant’s hands as second teller, not accounted for. [Judgment for plaintiff. A former action of debt against the surety on the teller’s official bond resulted in judgment for defendant.

In equity. The bill in this case was filed by the Bank of the United States against Elizabeth Lee, widow of R. B. Lee, deceased, Edmund J. Lee, surviving trustee under a deed of trust for the separate use of Mrs. Lee, and Richard Smith, a trustee under a deed from R. B. Lee, to secure his debt to the Bank of the United States.

[At law. Action by the Bank of the United States against Longworth and Wright to recover possession of certain real property. This case was argued by Messrs. Caswell and Starr for the plaintiffs, and by Mr. Hammond for the defendants.

[At law.] Assumpsit [by the Bank of the United States] against [Stephen Macdonald] the last indorser of William Prentiss’s promissory note to John Agg, or order, at 60 days, from April 5, 1831, for $5,200, payable at the office of discount and deposit at Washington, indorsed by Agg and the defendant. in order to prove demand and notice to the defendant, offered to prove, by Michael Nourse, a notary-public, that on the 7th of June, 1831, he called with the note at the office…

At law. This was an action on the ease, brought by the president, directors, and company, of the Bank of the United States, against Donald M’Kenzie, a citizen of Virginia, to recover the amount of a negotiable note, made by Michael W. Hancock, and endorsed by M’Kenzie. The note was for $4,000, and was discounted at the. Branch Bank of the United States, at Richmond, and was regularly protested for nonpayment on the 26th day of December, 1821. This suit was brought in 1828.

At law. This was an action of debt [by the president, directors, and company of the Bank of the United States] on a bond in the penalty of 50,000 dollars, made by Arthur W. Magill, Joshua Stow, Elisha Coe, and Nathan Starr, jun., the defendants, to the plaintiffs, conditioned, that said Magill should, during the term he should hold the office of cashier of the office of discount and •deposite of the Bank of the United States at Middletown, Connecticut, execute the duties…

<p>Case No. 931.</p> <p>Federal Courts—Jurisdiction—Federal Qoes-tio.v—Bank of United States.</p> <p>The plaintiffs are a corporation established by law of the United States; the defendants are a corporation established by an act of the legislature of Pennsylvania. This is a case arising under an act of congress which incorporated the Bank of the United States, and the suit may be maintained in this court.</p> <p>[Cited in Fisk v. Union Pac. R. Co., Case No. 4,827.]</p> <p>[See Osborn v. Bank of U. S., 9 Wheat. (22 U. S.) 810; Pacific Railroad Removal Cases. 115 U. S. 1, 5 Sup. Ct. 1113.]</p>

At law. Assumpsit [by the Bank of the United States] against [John M. Moore] the indorser of Josiah Meigs’s note for $250, indorsed in full to the president, directors, and company of the Bank of Columbia, but not indorsed by that bank to the plaintiffs. Attire trial, the plaintiffs’ counsel, Mr. Dear, without the knowledge of the defendant or the leave of the court, erased the words written over the name of John D. Moore, the in-dorser, so as to leave it a blank indorsement.

Mr. Marbury, for the defendants, the heirs of David Peter, moved the court to order the interest of the proceeds of the sales of the lands and lots to be paid to the heirs, because if they had not been sold, they would have been entitled to receive the rents and profits until a sale under the will of David Peter.

[At law. Action by the president, directors, and company of the Bank of the United States against Thomas Q. Roberts and Henry H. Roberts to recover upon a bill of exchange. On demurrer to the declaration.

At law. Assumpsit [by the Bank of the United States] against [Joseph Smith] the indorser of Bichard Young’s promissory-note, at sixty days, for $506.44, dated 17th May, 1817, payable to the defendant, or order, at the office of discount and deposit, at Washington.

At law. Ejectment [by the lessee of the Bank of the United States against John P. Van Ness and William Jones] for lots 6 and 7 in the square 226 in the city of Washington.

<p>[At law. Action of ejectment by the Bank of the United States against John Voorhees and others.</p>

At law. Assumpsit [by the Bank of the United States against George C. Washington] for money had and received by an oVerdralt paid by the bank by mistake, owing to wrong addition. The plaintiffs proved all the debit side of their account which consisted of checks drawn by the defendant and paid by the plaintiffs. They proved also that it was their usual practice to pay according to the apparent funds in their leger without examining further into the actual state of the funds.

At law. Assumpsit [by the Bank of the United States against Brooke Williams, administrator of William B. Williams] for money had and received by the defendant’s intestate, as second teller to the plaintiff’s use.

<p>Judgment Lien—Subrogation.</p> <p>1. The lien on lands created by a judgment is given by the statute, which authorizes an elegit, and the lien depends upon the right to sue out an elegit.</p> <p>[Cited in Shrew v. Jones, Case No. 12,818; Ee Boyd, Id. 1,746; Massingill v. Downs,. 7 How. (48 U. S.) 765; Morsell v. First Nat. Bank, 91 U. S. 360.]</p> <p>[See U. S. v. Morrison, 4 Pet. (29 U. S.) 124; Burton v. Smith, 13 Pet. (38 U. S.) 464.]</p> <p>2. Where money is paid by a surety for his principal, the surety is subrogated to all the rights of the creditor whose debt he has discharged. But quaere—Is this ever done in fa-vour of a person not bound by the original security, who discharges it as a volunteer?</p> <p>[Cited in Dooley v. Virginia Fire & Marine Ins. Co., Case No. 3.999.]</p> <p>3. The lien of a judgment on which execution is stayed, dates, not from the rendition of the judgment, but from the time when execution may be sued out. Scriba v. Deanes, [Case No. 12,559.]</p>

[Action by Bank of United States against Frederickson. Defendant moves for “a rule to show cause why process issued in the case should not be set aside, with costs,” in accordance with Act Pa. March 26, 1814, § 14. [It is provided by Act Pa.

At law. Assumpsit [by the Bank of Washington against the Bank of the United States] for money had and received to the plaintiff’s use, to recover back money paid upon an erroneous judgment. [Judgment for plaintiff. This was afterwards reversed by the supreme court in Bank of U. S. v. Bank of Washington, 6 Pet. (31 U. S.) 8. See note at end of case. For other opinions connected with this litigation, see Bank of Washington v. Trip-lett, 1 Pet.

<p>Case No. 950.</p> <p>Evidence—Primary and Secondary.</p> <p>Parol evidence cannot be given of the contents of a letter from the notary public to the defendant, put into the post-ofiiee, without previous notice to the defendant to produce it.</p> <p>[Cited in Underwood v. Huddlestone, Case No. 14,339.]</p>

At law. This was an action for money bad and received, to recover back money paid upon a judgment afterwards reversed for error.

At law. Scire facias, to revive a judgment rendered at June term, 1818.

At law. Assumpsit [by the president and directors of the Bank of Washington] against [Joseph Peirson and R. Y. Brent] the executors of [R. Brent] the indorser of T. L. Washington’s notes.

At law. The defendant was indorser of J. Huddleston’s note at sixty days. Huddles-ton died before the note became payable. The notary, on the day after the third day of grace, called at his last dwelling place and demanded payment of his widow, who replied she had nothing to do with the settlement of the estate. The notary did not know whether there was an executor or an administrator; the defendant having offered no evidence that there was any administration upon the estate.

[At law. Suit by the president and directors of the Bank of Washington against John Walker on a promissory note. Tried by jury. Verdict and judgmént for plaintiff. The defendant, by writ of error, subsequently took the case to the supreme court, where the judgment was affirmed in Walker v. Bank of Washington, 3 How. (44 U. S.) 62.]

<p>[At law. Suit by the Bank of Washington against Henry Walker on a promissory note. Tried by a jury.</p>

At law. This was an action against an indorser of a promissory note made and signed by “John McGowan, Agent,” for $3,000, payable originally at sixty days, to be discounted by the plaintiffs to raise money for a mercantile adventure in which all the parties upon the note were jointly interested.

<p>Case No. 958.</p> <p>Bankruptcy—Discharge — Fraud — Objections to Decree—Books of Account.</p> <p>1. Objections which might have been urged to show that a decree ought not to have been granted, will be considered waived after the •court have declared the petitioner a bankrupt.</p> <p>2. To make out a ease against a bankrupt to justify the court in refusing him his discharge and certificate, there must appear by indisputable evidence some act of fraud, willful concealment of property, &e., or facts, from which such a deduction would be plain and palpable.</p> <p>3. It is not put upon the bankrupt to show that he has kept proper books of account, &c., it is for the creditor, impugning his right to a discharge and certificate, to make out, by satisfactory proof, such a case as will bar the bankrupt’s right to an allowance thereof.</p>

[At law. Action of debt by Banks against Greenleaf. Heard on demurrer to plea. Some years past, Greenleaf, a citizen of Maryland, became indebted, by bond given in Virginia, to Banks, a citizen and inhabitant of the state of Virginia. Afterwards, Green-leaf took the benefit of the bankrupt laws of Maryland; and being arrested for the foregoing debt in this court, he pleaded the discharge, under the bankrupt laws of Maryland, in bar of the claim.

<p>[In equity. Bill by David Banks and others against John B. McDivitt and others for a provisional injunction restraining an Infringement of copyright.</p>

At law. Assumpsit [by Banks, an insolvent, for the use of his trustee, against George and A. King] for goods sold; non assumpsit, and discount pleaded in bar. The defendant offered to set off a note made by the plaintiff to John Tern pieman, and by him indorsed in blank. objected that it did not appear at what time the note came to the hands of the defendants, and that the precise time must be proved. Dickson v. Evans, 6 Term B. 57.

<p>[Appeal from the district court of the United States for the southern district of New York.</p> <p>[In admiralty. Libel by Simon Banks against the steamboat Metropolis for collision. The district court gave a decree for libellant, (unreported.) Respondent appeals.</p>

At law. This was an action [by Conrad N. Bannendahl] against [Hernán J. Redfield] the collector of the port of New York, to recover back a penalty of 50 per cent., imposed under § 17 of the act of August 30, 1842, (5 Stat. 564,) for the undervaluation of goods, and paid under protest. The plaintiff claimed to have been the manufacturer of the goods, and insisted that, for that reason, no penalty could be imposed on them under that section.

<p>Case No. 965.</p> <p>Prize—Violation of Blockade.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

[In admiralty. Libel in personam by Alexander S. Banta against Alexander McNeil, owner of the bark Maggie Mitchell, to recover half pilotage, under the pilot act of New York. Decree for libellant. Subsequently the petition of Alexander McNeil for a writ of prohibition to the judges of the district court was dismissed by the supreme court in Ex parte McNeil, 13 Wall. (80 U. S.) 230.]

<p>[In equity. Bill by Gideon Bantz against Jacob Elsas and others for infringement of patent No. 20,616. Decree for complainant.]</p>

<p>[At law. Action of ejectment by the Baptist Missionary Union against Israel Turner.]</p>

[At law. Action by Barbee against Willard and French on a contract for the dissolution ' of a copartnership. Heard on demurrer to the declaration. Demurrer sustained.]

<p>Case No. 974.</p> <p>Charter Partt—Antecedent Verbal Agreement.</p> <p>[1. By the execution of a charter party, all antecedent verbal agreements inconsistent with its terms are waived, and the charter party becomes the only competent evidence of the contract between the parties.]</p> <p>[2. By a charter party dated October 3, 1848, but not signed until October 23d or 24th, when bills of lading were signed and delivered by the master, it was stipulated that the charter should commence “when the vessel is ready to receive cargo at her place of loading, and notice thereof is given” to the charterers. The charterers brought action for damages by way of demur-rage, alleging that respondent agreed when the charter party was entered into that the vessel should be ready to receive cargo on October 7th. The vessel was not ready to receive cargo until October 14th or 17th, the respondent having before the latter day given the charterers notice that the vessel was ready. Held, that the charter party was the only competent evidence of the contract between the parties, and that, as the charterers had failed to prove a breach thereof, they could not recover.]</p>

<p>Case No. 972.</p> <p>[Cited in Re Carr, Case No. 2,432, and Waters v. Campbell, Id. 17,265.]</p>

<p>At law. This was an ejectment [by the lessee of R. H. Howell against Barclay, Florence, and Cotter, officers of the corporation of Pittsburg] to recover a messuage, lot, piece or parcel of land, lying between Water street and. the Monongahela river in the city of Pittsburg. [The action was begun in the district court for the western district of Pennsylvania, and removed to this court, under Act March 3, 1821. Heard on objections to evidence. Objections sustained. Verdict for plaintiff. Motion for new trial denied, and judgment on the verdict. This was reversed by the supreme court in Barclay v. Howell’s Lessee,- 6 Pet (31 U. S.) 498. See note at end of case.]</p> <p>The title of the lessor was regularly deduced from Alexander Wilson, to whom the late proprietaries (the acknowledged owners of the manor of Pittsburg, of which the city of Pittsburg and the ground in question, made a part), on the 20th of September, 1814, conveyed all the ground in the above city, lying between Water St. and the Monongahela river. It appeared in evidence that, on the 22nd April, 1784, Mr. Francis, the agent and attorney in fact of the Penns, employed George Woods, a deputy surveyor, to lay off the town of Pittsburg. This duty he performed on the 31st of May, 1784, and returned to Mr. Francis a plan of the town, which he approved of and confirmed on the 30th of September, in the same year. On the diagram representing the survey or plan of this town was written, by Mr. Woods, the words “'Water Street” on a space extending along the south front of the row of lots facing the Monongahela from Grant street to the junction of that river with the Allegheny river. This space was of different widths, from about 219 feet at Grant street to about 108 feet at West street, its breadth further west not being shown; and it extended from the row of lots before mentioned, to the Monongahela river, embracing a space of table land from 70 to 80 feet wide in the broadest part, to a few feet in the narrowest, and also embracing a steep bank of the river, and the river beach, which in time of freshes was nearly or quite covered with water.</p> <p>The town, now city, of Pittsburg, was incorporated as a borough by an act of assembly passed in the year 1804, with the usual powers and privileges, and by various ordinances of the corporation, commencing in the year 1816, that body exercised acts of ownership over this slip of land bounding on the river, by authorizing the erection of wharfs, exacting tolls from all persons landing goods on the beach, etc.</p> <p>The plaintiff gave in evidence a written agreement between the agent of the' Penns and Craig & Bayard, by which the former agreed to sell and convey a certain parcel of the ground, afterwards embraced in Wood’s plan of the town, lying in a point formed by the junction of the rivers Allegheny and Monongahela bounded on two sides by the said rivers, and on the third by the fosse of Fort Pitt. On the 31st December, 1784, a deed was executed by this agent to the said Craig & Bayard, for 32 lots, as marked and numbered in Wood’s plan, bounded southerly by the Monongahela river; and on the 2d October, 1784, another deed was made to John Ormsby for two lots bounded by Front street on the north, and on the south by the Monongahela. A number of deeds from the Penns to different persons were given in evidence, bearing different dates, subsequent to the year 1784, for lots fronting the rivers Monongahela and Allegheny, the former bounding southerly on Water street, and the latter, on the river, no street having been marked between the lots fronting on that river and the river. Amongst other evidence offered by the defendant’s counsel, was the deposition of Samuel Ewalt, for the purpose of proving various declarations of George Wood's, at the time he was engaged in laying off the town of Pittsburg in relation to Water street. This was objected to, as hearsay evidence of parol declarations to explain or to contradict a written instrument, by an agent acting under a limited authority to lay off the town, and nothing else. Cases cited: 1 Serg. & R. 526; 4 Serg. & R. 298; 4 Yeates, 100; 1 Yeates, 284; 2 Smith’s Laws, 256, note; 3 Bin. 175; Mayo v. Murchie, 3 Munf. 358. On the other side were cited: 1 Pet. C. C. 205, [Wright v. Deklyne, Case No. 18,-076;] [Mechanics’ Bank of Alexandria v. Bank of Columbia;] 5 Wheat. [18 U. S.] 336; 8 Johns. 508; 16 Serg. & R. 396.</p>

<p>At law. This was an action to recover the balance of a stated account, sent by the plaintiffs, [Barclay & Co.,] merchants of London, to the defendants, [Kennedy & Co.,] of Philadelphia, in 1803. The plaintiffs and defendants had been for some years engaged in a commercial intercourse; the former purchasing and shipping goods, and making advances to the latter; and receiving from them, in return, remittances in various ways. The usage between these parties, was for the plaintiffs to state the accounts between them, generally, annually; sometimes, semi-annually, charging interest on the balance, on whichever side it might be, and adding it to the balance of principal, to bear interest from the day on which the account was so stated. These accounts, presenting a balance with the interest added to it, sometimes in favour of the defendants, and sometimes in favour of the plaintiffs, were regularly transmitted to the defendants, who never, until at the trial of this cause, objected to the mode of adding the interest to the principal. The plaintiffs examined one witness, who deposed, that the uniform usage of the trade, between the merchants of London, and of this place, in transactions of this kind, was to transmit their accounts at the end of the year, and sometimes of tener; and to add the interest to the balance, as part of the principal on which aggregate interest is charged.</p> <p>This mode of charging the interest, was objected to by Rawle and Dallas, for the defendants, who relied on the rule laid down by this court, in the ease of Smith v. Shaw, [Case No. 13,107.]</p> <p>Binney and Tilghman, for the plaintiffs, contended, that the above case did not apply to one where a different mode of charging the interest was agreed upon between the parties, or was affected by the usage of the trade, which was tantamount to an agreement. That compound interest was not forbidden by the statute of usury; and, if agreed to by the parties, could not be impeached upon the ground of contract. That the transmission of accounts, by the plaintiffs to the defendants, at regular periods, with the interest added to the balance,—retained by the defendants, without objection,—was evidence of an agreement to make the interest principal; and that the usage, independent of such implied agreement, was tantamount to it. They cited 2 Yes. Jr. 15; 9 Yes. 223.</p>

Action at law [by James M. Barclay against the board of levee commissioners and the police juries of Madison and Carroll parishes, La.] Heard upon motion to dismiss the petition [for removal.

<p>[In equity. Suit by John Barclay and Edward C. Knapp against Oscar S. Thayer and Peter B. Cushman for infringement of patent.</p>

[At law. Ejectment by lessee of Barger, against Miller.] The lesser of the plaintiff claimed under a warrant and survey, dated in 1701, in the name of Daniel Falkner, styled the agent for the German purchasers, for upwards of twenty-two thousand acres, and a conveyance by Falkner in 1708, of the whole tract to J. H. Sprogle. The lessor of the plaintiff is one of the heirs of Sprogle, and claims one fifth of one eighth of the whole of the above tract.

<p>Case No. 980.</p> <p>Courts—Jurisdiction—Diverse Citizenship.</p> <p>1. The citizenship of a person not served with process, wh'o is a joint promissor, must appear in the declaration.</p> <p>[See Smith v. Clapp, 15 Pet. (40 U. S.) 125.]</p> <p>[Distinguished in Bank of Circleville v. Igle-hart, Case No. 860.]</p> <p>2. If he be a citizen of the same state as the plaintiff, the court can take no jurisdiction.</p>

<p>[In equity. Bill for an injunction by Alexander Baring and Ann Baring, in right of the said Ann, and Henry Baring and Maria Baring, in right of the said Maria, all aliens and subjects of the king of the United Kingdom of Great Britain and Ireland, against Frederick Erdman and William Williams, both citizens of the state of Pennsylvania. On motion for an injunction pendente lite.</p> <p>This was a bill in equity, praying for an injunction to restrain the respondents from proceeding in the erection of a dam, digging a trench, and diverting and using the water of a stream, on the estate of the complainants, called “Lansdowne,” in the immediate neighborhood of Philadelphia. It appeared that the respondents were superintendents and agents under the board of canal commissioners, by whom they were directed to execute the works complained of, in order to supply the locomotive and stationary engines on the inclined plane with the necessary quantity of water. The motion for an injunction was resisted; affidavits on both sides were taken, and the case fully argued.</p>

<p>Case No. 982.</p> <p>Judgment—Evidence.</p> <p>1. A judgment or decree of a court can be used as evidence in another suit only as against parties and privies; and if in the second suit there are new parties, against whom the judgment could not have been used, had it been adverse, they cannot introduce it in their fa-vour.</p> <p>[See Patterson v. Gaines, 6 How. (47 TJ. S.> 550; Gregg v. Forsyth. 24 How. (Go TJ. S.) 179; Barr v. Gratz, 4 Wheat. (17 U. S.> 213; Drummond v. Prestman. Í2 Wheat. (25 U. S.) 515; Fellows v. Pedrick, Case No. 4.724; Davis v. Forrest. Id. 3,634,—as to the exceptions to this rule.]</p> <p>2. And it makes no difference that the new parties, as assignees of a chose in action, are endeavouring, together with the assignor, to enforce the same right that was established in the former suit in favour of the assignor.</p> <p>3. And in such a case, where a court of chancery had ordered an account, and made a decree thereupon in favour of the assignor, it was held not to be a matter decided ex directo, by a court of competent jurisdiction, so as to bring it within the exception to the general rule.</p>

At law. Assumpsit [by Francis Baring and others, comprising the firm of Baring Bros. & Co., against Theodore Lyman, as executor of T. Lyman, deceased] for the recovery of money, viz., five hundred pounds sterling, claimed as due to the plaintiffs for commissions, at the rate of two per centum, upon twenty-five thousand pounds, alleged to have been drawn for by Robert B. Forbes, in bills upon them, under a letter of credit, given by them to the defendant’s testator, dated 7th…

Action at law heard by the court upon an agreed statement of facts. The plaintiffs, [Thomas Baring and others,] who were foreign bankers having accounts with Charles Thompson of Kennebunk, Me., and also with Charles Thompson of Topsham, Me., by mistake, credited on their books to Charles Thompson of Topsham, the defendant’s intestate, a considerable sum received by them, instead of to Charles Thompson of Kennebunk, to whom it belonged.

[In equity. BUI by Alexander Baring, Henry Baring, and others against Thomas M. Willing and Charles Willing Hare to confirm the appointment of an agent nominated by the trustees under the will of William Bing-ham, other than the defendant trustee Hare.

[Appeal from the district court of the United States for the district of Louisiana.] In bankruptcy. This was a bill in equity-filed in the district court [by Abraham Barker against the assignee of Jacob Barker, a bankrupt, Samuel Smith, and others, to set aside a sale by the assignee to the defendant Smith,] and brought to this court by appeal-The case was submitted to the circuit court upon the pleadings and evidence for'final decree.

In equity. Bill of review [by the heirs of Elizabeth Barker against the assignee of Jacob Barker, a bankrupt.] Heard for final decree on bill, demurrer, plea and answer of defendant. The bill of review was filed for the purpose of reversing what was alleged to be an erroneous decree of the district court, after the time for appeal had passed by.

[At law. Action of ejectment by Barker against Dale.] On the 8th day of December, 1865, Alanson Clark leased to the plaintiff the land in dispute by written lease “for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil, or other valuable mineral and volatile substances; * * * to have and to hold the said premises for the said purposes only, unto the said Barker, his heirs, executors, administrators and assigns, for 25 years ensuing the…

At law. This was an action of ejectment brought [by Henry and others against Joseph Barker] to recover the possession of a part of lot number twelve, in the township of Hector. The premises were originally granted by the state as military bounty lands.

At law. On September li, 1871, Abner H. Barker commenced an action in this court against William S. Ladd, John C. Ainsworth, Simeon G. Reed and Robert R. Thompson, for the recovery of $55,860.96 damages, alleged to have been incurred by him in the sale of his stock in the O. S. N. Co. by reason of the misrepresentations of the defendants concerning the same, while acting as directors of said company, and died on March 14, 1872; and on April 6, 1874, Joseph Simon was duly…

<p>Case No. 991.</p> <p>Customs Duties—Goods Obtained bt Barter— Appraisal by Deputt Appraiser.</p> <p>[1. Under the customs duties acts of 1842 (Aug. 30; 5 Stat. 548) and 1846, (July 30; 9 Stat. 42.) the principal appraisers _must act in person, and upon their own inspection, in every case; and an appraisal made by them on the inspection and certificate of a deputy appraiser only is inoperative and void.]</p> <p>[Distinguished in Focke v. Lawrence, Case No. 4.894.]</p> <p>2. In an action to recover back customs duties illegally exacted, it appeared that the importation consisted of goods obtained by barter on the west coast of Africa, for which the master, who had no invoice, made one after his arrival in port, which invoice was received by the customs officers. The deputy appraiser inspected the invoice, and from his knowledge of the articles imported, but without instructions, added more than ten per cent, to the invoiced value, and a penalty of twenty per cent, was consequently added and exacted. The deputy sent the invoice to the regular appraisers, two of whom sanctioned it by endorsement; and in this condition it was returned to the collector, who assessed the duties and imposed the penalty. Held, that the appraisal was void as being the act of the deputy and not that of the principal appraisers.</p>

At law. Assumpsit [by James Barker against Marine Insurance Company] on a policy of insurance dated the 2d of June, 1S21, whereby “Robinson Potter for account of James Barker, or Robinson Potter, or both, made assurance,” &c. “lost or not lost, arrived or not arrived, 4000 dollars, at and from Bristol in England, to a port of discharge in the United States, on cargo on board the brig Tom Hazard.” The loss alleged was a total loss by the perils of the sea, in foundering at…

At law. This was an action of trover and conversion, to recover the value of a vessel, pledged by plaintiff with defendant to secure a sum of money loaned. The vessel, after the pledge, and whilst lying in the state of Delaware, where she was at the time she was pledged, was sold under a judgment rendered by a magistrate of that state, upon an attachment of a Mr. Long against the plaintiff, and was purchased by the defendant.

[In equity. Suit by William C. Barker against Deloraine P. Stowe, and by the same against Abner C. Newhall, for infringement of reissued letters patent No. 6,531. Bills dismissed. Motions to vacate decrees and reopen causes denied in Same v. Same, Case No. 995.]

[In equity. Suits by William C. Barker against Deloraine F. Stowe, and by the same against Abner H. Newhall, for infringement of reissued letters patent No. 6,531. The bills were dismissed on the trial, (see Barker v. Stowe and Same v. Newhall, Case No. 994;) and plaintiff now moves to vacate the decrees, and reopen the causes for the admission of further evidence.

[At law. Action by James Barker against William B. White to recover the amount of an internal revenue tax paid by plaintiff under protest to the defendant, as collector. Judgment for plaintiff.]

At law. This was an action on the case under the statute by Patrick Barley, administrator of the estate of Benjamin Barley, deceased, [against Chicago & Alton Railroad Company,] to recover damages for the death of said Benjamin by the alleged negligence of the defendant. The statute) of Illinois is as follows: Ҥ 1.

In bankruptcy. [Petition by Sigmund Rothschild, assignee of a chattel mortgage made by Abram and William Barman to Barnard Barman August 9,1873, filed December 8, 1873, but possession not taken thereunder until January, 1874, to compel the assignee in bankruptcy of Abram and William Barman to pay over the proceeds realized by sale of the mortgaged property. The bankruptcy proceedings were commenced Feb. 5, 1874.

<p>Case No. 998.</p> <p>Statute op Limitations—Written Acknowledgment.</p> <p>The statute of Kansas respecting the written acknowledgment, required to take a case out of the statute of limitations, construed and applied.</p>

<p>Case No. 1,001.</p> <p>Measure of Damages—Contract of Sale.</p> <p>1. Where a person has agreed to deliver a quantity of lumber at specified prices, and he fails to comply with his contract, the plaintiff is entitled to recover in damages the difference in price between the lumber contracted for, and the market price at the place of delivery.</p> <p>2. If the market price at the place of delivery was as low, or lower, than the price agreed to be paid in the contract, the plaintiff will be entitled to no damages. The rule is, that no damages can be recovered where none have been sustained.</p>

<p>[In equity. Bill by George M. Barnard, Charles S. Bradley, and Charles R. Chapman, assignees in bankruptcy of the Boston, Hartford & Erie Railroad Company, against the Hartford, Providence & Fishkill Railroad Company, George M. Bartholomew, Calvin Day, and Francis B. Cooley, trustees under a mortgage of the property of said railroad in Connecticut, certain trustees under a mortgage of the property of said railroad in Rhode Island, and William F. Hart and other trustees under a mortgage of all the property of the Boston, Hartford & Erie Railroad Company; praying that the plaintiffs might redeem the Connecticut mortgage, of which the bankrupt road had the equity of redemption. Pendente lite, Hart and his cotrustees, their mortgage having been foreclosed; conveyed to the New Xork & New England Railroad Company all their rights, including the equity of redemption of the Connecticut mortgage, which company subsequently acquired all the title of the assignees in bankruptcy, and was thereafter made a party defendant. A motion by Bartholomew and his cotrustees to dismiss the bill for lack of jurisdiction had been overruled. Heard on a cross bill by the New Xork & New England Railroad Company, praying that it might redeem the Connecticut mortgage, and have its title quieted. Decree for cross complainant, saving the rights of the stockholders of the Hartford, Providence & Fishkill Railroad Company.]</p>

At law. This was an action for money had and received [brought] by [George M. Barnard and others, composing the firm of] Barnard, Adams & Co., against Marcus Morton. late collector of the customs for the port of Boston, to recover a sum of money alleged to have been illegally exacted as duties.

<p>At law. This was an action against the col-</p> <p>lector of the port of Boston.</p> <p>The case came before the court upon a statement of facts, by which it appeared that two invoices of Havana sugars -were consigned to the plaintiffs, by merchants residing at Halifax, N. S., subject to an ad valorem duty of 30 per cent. That upon arrival, they were appraised for the assessment of duties, by adding to the market value in Cuba, the charges incurred there, freight from there to Halifax, and the charges at Halifax. The plaintiffs, considering this mode of valuation unauthorized by law, paid the duties assessed, under protest, and brought this action against the col-, lector, to recover so much as was unlawfully demanded.</p> <p>contended, that upon a proper construction of the statute, August 30, 1842, § 1G (5 Stat 563,) the valuation for the assessment of duties, when goods were imported from a place other than that of production or manufacture, should be the market value in the principal market of the country of production or manufacture, at the time of the exportation to the United States, with the addition of the charges at the place of such exportation, or otherwise at the place of production; and that in neither case, should the freight to the intermediate port be added. So that in the present case, the sugars should be taken at their value in Cuba, at the time they were shipped from Halifax, and to this should be added, for the assessment of duties, only the charges at Halifax, or at the place of shipment in Cuba.</p> <p>rested the defence principally upon the instructions of Mr. Walker, when secretary of the treasury, and subsequent confirmatory directions of Mr. Meredith, to whose attention the case was early presented by the plaintiff.</p>

[In equity. Bill by George M. Barnard, Charles S. Bradley, and Charles R. Chapman, assignees in bankruptcy of the Boston, Hartford & Erie Railroad Company, against the Norwich & Worcester Railroad Company, W. T. Hart, G. T. Oliphant, and C. P. Clark, trustees under a mortgage of the property of the Boston, Hartford & Erie Railroad Company, praying that respondents account for all moneys and profits received by them as lessees and managers of the property of the Norwich &…

<p>Case No. 1,009.</p> <p>Bankruptcy—Amendments to Law—Retroactive Effect.</p> <p>[1. The amendment of the bankrupt law approved June 22, 187.4, (18 Stat. 178,) provides that the petition filed in involuntary bankruptcy proceedings shall show that one-fourth in number and one-third in amount of all the creditors join in the petition, failing which the proceedings shall be dismissed; and that this provision shall apply to all cases commenced since December, 1873. Held, that this does not include eases in which the order adjudicating the debtor a bankrupt had been passed before the adoption of the amendment, and hence such proceedings will not be dismissed under this section.]</p> <p>[2. But in so far as the amendment of June 22, 1S74, affects any remedies not ripened into fixed rights before its adoption, they will be applied to cases in which the adjudication was passed before their adoption, as well as those since made.]</p>

<p>This was an application by the marshal to be allowed certain fees for bringing witnesses from jail. The point raised in the case will appear from the opinion of the court.</p>

<p>Case No. 1,011.</p> <p>Customs Duties—Remission of Forfeiture— Entry of Decree.</p> <p>1. A suit was commenced by the United States against Y. & Co., to recover the value of goods alleged to have been entered by them in violation of the 1st section of the act of congress of March 3, 1803. [12 Stat. 737.] While it was pending, proceedings in bankruptcy were commenced against V. & Co., and B. was appointed assignee. Thereafter the attorney for V. &. Co. in that suit withdrew a plea in bar and filed a cognovit that judgment be entered, and it was entered accordingly for $99,951.25. At the first meeting of creditors, the United States district attorney appeared and filed a proof of debt, setting forth that judgment. The assignee excepted to the proof and on the matter being certified to the court, it was held that</p> <p>.the claim was provable in bankruptcy, on the basis of the facts out of which the liability arose. The matter was referred to the register to take proof of the validity and amount of the claim. He reported, and on the 18th of August, 1874, the judge decided, that the United States was entitled to prove for the amount of the claim. No formal order to that effect was signed by the judge, but a minute to that effect was endorsed by him on the papers, and from that decision the assignee appealed to the circuit court, which affirmed the decision. The assignee then filed a petition for remission, and an order was made, referring it to a commissioner to inquire as to the facts of the case. After this order a formal order was entered nunc pro tunc, in conformity to the minute of the district judge of August 18th, 1874. The commissioner having made his report, and the same having been certified to the secretary of the treasury for decision, and having been by him returned to the commissioner for revision, the United States district attorney moved for an order dismissing the proceedings on the petition for remission, claiming that it was not competent for the secretary of the treasury to give a remission in the case. Bold, that, the court having been informed by the judge, before whom the petition for remission came, and by whom the order of reference to a commissioner was made, that substantially the same ground was then taken by the district attorney and overruled by the court, that ruling, having been submitted to and never reversed, must be regarded as the settled law of the court, or at any rate, of the case.</p> <p>2. That it made no difference that since that time the order had been entered nunc pro tune on the minute of the judge, of August 18th, 1874.</p> <p>3. That that minute under the circumstances of this case was to be held to have the same effect as if the order had been then entered on it.</p> <p>4. That the motion to dismiss the petition must be denied.</p> <p>5. The district attorney also moved that the petitioner be compelled to make the record of the case a part of his petition. Bold, that the United States might prove the facts embodied in the record, but that this motion also must be denied.</p>

<p>[In bankruptcy. In the matter of H. F. Barnes.</p>

[In bankruptcy. In the matter of Barnes, Brother & Herron.] Exceptions to report of register, (Parsons). 1. J. E. Johnston & Co. proved .a claim against the bankrupts;' said claim was composed of two items: First, a merchandise account; secondly, an accommodation note for $1,573. After the failure of the bankrupts, and with a knowledge of that fact, J. E. Johnston & Co. accepted certain payments,, amounting to over $1,400, on account of said accommodation note.

In equity. This was a bill in equity by Hannah and Susan Duryee, the heirs of John Barnes, late of Georgetown, D. C., against his executors and the corporation of Georgetown, to set aside certain legacies and trusts, given and created by his will. The will is dated 12th March, 1825, and the testator died on the 12th of February, 1826.

<p>Case No. 1,015.</p> <p>Act of Bankruptcy — Concealed Debtor—Service of Process — Confession of Judgment — Execution—Levy—Lien.</p> <p>1. A debtor concealing himself from, and being denied to his creditors, does not constitute an act of bankruptcy under the laws of the United States, unless the service of process is thereby prevented.</p> <p>2. If the debtor order himself to be denied to creditors and others, and is in consequence thereof denied to an officer who comes to serve process, it is an act of bankruptcy; provided the officer comes to serve the process and not on other business, and the denial has taken place within six months of the issuing of the commission.</p> <p>3. Giving a bond with warrant to confess judgment, to one creditor, upon the eve and in contemplation of bankruptcy, does not constitute an act of bankruptcy; unless the judgment entered on the bond, and the issuing of the execution was at the instance or by the procurement of the debtor. Such a bond would be a fraud on the general creditors.</p> <p>4. Denial to an officer, whereby he is prevented serving process, must be really adversary, and not by concert between the creditor and the debtor to bring about an act of bankruptcy.</p> <p>5. An execution executed upon the estate of the debtor previous to an act of bankruptcy, gives a lien to the execution creditor, provided the levy be real and bona fide.</p> <p>[See Haughey v. Albin, Case No. 6,222; Goddard v. Weaver, Id. 5.495; Witt v. Hereth, Id. 17,921; In re Wilbur, Id. 17,633; Webster v. Woolhridge, Id. 17,340: In re Bernstein, Id. 1,350; In re Burns, Id. 2, 1S2.]</p> <p>[6. The effect of a seizure under an execution is to change the property in the goods, and vest it in the sheriff.]</p> <p>[Cited in Bayard v. Bayard. Case No. 1,129; Thompson v. Phillips, Id. 13,974.]</p> <p>7. An execution is not levied so as to give a lien against purchasers or creditors, if the property is permitted to remain with the debtor. The lien is lost by suffering the property to remain with the debtor as his own until a subsequent execution is levied, or a bona fide sale is made.</p> <p>8. To make a levy effectual, the property seized should be specially designated in the return of the execution, or by reference to a schedule accompanying it.</p> <p>9. When a certificated bankrupt, and who has released all future claims upon his estate, is a competent witness.</p>

[At law. Action by John Barnes against David Easton. The hearing is now by the court on a plea of nul tiel record to a] scire facias against Mr. [Edmund J.] Lee, as especial bail for David Easton. [Interlocutory judgment for Lee. The writ was thereafter quashed, with leave to amend the record. Barnes v. Lee, Case No. 1,018.] E. J. Lee and F. Lee, for defendant, cited the following authorities:—Com.

In equity under the auxiliary jurisdiction conferred by the bankrupt law. The bill, at the suit of the assignee in bankruptcy, of partners who had, within six months before the commencement of the proceedings, made a voluntary assignment to the defendant of all their estate in trust for the equal benefit of all their creditors, prayed an injunction, &c., and a final decree setting aside the assignment.

<p>[At law. Action on a bill of exchange by Barnes and Robinson against Ryder & Co. and others. Heard on demurrer to pleas.</p>

[Appeal from the district court of the United States for the eastern district of Pennsylvania. [In admiralty. Libel for collision by Barnes and others» owners of the schooner Pequonnoelc, against Steamship Company, owner of the steamer Westchester. Maltritz, Baird & Company, owners of the steamer’s cargo, brought suit, and attached certain policies of insurance which were paid into-court.

<p>[In equity. Bill by Prances Barnes, executrix of Samuel H. Barnes, deceased, against Ferdinand Straus, for infringement of letters patent.</p> <p>[Pinal hearing on pleadings and proofs. Suit brought upon letters patent for an “improvement in corset-springs,” granted to Samuel H. Barnes, July 17, 1866; reissued to plaintiff as executrix of said Barnes, May 12, 1868; again reissued June 29, 1869; and again August 31, 1869. The nature of the invention and claims are fully set forth in the opinion.</p> <p> </p> <p>[In the foregoing engravings, B represents the lower plate, and B the upper; the two being connected by pins in slots, a, and the two parts of the corset-spring being connected by clasps, C, and buttons, D.]2</p>

<p>[In bankruptcy. In the matter of Joseph Barnett.]</p>

[Appeal from the district court of the United States for the district of Massachusetts. [In admiralty. Libel by Andrew Barnett against Daniel B. Luther for assault. The district court gave a decree for respondent, (unreported.) Libellant appeals. This was an appeal from the district court by the libellant, in a cause of damage.

[At law. Action by the Muncie National Bank of Muncie, Ind., against David Barnett, the drawer, Barnits & Whitesides, acceptors, and Robert Marshall, the payee and indorser, of a bill of exchange for $4,000. dated November 18, 1873. David Barnett and Isaac E. Craig, assignees of Barnits & Whitesides, intervened. Heard on demurrer to the defenses and cross-petitions of the several defendants.

[In bankruptcy. Proceedings by Henry Barnewall and William C. Ga.vnor, assignees of Crawford, Walsh, Smith & Co. and Walsh, Smith, Crawford & Co., and others, against William G. Jones, William D. Dunn, and James Crawford, to recover property passed by assignment by Crawford to Dunn and Jones, in trust—First, for the benefit of his creditors; and. second, for the benefit of the -creditors of Crawford, Walsh, Smith & Co. and Walsh, Smith.

In admiralty. The libellant built this schooner and afterwards sold her to Peter Weber and Edwin Churchill, taking a chattel mortgage for the principal portion of the purchase money, leaving the mortgagors, the purchasers, in possession. They ran the vessel during the season of 1857; and in the month of November of that year, she was stranded on the Michigan shore of Lake Michigan.

[In equity. Bill for partition of land, by Mary Barney against the mayor and city council of Baltimore, William C. Ridgely. and others. Bill dismissed upon consideration of the- merits. Subsequently, on complainant’s appeal to the supreme court, the decree was reversed, and the case remanded to this court, with directions to enter a decree dismissing the bill for want of jurisdiction, and without prejudice. Barney v. Baltimore, 6 Wall. (73 U. S.) 280.]

[Appeal from the district court of the United States for the eastern district of New York. [In admiralty. Libel by David F. Barney against the steamboat D. R. Martin, her tackle, etc., (the Oyster Bay & Huntington Steamboat Company, claimants,) for damages for the ejection of the libellant. Decree for libellant (unreported) for §500. Claimant appeals. Reversed. Subsequently, libellant appealed to the supreme court, but his appeal was dismissed for want of jurisdiction.

At law. This was a suit originally brought In the supreme court of the state of New Toril. The plaintiff [Danforth N. Barney] was a citizen of that state, and the defendants were a corporation [the president, directors, and company of the Globe Bank of Boston] located in the state of Massachusetts.

At law. Action in the nature of ejectment to establish plaintiff’s right in Water street, Keokuk, subject to the public easement therein.

At law. Appeal from a justice of the peace on a judgment for a penalty for running a hack, not licensed. •contended, 1st. That the warrant to take Barney to answer to the “corporation,” (not calling them by their corporate name,) is void. 2d. That the warrant ought to have stated that Barney was a person residing within the jurisdiction of the corporation. relied on the seventh section of the act of congress of May 3, 1802, (2 Stat. 195, charter of Washington,) and on the…

<p>Case No. 1,034.</p> <p>Usury—Penalty—National Banks—Act June 8, 18(54.</p> <p>[The words “legal representatives,” as used in Act June 3, Í864, (13 Stat. Í08, § 30,) providing for the recovery of twice the amount of usurious interest from a national bank by the “legal representatives” of the person paying such interest must be construed strictly, and not to include the assignee in bankruptcy of such person,]</p> <p>[Followed in Barnett v. Muncie Nat Bank, Case No. 1,026.]</p> <p>[Contra, see Wright v. First Nat. Bank of Greensburg, Case No. 18,078, and note to Barnett v. Muncie Nat. Bank. Id. 1,026; same case, on appeal, 98 U. S. 555.]</p>

<p>Case No. 1,035.</p> <p>Equity Practice—Dismissal or Bile with Costs.</p> <p>1. A bill filed which the complainant can not sustain will be dismissed, at his costs.</p> <p>2. No grounds of equity, real or supposed, at the filing of the bill can authorize the court to tax the costs against the defendant.</p> <p>[In equity. Creditors’ bill by Bams & Pharo against C. M. Omally and others. Bill dismissed.]</p>

<p>Case No. 1,036.</p>

<p>Case No. 1,037.</p> <p>Curtesy—Seisin during Coverture—Entry on Wild Land—Profits — Statute of Uses—Adverse Possession — Deed — Presumption—Validity. v</p> <p>1. By the common law seisin during coverture must be shown, to entitle the husband to claim as tenant by the curtesy. To this rule there are certain exceptions.</p> <p>2. The law does not require that to be done which is unreasonable or impracticable.</p> <p>3. In this country an entry on wild land is not necessary, to enable the husband to claim as tenant by the curtesy.</p> <p>[See Davis v. Mason, 1 Pet. (26 U. S.) 503.]</p> <p>4. A perception of the esplees is evidence of seisin, but this is presumed under a deed.</p> <p>5. Under the statute of uses an entry was not essential to a complete title.</p> <p>6. The party who seeks to invalidate or avoid a deed must impeach it. If there was an adverse possession at the time the deed to the defendant was executed, it is incumbent on the plaintiff to show it.</p> <p>7. The court will not presume facts against a deed which, upon its face, has all the legal requisites to make it a valid instrument.</p> <p>NOTE, [from original report.] After the court had made up their opinion in this case, they were informed that the counsel had agreed to continue the cause to await the decision of the state court, in a case in chancery between the parties, which involves the validity of the contract between the heirs of Bradford and the defendant. But as the court had examined the case, and made up their opinion on it, it was thought proper to publish the opinion.</p>

At law. The declaration in this case, was on a judgment obtained by the plaintiffs [Barr and Auchineloss] against the defendant, in the district court for the city and county of Philadelphia, to which there was a general demurrer and joinder in the demurrer. The only question raised was, whether this court had jurisdiction of the case.

Heard upon exceptions of the defendant [David Bidwell] to petition of the plaintiff [Hiram D. Barras] on plaintiff’s motion to strike out defendant’s answer, and on plaintiff’s exception to the defendant’s claim in reconvention.

At law. Action on the case for maliciously causing the plaintiff to be arrested, imprisoned, and held to bail in Baltimore, without probable cause.

[In bankruptcy. Joseph Barrett was adjudicated a bankrupt on the petition of Wynne & Co., of Cincinnati, Ohio. At a meeting of the creditors, Abraham Burlew, Esq., attorney for the petitioning creditors, cast the votes of a majority of the creditors in number and interest for himself for as-signee, by virtue of a power of attorney, duly executed and acknowledged, on behalf of each of the respective creditor firms, by one member thereof.

<p>In bankruptcy.</p>

SUNDAT—USURY. At law. This was an action [by Merriam E. Barrett against Zenas Aplington] on a promissory note for $875. The defendant pleads usury, and that the note was made on Sunday, to which plaintiff demurred.

<p>At law. This was an action of trover, [by Charles Barrett against Nathaniel Goddard,] to recover flfty-one bales of cotton, alleged to have been converted by the defendant on 27 May, 1822. The cotton was part of an importation of eighty-two bales, numbered from 1 to 82, which the defendant had imported from New Orleans, in February, 1822. In the early part of March, the defendant employed a broker (Mr. Peter Coffin) to sell the cotton for him. The broker accordingly sold one half, viz. forty-one bales, consisting of the bales marked with even numbers, to a Mr. Perrin, at the cost and charges, on a credit of six months, with interest from 7th February preceding, that being the time of the purchase at New Orleans. The remaining forty-one bales, consisting of the bales with odd numbers, the broker sold on the 15th March, 1822, to one Silas Bullard, at the cost and charges, on a like credit of six months. At the time of the sale, the whole eighty-two bales were lying in the defendant’s warehouse, near his dweUinghouse in Boston, being piled together without any regard to the numbers. Diming the negotiation for the sale, and as an inducement to the purchase, the broker stated to Mr. Bullard, that the cotton might lie in the warehouse of the defendant, free of storage, as long as Bullard might wish, unless the defendant should want the room for the storage of other goods, which event was not likely to happen until the ensuing summer. Upon the faith of this representation, and the understanding, that Bullard meant to avail himself of this privilege, the bargain was completed. Mr. Bullard gave his note for the amount of the cotton, dated 7th February, 1822, payable to defendant or order in six months, with interest, which was accepted by the broker, who thereupon gave him a bill of parcels, dated 15th March, 1822, which stated the numbers of the bales sold to Bul-lard, and acknowledged a receipt of payment by the note. The note was afterwards received .without objection by the defendant. At the time of the sale, Bullard did not go to-the warehouse of the defendant to examine the cotton, but he bought upon the examination of a few bales, which he saw on the wharf, while it was landing, and of samples of the other bales. The cotton remained in the same warehouse of the defendant, promiscuously piled up, until the month óf June, when Mr. Perrin began to take away, as he wanted them, the bales purchased by him. They were, of course, then separated from the general mass of the bales.</p> <p>On 25tb Hay, 1822, Bullard became insolvent, and stopped payment; and on that day an indenture of three parts was prepared between Bullard of the first part, the plaintiff, who was a creditor of Bullard, of the second part, and Benjamin Rich and others, creditors of Bullard, of the third part; but it was not executed by the plaintiff till the morning of the 27th of May. The indenture conveys to the plaintiff, for the benefit of himself and other creditors, among other things, the forty-one bales of cotton, purchased by him of the defendant, by the description of “41 Bales N. O. Cotton at N. Goddard’s store, Summer street.” The failure of Bullard was not generally known until the morning of Monday, the 27th of May. On the same morning, after the execution of the indenture, the defendant went with the note aforesaid, to Bullard’s countinghouse, and informed him, that in consequence of his failure, he, the defendant, would not deliver the cotton unless the note was paid or secured; and he offered to rescind the sale, and deliver up the note; and he then tendered the note to Bul-lard, who declined receiving it, or doing any thing. Immediately after this interview, and in the same countingroom, the plaintiff saw the defendant, gave him notice of the assignment, and demanded the cotton from the defendant The defendant made the same offer to the plaintiff, that he had made to Bullard, but the plaintiff declined it; and the defendant then refused to deliver the cotton, as the note was unpaid, and said he should not give it up without a lawsuit. The note aforesaid became due since this action was commenced, and has not been paid. Bullard has continued insolvent ever since 27th May.</p> <p>In August, 1822, the broker sold the forty-one bales of cotton in controversy, by the order and on account of the defendant, without any authority from the plaintiff. The cotton, up to the time of the sale, remained in the defendant’s warehouse. The value of the cotton on the 27th of May, the day it was demanded by the plaintiff, was $3,011.60. No other delivery of the cotton took place, than what is to be inferred by law from the preceding facts. At the time of the purchase, Bullard was understood to be at full liberty to take away the cotton when he pleased;, and there was no proposition made that the defendant should retain it as security for the note. Upon this evidence a verdict, was, by consent, taken for the plaintiff, for the sum of $-, subject to the opinion of the court, upon the question, whether upon this evidence the defendant had a right to retain the cotton, or stop the delivery thereof, until the note of Bullard was paid or secured to be paid; either party to be at liberty to turn the case into a special verdict within-days after the judgment was rendered by the court.</p>

<p>Case No. 1,047.</p> <p>Patents for Inventions —JorNT Patent — Pat-entability—Combination—Sep abate Improvements—Method not Patentable.</p> <p>1. A joint patent may well be for a joint invention, but not for a sole invention of one of the patentees. If each of the patentees obtain separate patents for the same invention, as his exclusive invention, and afterwards, both obtain a joint patent for the same, as their joint invention, they are estopped by the joint patent to assert any title under the several patents.</p> <p>[Cited in Butler v. Bainbridge, 29 Fed. 143.]</p> <p>2. A patent may well be for a new combination of machines, whether the machines be old or new. But one patent cannot, at the same time, include an exclusive right in the combination and in each of the machines; and it is no infringement of a patent for the combination, to use either of the machines separately.</p> <p>[Cited in Tyler v. Deval, Case No. 14,307; Olcott v. Hawkins, Id. 10,480; Smith v. Downing, Id. 13,036: Brooks v. Norcross, Id. 1,957; In re Boughton, Id. L690; Stimpson v. Woodman, 10 Wall. (77 TJ. S.) 126; Rees v. Gould, 15 Wall. (82 U. S.) 194; Craig v. Smith, Case No. 3,339.]</p> <p>3. There must be several patents for several improvements of distinct machines.</p> <p>[Cited in Wyeth v. Stone, Case No. 18,107; Emerson v. Hogg, Id. 4,440; Sessions v. Romadka, 21 Fed. 132.]</p> <p>[4. Cited in Hogg v. Emerson, 6 How. (47 U. S.) 4S3, as supporting the point that patents may be united if two or more, included in one set of letters, relate to a like subject, or are in their nature or operation connected together.]</p> <p>5. A patent for an improved machine must show in the specification, in what the improvement precisely consists; and the patent be limited to those improvements. If not specified, the patent is void for ambiguity; if broader than the improvements, it is void on other grounds.</p> <p>[Cited in Hogg v. Emerson, 6 How. (47 U. S.) 483; Blake v. Stafford, Case No. 1,504.]</p> <p>6. Where a combination of machinery exists up to a certain point, and the patentee makes an improvement, he should not include in his patent the whole machinery; but only the improvement.</p> <p>[Cited in Hovey v. Stevens, Case No. 6.746; Potter v. Holland. Id. 11,330: Seymour v. Osborne, 11 Wall. (78 U. 8.) 549; Hopkins & D. Manuf’g Co. v. Corbin, Case No. 6,695.]</p> <p>[Cited in Ex parte Berry, Case No. 1,353, as to what constitutes a combination.]</p> <p>7. If a party make an improvement on an existing machine, or invent a new machine, his patent should not be for a method, but for his machine, or improved machine.</p> <p>[Cited in Potter v. Holland, Case No. 11,330; Rees v. Gould, 15 Wall. (82 U. S.) 187.]</p> <p>[S. Cited in Valentine v. Marshall, Case No. 16,812a, and Smith v. Downing, Cases Nos. 13,035a and 13,036, to the point that the character of an infringement, as such, is not affected by a mere alteration in form and proportion, so as not to materially affect results, nor by the substitution of mechanical equivalents to attain the same end.]</p> <p>[9. Cited in Keene v. Wheatley, Case No. 7,-'644, to the statement that the doctrine of patents constitutes the metaphysics of the law.]</p> <p>[10. Cited in Earth Closet Co. v. Fenner, Case No. 4,249, to the point that, on application for a provisional injunction in a patent case, proper expert demonstration of the patents or articles involved should, in the discretion of the court, be applied in the solution of the necessary questions of law governing the case.]</p>

[At law. Action by Soramus L. Barrett and others against J. August Koella for money had and received. Tried by jury. Verdict for plaintiffs. Heard on motion for new trial.

<p>[In admiralty. Libel in rem by C. S. Barrett et al. against the schooner Wacousta for alleged breach of a charter party.</p>

[At law. Trespass on the case by Alexander B. Barrett, Robert Clark, Nathaniel D. Terry, Henry Lyne, James D. Donaldson, William Brown, and John B. Sprowle, owners of the steamboat Major Barbour, against' Euclid Williamson, Thomas F. Eckert, and John Williamson, owners of the steamboat Paul Jones, for damages caused by collision between the two vessels.

[At law. Action by William T. Barron, executor, against the Illinois Central Railroad Company, to recover for the death of William Barron. Heard on demurrer to the declaration. [Plaintiff subsequently had judgment, (Barron v. Illinois Cent. R. Co., Case No. 1,053,) which was affirmed by the supreme court in Illinois Cent. R. Co. v. Barron, 5 Wall. (72 U. S.) 90.]

At law. This was an action under the; statute of February 12, 1853, brought by William T. Barron, executor, to recover damages for the death of William Barron, who was killed on the 8th of January, 1862, between Hyde Bark and Chicago, while a passenger on the cars of [the defendant] the Illinois Central Railroad [Company. A demurrer to the declaration was overruled. Case No. 1,052. The hearing is now on the merits. Verdict and judgment for plaintiff.

In admiralty. Libel by Barron against Locke, master of the schooner George ¡3. Jones, for seaman’s wages. Libellant’s counsel objected to evidence by respondent on the ground that no written answer had been filed, claiming right to do so under the rules of the supreme court, mtde under Act •Cong. [Aug. 23,] 1842, [section 6, 5 Stat. 5Í8.] “The rules of the supreme court were not intended,” THE COURT said, “to change the rules of the district courts as to seaman’s wages.

[In equity. Bill by William Barron against Walter L. Newberry. This was a bill to redeem, filed by the plaintiff as owner of the equity of redemption in the premises described in the bill, situated in Cook county, Illinois, by purchase from Gordon Burnham, who claimed title thereto by deed from W. C. H. Waddell, the as-signee in bankruptcy, for the southern district of New York.

[In bankruptcy. In the matter of R. H. Barrow; in the matter of Loeb, Simon & Co.; in the matter of W. D. Winter. Petition by assignees for orders to sell real property free of incumbrances.

At law. Action on- the case for libel [by Ira Barrows against Benoni Carpenter. Heard on demurrer to plea.

<p>Case No. 1,059.</p> <p>[Cited in Bennett v. Bennett, Case No. 1,318.]</p>

At law. This was an action at law [by James D. Barry against Robert Barry] claiming $27,527.04, as a balance of account due by the defendant to the plaintiff. It was commenced by attachment, under the Maryland act of 1795, c. 50; but the defendant appeared and gave special bail, and dissolved the attachment.

[La equity. Bills by Christian Barry against Gugenheim, Dreyfus & Co. and against Horace Everett.] Final hearing on pleadings and proofs. Suit brought on letters patent [No. 71,680] for “improvement in machine for making tin cans,” granted to complainant December 3, 1867, and reissued October 6, 1868, [No. 3,143.] A suit by the same complainant against Horace Everett was argued at the same time.

[Appeal from the commissioner of patents.] [Application by A. C. Barstow for letters patent for an improvement in stoves. The application was denied. Applicant appeals.

<p>Case No. 1,062.</p>

<p>Case No. 1,064.</p> <p>Bankruptcy—Priobities—Jukisdiction—Petition.</p> <p>[In bankruptcy proceedings it was adjudged that a certain creditor, by virtue of a mortgage to him, had a claim on the estate superior to that of the assignee, and the equity of redemption was ordered to be sold by the latter. Another creditor then filed a petition to the judge, setting up certain prior, but unrecorded, mortgages and bill of sale, also an attachment issued thereon before the bankruptcy proceedings, and praying that he be- adjudged to have the superi- or claim on the property covered thereby. Meld, that the petition should be dismissed for want of jurisdiction, the petitioner’s remedy being by action at law or suit in equity.]</p> <p>[Distinguished in Ferguson v. Peckham, Case No. 4,741. Cited in Re Harter, Case No. 9,143. Contra, see Norris’ Case, Case No. 10,304.]</p>

<p>Case No. 1,065.</p>

<p>[In admiralty. Libel by Thomas H. Bar-stow against Samuel D. Wilmot for freight.</p>

[Appeal from the district court of the United States for the eastern district of Pennsylvania, [In admiralty. Libel by Bartelson and others against the tug Cynthia for collision. The district court entered a decree for libel-lant, (nowhere reported.) Respondent appeals. Finding of facts by the court: On the 25th of October, 1876, the steam tug Cynthia, with the loaded bark Haugesund in tow, was coming up the Delaware river from Girard point, on the ebb tide.

[In bankruptcy. In the matter of George A. Bartenbach.] On the application of the Michigan Health and Relief Society, a secured creditor, to review a computation by the register of the amount due upon its note and mortgage; and of C. J. Riley, the as-signee, for the allowance and adjustment of the costs and expenses of the sale of mortgaged premises free of the incumbrances.

<p>Case No. 1,069.</p> <p>Lien of Judgment—Marshaling of Assets— Jurisdiction—Conflict of Authority.</p> <p>1. A judgment rendered in the circuit court of the United ■ States for the district of Indiana, is a lien from its date on all the lands of the defendant situated within the district And if, after its rendition, the defendant acquires other lands in the state, the lien of such judgment instantly attaches on these lands also; and a sale of them by the defendant, made before execution issues on the judgment, does not divest the lien. And, in such a case, the purchaser of the subsequently acquired land cannot, as against a prior purchaser of the land on which the judgment became a lien at the moment of its rendition, insist that the officer shall first levy on and sell the lands held by such prior purchaser before the subsequently acquired lands shall be levied on. and sold.</p> <p>2. In a cause over which a national court has original jurisdiction solely by reason of the citizenship of the parties, if the rights and interests of third persons should become complicated with the litigation, either as to the original judgment, or any property in the custody of the court, or any abuse or misapplication of its process, and if no state court has power to determine and guard those rights and interests without a conflict of authority with the national court, the latter court will, from the necessity of the case, and to prevent a failure of justice, give such third persons a hearing irrespective of their citizenship, so far as to protect their rights and interests relating to such judgment or property and to correct any abuse or misapplication of its process, and no farther.</p> <p>3. A bill is defective which does not give the full names of all the parties to whom it refers.</p>

[At law. Action by Frederick Bartholomew against Nathaniel Sawyer and William S. Carr, for infringement of letters patent No. 11,113, granted June 20, 1854. Verdict was rendered for plaintiff. Heard on defendant’s motion for a new trial. This was an action at law for the infringement of letters patent granted to the plaintiff, June 20th, 1854, for a cock used in water-closets.

[In bankruptcy. In the matter of West ■& Lewis; Bartholomew, assignee.] This is a petition by the assignee under the second section of the bankrupt act, to review an order of the district court refusing the application of the assignee for an order to sell lot 3 in block 66, in the town of Blair. The ground of the refusal was that the property was exempt as a homestead.

[In equity. Bill by Andrew Bartle against George Coleman upon a partnership account. Bill dismissed. This was afterwards affirmed by the supreme court, in Bartle v. Nutt, 4 Pet. (29 TJ.

At law. Assumpsit. Non assumpsit and issue. gave in evidence an agreement of the plaintiff and other of his creditors, to release him on executing a deed of his property to such trustees as the subscribers should appoint, and that he executed such a deed. 1. *That the plaintiff never approved the trustees, or the deed. 2. That no release was ever executed by the plaintiff. 3.

<p>In admiralty. Libel by [Ivory H. Bartlett and others] the owners of the bark Canton Packet, of New Bedford, against [John Budd and others] the owners of the ship Emerald, of Sag Harbor, for the value of a whale.</p> <p>The first officer of the libellants’ vessel killed several whales one afternoon in July, 1856, in a bay of the Okhotsk sea, and one of these he anchored in five fathoms of water, with an anchor which he borrowed from the mate of the Brunswick, and attached to the body what whalemen call a waif, that is, some article belonging to a whale-boat which may serve as a signal; in this case, a paddle and sail, and went on shore at some distance, for the night. The next morning two boats of the Emerald found the whale and towed it to their ship where it was cut in and boiled down. The witnesses on behalf of the respondents testified that they found the whale adrift, the anchor not holding, the cable coiled round the whale’s body, and no waif or irons attached to .it. The original taker swore that he notified them on the spot that the whale was his. This they all denied.</p>

<p>[In equity. Bill by R. M. Bartlett to restrain A. F. Crittenden and others from infringement of copyright.</p>

[At law. Suit by Edwin Bartlett against George P. Kane, collector of the port of Baltimore, to recover customs duties alleged to-have been illegally exacted. Verdict and judgment for defendant. This judgment was afterwards affirmed in 16 How. (57 U. S.) 263.

In equity. This was a suit in equity by [Ebenezer F. Bartlett] the assignee in bankruptcy of George Mercer, to set aside a conveyance by the bankrupt to his sister, Jane Mercer, of a farm in Columbia Co., N. Y., which conveyance was executed on August 20th, 1870, and to set aside two assignments-made by him at the same time of two bonds- and mortgages held by him. George Mercer was adjudicated a bankrupt on the 22d day of April, 1871.

[At law. Action by Robert S. Bartlett and another, as executors, etc., of Bartlett, against Henry S. Rogers and others, upon a promissory note. Judgment for defendants.]

In bankruptcy. This was a petition for review, filed by [Albert E.] Bartlett, as-signee in bankruptcy of Peabody, to reverse an order of the district court, in bankruptcy, in favor of the respondent, [Edward] Rnssell. [Unreported.] The material facts appear in the opinion, orally given, of the circuit justice.

Admiralty appeal [by Enoch Bartlett, claimant of the schooner William G. Bartlett] from a decree of the district court of Massachusetts awarding damages to the ap-pellees [Sheldon Williams and others, owners of the brig Richard and Torreyj in a case of collision. The facts are stated in the opinion.

<p>Case No. 1,082.</p> <p>Literary Property—Dedication—Abandonment.</p> <p>1. By the common law, a party had a property in his own manuscripts.</p> <p>[Cited in Boucicault v. Eos, Case No. 1,691; Henry Bill Pub. Co¡ v. Smythe, 27 Eed. 926.]</p> <p>2. And if they be in the possession of other persons, who are about to make an improper use of them, a court of chancery would inhibit such use.</p> <p>[Cited in Boucicault v. Pox, Case No. 1,691; Henry Bill Pub. Co. v. Smythe. 27 Fed. 926.]</p> <p>3. The principles in regard to a manuscript, may be applied to the- invention of a machine.</p> <p>4. It belongs to the inventor, and it will continue to be his property until he shall give it the public or abandons it.</p> <p>5. Under our present law, a use of a machine for less than two years, before the application ■of a patent shall be made, does not invalidate the right.</p> <p>6. A person who uses his own manuscripts for the purpose of instructing others, does not thereby abandon them to the public.</p> <p>[Cited in Keene v. Wheatley, Case No. 7,644; Boucicault v. Hart, Id. 1,692.]</p> <p>7. Nor does he abandon them, when his pupils are permitted to take copies.</p> <p>[Cited in Boucicault v. Hart, Case No. 1,692.]</p> <p>S. Such copies being intended for the purpose of instruction, as used, can be applied to no other purpose.</p> <p>9. In the use, the intention of the owner of the manuscript can not be perverted or extended. [NOTE. For subsequent litigation between the same parties involving the same subject-matter, see Bartlett v. Crittenden, Case Ño. 1,076.]</p>

[In admiralty. Libel by L. D. Bartlette against the steamboat Viola for libellant’s wages, for additional pay as pilot, and for advances for supplies and repairs.

[At law. Action by Seth Barton against Anthony for breach of an agreement to effect marine insurance. Plaintiff excepts to the award upon arbitration. This case came on upon exceptions to the report of referees.

In bankruptcy. This was a petition by Eli-phas B. Barton and William Osborn, that Julius Tower be declared a bankrupt. The petition set forth, that Tower was a merchant; that he owed not less than $2000; that he •owed to each of the petitioning creditors, severally, not less than $500, to wit, the sum of one thousand dollars besides interest, for which they severally held his promissory note, made jointly with him and other persons.

In bankruptcy. This case arose upon a certificate' from T. W. Palfrey, Esq., register, [in the matter of Bartusch, a bankrupt,] and was argued by Oliver Stevens, Esq., and Messrs. Graves.

At law. This was an action on the case, brought by the owners of the Dos Amigos, [Joseph Bas, Escardo, and others,] being subjects of his Catholic majesty, against [John Steele] the collector of the port of Philadelphia, for refusing to grant a clearance to the said ship and cargo from this port to-Havanna, in July, 1813. In consequence of the refusal and the consequent delay, the cargo was so damaged as to render it necessary to dispose of it at auction at an enormous loss.

At law. This action was brought to October sessions, 1S13, to recover damages from the defendant, [John Steele,] who was collector of the port of Philadelphia, for refusing a clearance to a Spanish vessel, owned by [Joseph Bas and Escardo] the plaintiffs, who were merchants residing at Havana.

[In equity. Bill by Henry B. Bascom and others, commissioners appointed by the general conference of the Methodist Episcopal Church South, against George Lane and another, agents of the book concern of the Methodist Episcopal Church, for a settlement and division of property of the church.

In bankruptcy. This was a petition filed by [John F. Picket] the assignee in bankruptcy to review the decision [unreported] of the bankrupt court denying an order asked for by the assignee, directing him to “sell sufficient of the property of the bankrupt, [Miles Bass,] in which the homestead exemption had been waived, to satisfy the claim in favor of which the waiver had been made.” 1.

[In bankruptcy. Application for discharge of Henry TV. Bashford, bankrupt. Opposed on the ground that the debt of the opposing creditor was created by fraud. This case having been submitted on the specifications filed in opposition to the discharge of the bankrupt, the following decision is ordered on file:

<p>Case No. 1,092.</p> <p>Ejectment — Occupancy — Question of Fact— Statute Constkued — Occupant Law —Validity of—Title—Oldest Grant as Evidence of.</p> <p>1. Occupancy is a question of fact for the jury. No person can claim the privileges of an occupant under the statute unless he has actually settled on land claimed.</p> <p>2. The occupant law [1806] of this state, so far as it violates the compact with other states by giving preference to its citizens over those of the other states, is void.</p> <p>3. The oldest grant is conclusive evidence of title at law, except in the single case of an elder legal entry.</p> <p>NOTE, [from original report] ' Relation between Elder Degal Entry and Later Grant.—See Donegan v. Taylor, 6 Humph. 503, citing case in text</p>

<p>[In admiralty. Libel by Captain Bass against five negro slaves and a canoe. McCall claims the canoe.</p>

At law. Action on the case, on a policy of insurance. The plaintiff, John Y. Bas-sell, was a merchant in the town of Lees-burg, Loudoun county, Virginia, and in the fall of 187G set up a branch store in Middle-burg, in the same county, and transferred a portion of his stock from his house in Lees-burg to his branch store in Middleburg.

In equity. The complainants [Henry D. Bassett, surviving partner] recovered a judgment against the defendant Hunter Orr, in this court, April 35th, 1875. Execution was issued upon the judgment and delivered to the marshal April 16th, 1875, and was returned by him on the same day nulla bona. The defendant’s residence was at Oconto, in this state.

In bankruptcy. The examination of the bankrupt [Charles W. Batchelder] disclosed that about three weeks before he filed his petition, he assigned and transferred his whole stock in trade and book accounts to his father, in satisfaction cf a pre-existing debt. He had no other estate or property, excepting such as is exempted from the operation of the bankrupt law, and he owed a considerable amount of debts, and was in fact insolvent.

<p>In bankruptcy. The petitioner, [D. W.] Luce, sold several lots of pickled salmon to [M. T.] Batchelder, at sundry times, and took his notes for the price, payable in four months from their several dates, indorsed by a third person. Both the buyer and the indorser failed, and became bankrupt, leaving the notes unpaid; and the petitioner proved for the full amount of the notes at the first meeting of Batchelder’s creditors. He soon after filed his petition, averring that his proof was made unadvisedly, in the absence of his counsel, and that he was now informed that he had a lien on such of the salmon as remained in warehouse, and prayed that the goods might he sold, and the proceeds be applied to the payment of his debt, and that his proof should be so modified as to stand good only for any balance that might remain due him, after crediting the proceeds of sale. The parties agreed, in writing, to a statement of facts. Sixty barrels of the salmon were put by Luce into the hands of Beaman Brothers, brokers, for sale, and were by them stored in the warehouse of Lombard & Co., in their own names. When this lot was sold to Batchelder, a receipted bill of the same was given him, and Beaman Brothers were notified by Luce that the sale had been made, and were ordered to deliver the sixty barrels to Batchelder; but the latter never called upon Beaman Brothers, nor upon Lombard, the warehouseman, for the goods, or any part of them, and no transfer of them was made on Lombard’s books. There were three other lots, all of which were stored with Lombard in the name of Batchelder, who was a broker as well as a dealer, and while so stored were bought by him; and parts of two of these lots were delivered, from time to time, by Lombard to Batchelder before his failure.</p> <p>No notice was given by Luce to Beaman Brothers, nor to Lombard, of his intention to claim a lien, until three months after the failure of Batchelder, and after protracted negotiations for a settlement with him had resulted in nothing. The notes which Luce took for the price of all these goods were pledged by him to a bank as collateral security for a loan; but it was agreed at the argument that they were afterwards taken up by Luce, and were now held by him. He did not offer to cancel or surrender the notes, intending to prove them against the indorser’s estate in bankruptcy. By consent of both parties an order was passed, a few days before the hearing, authorizing a sale of the goods, the proceeds to be held subject to the further order of the court.</p>

<p>[At law. On habeas corpus. Motion of R. T. Bates and others to be discharged from custody.</p>

At law. Assumpsit [by Barnabas Bates against Luke Drury] for money had and received. Plea, the general issue. At the trial it appeared that the defendant was collector of the customs for the port of Bristol; and the plaintiff was his immediate predecessor in that office.

[At law. Action by Edward N. Bates against the Equitable Fire & Marine Insurance Company.] Assumpsit upon a policy of insurance. Plea the general issue, and verdict for the plaintiff, subject to the opinion of the court upon questions of law, reserved at the trial. [Verdict set aside. This was afterwards affirmed by the supreme court in Bates v. Equitable F. & M. Ins. Co., 10 Wall.

<p>Case No. 1,102.</p> <p>Collision —Mississippi Bivee — Ascending and Descending Boats—Bules op Navigation.</p> <p>1. The general rules of navigation of the Mississippi and the law of Louisiana requires a descending steamboat to keep the middle of the river.</p> <p>[Cited in Shirley v. The Biehmond, Case No. 12,795.]</p> <p>[See Sinnot v. The Dresden, Case No. 12,908; The Magnolia, Id. 8.958; Goslee v. Shute, 18 How. (59 U. S.) 463.]</p> <p>2. Although a steamboat descending when near a bend, may have the right to run near the right bank, yet she is guilty of great imprudence in continuing to run near that shore, when she saw another boat ascending, apparently near the same shore.</p> <p>3. When a boat ascending on the right bank, signals a boat descending, by two taps on her bell, that she intends keeping to the larboard, there is no necessity that the descending boat should run any risk in passing.</p>

At law. [Joseph R.] Payson, assignee in bankruptcy of the Republic Insurance Company, of Chicago, Illinois, sued [Joseph E.] Bates in assumpsit in the district court of Arapahoe county, to recover a balance alleged to be due from the latter on his subscription to the capital stock of the company.

<p>[In admiralty. Libel for seaman’s wages by Bates against Seabury and others.</p> <p>The libellant was a boat-steerer of the ship Scotland, which sailed from New Bedford on the 20th of June, 1851, on a whaling voyage. After taking a considerable quantity of oil, he was, in the month of November, 1852, discharged, with his own consent, at Lahai-na, in the Sandwich islands. The circumstances attending that discharge sufficiently appear in the opinion of the court. Some weeks after that discharge, the libellant shipped in the whale ship Orizimbo, at an advanced lay, and returned in her to New Bedford, in the spring of 1854. He then made a claim upon the owners1 of the Scotland, for his lay in that vessel. A suit was commenced, and settlement afterwards made by his proctor, in the absence of the libel-lant and without any other authority from him than the retainer of the proctor. Upon this settlement, the proctor gave to the respondent a full discharge of all claims of the libellant. The grounds upon which that settlement was made are stated in the opinion of the court. Upon the libellant’s return from another voyage, in 1857, he first learned of the settlement, and thereupon filed the present libel.</p> <p>cited, upon the question of the basis of settlement. Hutchinson v. Coombs, [Case No. 6.955;] The Ro-vena, Id. 12,090;] as to the advance wages, Emerson v. Howland, [Id. 4,441;] Wells v. Meldrun, [Id. 17,402;] and to the authority of the proctor, Lewis v. Gamage, 1 Pick. 347; Jackson v. Bartlett, 8 Johns. 281; Wilson v. Wadleigh, 36 Me. 496; 2 Greenl. Ev. § 141; Betts, Pr. 10.</p> <p>cited, as to the power of proctors, Ben. Adm. 188; Dunl. Adm. 105; The Frederick, 1 Hagg. Adm. 220; Mynn v. Robinson, 2 Hagg. Ecc. 169; The Whilelmine, 1 W. Rob. Adm. 340; Durant v. Durant, 2 Addams, Ecc. 267; The Harriett, [Case No. 6,096.]</p>

<p>Case No. 1,105.</p> <p>Patents ron Inventions—Combination—Novelty—Evidence—Expert Witness—Province op Court and Jury—Disclaimer.</p>

<p>In equity. This was an injunction bill filed by Batten, claiming to be the inventor of a machine—certain rollers for breaking and screening coal—against the defendant, Silli-man, who, it was admitted, was using a machine similar in several respects to the one of which the complainant alleged himself to be the inventor.</p> <p>Most or all of the ordinary formal allegations (though not those usual in such bills, that the plaintiff had enjoyment and possession, and in consequence thereof had made sale of licenses or rights) were made in the bill; and it was further alleged that the validity of the patent had been tried at law, in this court, in three cases (one of them being Batten v. Taggert, reported in its conclusion, on a point of law, supra, [Case No. 1,107,] in which after ample preparation and numerous notices, no witness was produced or could be produced to impeach or disprove the originality of the invention; and that although these verdicts were afterwards set aside by the court, upon a technical question in no way affecting the originality” of the invention, this decision was finally reversed in the supreme court of the United States, on error, and the patent sustained. See Battin v. Taggert, 17 How. [58 U. S.] 74.</p> <p>Numerous ex parte affidavits were filed in behalf of the complainant, stating that the defendant had put into operation, and was still using, a machine constructed on the same plan and substantially like the machine described in the patent and bill of the complainant, of which patent, as these several deponents verily believe, the machine used by the defendant was an infringement.</p> <p>The defendant, on the other hand, swore in his answer that he had a good defence both as to matter of law and matter of fact; that he wTas advised that the complainant never had such possession and enjoyment of the alleged invention as is required in applications of the sort now made by him; that he had never made sale of licenses, rights or interests in consequence thereof—a matter which, on an injunction bill, he ought, if he had so made sale, to aver,—but that on the contrary, machines substantially like the one described in his patent had been extensively and were still so used, and the complainant’s right in almost all cases resisted or denied. The answer then went into a history of the suits alleged by the complainant to have been brought by him under his patent, and set forth some blunders and carelessness in his specifications at the patent office, and delays consequent thereon, and showed also that a much greater delay than was either indispensable or necessary had taken place on his part in urging trials at law of his rights; that in regard to these suits motions had been made by the defendant for continuances on the ground of evidence, the discovery of which was obtained at too late a period to be included in the notice of defence; but that these motions were unsuccessful, and that the causes were therefore submitted to the jury solely upon the question of damages; all evidence as to the want of novelty being excluded; and that the verdicts given for the plaintiff were given independently of any evidence on tlie point last mentioned; that moreover these verdicts were afterwards set aside and new trials granted in each case upon views of law applicable to the whole merits, and not, as the bill alleged, upon a mere technicality; that while, as the complainant alleged, it was true that on writs of error being taken by him, the decision of this court was reversed, yet, that the cases were remanded by the court above with directions to award a venire facias de novo; that no farther proceedings had been taken by the complainant in those actions at law; that notwithstanding the verdicts given, as mentioned by the complainant, in his favor, no judgments had ever been entered on them, and that therefore the complainant had failed to obtain a verdict and judgment, and that his right had in no wise been established by any legal proceedings, but on the contrary, was still unsettled and in dispute, and that the actions at law were still pending, and the defendants preparing to make defence in them.</p> <p>The answer alleged further that machines quite similar to that claimed by the complainant as his, had been extensively used for breaking coal before and since he obtained his pal ent; and that notwithstanding the granting of the patent, many such machines had been run and used by the workers of mines in consequence of the opinion generally entertained that the complainant, Batten, had no valid rights under such patent, also by reason of his apparent indifference in prosecuting such claims, together with his failure successfully to establish them in the suits in this court; and that the defendant believed and expected on a trial at law to prove an entire want of originality in the invention. The answer further stated that the defendant had not himself erected the machine now sought to be enjoined, but had bought it at Marshall’s sale on an execution from this court, about five years ago, and had never any notice to desist from its use; and concluded with the allegations that he was competent to satisfy any damages which might be recovered against him by the complainant at law; that the breaking apparatus, its fixtures, &c., had cost him several thousand ■dollars; that he employs over one hundred operatives at his works, and that an injunction as prayed for, would produce great and irreparable damage to him.</p> <p>The defendant on his side also, brought ex parte affidavits, to prove a want of originality in the complainant.</p> <p>About two hundred machines which the complainant alleged were infringements of his patent, were in use in different places, in violation of his alleged rights. The patented machine formed but a small, though an important part of the combined machinery used for breaking coal; steam enginery and •other apparatus, the cost of which is several thousand dollars, being requisite. The complainant did not desire an exclusive use of his machine; but desired to prevent the use of machines like it, except under his license; he being willing to let similar machines be used by others, they paying him one per cent, per ton of coal broken and screened upon them.</p>

[At law. Action by Batten against Taggert for infringement of letters patent. Plaintiff heretofore had a verdict in his favor. Heard on defendant’s motion for a new trial. Granted. Afterward, upon the new trial, defendant had judgment, but this was reversed by the supreme court in Battin v. Taggert, 17 How. (58 U. S.) 77.

At law. Ejectment for five-ninths of a tract, of land. Upon the death of Jacob Browning, who died seized of the tract of land in question, it descended to his three sons and three daughters. The title of the lessor of the plaintiff is derived under deeds from one of the sons, and from the daughters and their husbands.

<p>Case No. 1,109.</p> <p>Equity—Pleading—Amendment—Admissions in Answer.</p> <p>1. A plaintiff, in a suit in equity, can recover only upon the case made by his bill, and not upon that made in the evidence.</p> <p>2. An admission in the answer will be of no use to the plaintiff, unless it is put in issue by some charge in the bill.</p> <p>3. On final hearing, the court announced, that, on the pleadings and proofs, as they stood, it was impossible to grant to the plaintiff the relief prayed for. The plaintiff then moved for leave to amend the bill. It appearing, that, by making the amendments proposed, the bill and the answer would agree in their statements, in the particulars covered by such amendments; that the evidence and the answer made out a case for relief to the plaintiff, but a case different from the one stated in the bill; that the purposes of substantial justice required that the amendments should be made; that the amendments did not change the subject matter of the bill; and that no decree had been passed: Held, that the motion ought to be granted, on payment of costs.</p> <p>[Cited in Hardin v. Boyd. 113 U. 8. 705. 5 Sup. Ct. 775; Maynard v. Tilden, 28 Fed. 70S.]</p> <p>4. Held, also, that, although some testimony on the part of the plaintiff might be in conflict with the amendments, yet, as the amendments harmonized with the allegations of the answer, and such testimony was not testimony sustaining the allegations of the answer, the point was immaterial.</p> <p>5. The case of Neale v. Neale. 9 Wall. [70 U. S.l 1. commented on, and held to warrant the allowance of such amendments.</p>

Petition for freedom [by the negro John Battles against Miller.] Upon the trial, the defendant’s counsel, Mr. Ashton and Mr. Jones, after stating the evidence, prayed the court to instruct the jury, 1.

At law. This is an action to recover the sum of $4,000, which the plaintiff alleges the defendant had verbally agreed to insure upon a hotel building, at Cameron, in this state, of whieh property the plaintiff held the title in trust. The principal question of fact controverted on the trial was whether there was any such contract subsisting between, and binding upon, the parties at the time the building was consumed by fire.

Mr. Ralston of Philadelphia, having consigned to the house of Peter Bauduy & Co., established at Cape Francois, two cargoes, on account of which he had received some remittances, but without account of sales, received a letter from a Mr. Hogan of the Cape, informing him that he had shipped, on his account, three thousand dollars in specie, in a certain vessel, for his government in making insurance.

<p>At law.—This was an action of replevin, brought [by Bauendahl & Co. against William L. Horr] under a statute of the state of Connecticut, which gives this remedy: “Whenever any goods shall be unlawfully detained, except by attachment, from the owner or other person entitled to possession.” The property embraced in the suit consisted of certain bales of wool, the title and right to possession of which was claimed by the plaintiffs and denied by the defendant. The case was tried by the court, the parties having stipulated to waive a jury. The plea was the general- issue. No question was raised on the pleadings.</p> <p>On the evidence produced on the trial, and after argument thereon, the court found the following facts to have been duly proved: (1.) That, on the 19th of August, 1868, the plaintiffs, wool merchants in the city of New York, made a contract with the defendant, a manufacturer and consumer of wool, in Brookfield, Connecticut, by which they agreed to sell him seventeen bales of wool, amounting, with the usual incidental charges, including interest on the same during the term of credit, to $3,396.19. (2.) That one of the express conditions of the contract was, that the defendant should pay for the wool by his own draft on Messrs. G. P. & B. W. Pay, accepted by the latter, and payable in four months. (3.) That the plaintiffs performed the contract, on their part, on the 20th of August, 1SGS, by forwarding the wool to the defendant, which the latter received, in due course of transportation, and accepted, and that the wool was so forwarded by the plaintiffs to the defendant on the condition above set forth. (4.) That the defendant never performed his part of the contract, by furnishing the plaintiffs with his own draft on G. P. & B. W. Pay, accepted by the latter, but wholly refused so to do. (5.) That, on the 26th of August, 1868, the defendant forwarded to the plaintiffs Messrs. G. P. & B. W. Pay’s note for the amount of the purchase price of said wool, payable four months from the 19th of August, 1868, to the makers’ own order, and by them endorsed, and endorsed by no one else, and that, in the letter of the defendant accompanying said note, it was stated, that the same was in settlement of the bill of wool, “as per your agreement.” (6.) That, on the 27th of August, 1868, and immediately on the receipt of said note, the plaintiffs replied by letter, stating that this mode of settlement was not according to the contract, reminding the defendant that the same was to be by draft on G. P. & B. W. Pay, accepted by the latter, and adding: “Nevertheless, we will accept the settlement this time, but must hold you responsible for the payment of the note, which please confirm by return mail.” (7.) That the plaintiffs received no reply to the last named letter, and, on the 3d of September, 1868, again wrote the defendant, and demanded settlement in accordance with the terms of the original contract, at the same time stating to the defendant, that they would return to him said note, or hand the same over to the Messrs. Pay, as he might desire; that the defendant replied to this letter only by insisting that the payment was, by the original agreement, to be made by the note of G. P. & B. W. Pay. instead of the defendant’s own draft>on, and accepted by, them; and that, thereupon, the plaintiffs again demanded a compliance with the terms of the original contract, or a return of the wool, both of which the defendant refused. (8.) That it is a custom of the trade, in contracts of this character, for the seller to deliver the goods before the terms of payment are complied with by the buyer.</p>

<p>In bankruptcy. In this case a register in bankruptcy certified to the court that a creditor had given notice of his intention to oppose the discharge of the bankrupt, and had handed in a list of objections to the discharge; that the bankrupt opposed the reception of the objections at that stage of the proceedings, it being the first meeting of creditors specially for the proof of debts and the choice of an assignee; and that the opinion of the court was desired on the question as to whether the objections could now be received. The register referred to section 31 of the bankruptcy act, which provides that any creditor opposing the discharge of a bankrupt may file a specification in writing of the grounds of his opposition, and the court may, in its discretion, order any question of fact so presented to be tried at a stated session of the district court. The register stated that in this case the petitioner represented no assets whatever in his sched-ulo; that the creditor was not satisfied with this, and had declared his intention of applying. as soon as the appointment of the assignee, which had been made, was approved, for an order to examine the bankrupt and other persons, under section 20, with a view to finding assets, as well as proving the specific charges of fraud which the creditor had specified in the paper filed by him. The register stated that this seemed to suggest the following questions: (1) When shall a creditor so file his objections? (2) When the objections are so filed, may the register make an order that the bankrupt and others should appear to be examined? (3) Is it competent for the creditor to examine the bankrupt and others ad libitum to find property, as well as to establish his specifications of fraud and other objections to the discharge? The register observed that if the provisions of the act would permit, it would seem to be well if something of this kind could be done at an early period of the proceedings, first, to quiet all groundless fears, and second, to ascertain what facts and what issues it was -worth while to bring before the court for trial: that such a proceeding would be quite in analogy with the provisions of section 391 of the Code of Procedure of the State of New York, which had at times a very healthy operation; that if, after such examination, the register could certify to the court the precise issues that existed between the respective parties, and which the court must try, very much labor and vexation would be spared to the court, which really has less conveniences for getting at such issues than the register, before whom the testimony is taken, and who fully knows the whole case; that the provisions of rule 24 of the “general orders in bankruptcy,’’ to the effect that “a creditor opposing the application of a bankrupt for discharge shall enter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file his specification of the grounds in opposition in writing within ten days thereafter, unless the time shall be enlarged by order of the district court in the case, and the court shall thereupon make an order as to the entry of said case for trial on the docket of the district court, and the time within which the same shall be heard and decided,” are not in antagonism with this view; that rule 24 contains nothing prohibitory, and may be fully operative on those who have not theretofore appeared; that the creditors who have filed objections and examined the bankrupt and other witnesses, and got out all the facts which they desire, may well come into court at the time prescribed in rule 24, enter an appearance, and file such specifications as they on the whole have concluded they will be able to sustain, and thereupon proceed as specified in rule 24; that he could see no objection to any creditor who may see fit to file objections with the register, or perhaps without that, proceeding at once to ex amine tlie bankrupt and other witnesses, and thereby fully preparing himself to take the steps prescribed in rule 24, and that the 26th section of the act would fail in having some of its specifications carried out if an opposite view were taken, as power is there given to the court “at all times” to require the bankrupt to attend and bo examined.</p>

[Suit by Charles J. Bauman against the Union Pacific Railroad Company.] Motion by the defendant to dismiss the action for want of jurisdiction in the court.

<p>Case No. 1,118.</p> <p>Ex Post Facto' Laws — Attorneys—Test Oath.</p> <p>[1. Act Jan. 24, 1865, (15 Stat. 424, c. 20,) provided that no person should be allowed to practice in the federal courts, by reason of any previous admission thereto, without having first taken an oath that he had never borne arms against the United States, aided its armed enemies, supported any pretended authority hostile thereto, nor sought or exercised any office under such hostile authority. He Id, that the act is ex post facto and void; for the right of an attorney to practice his profession is his property, and the act declares a forfeiture of such property for offenses which were not so punishable when committed.]</p> <p>[See Cummings v. Missouri, 4 Wall. (71 U. S.) 277; Pierce v. Carskadon, 16 Wall. (83 U. S.) 234.]</p> <p>[2. The act cannot, however, be held to impair the obligation of a contract; for, even if the constitution prohibits congress from passing such laws, the 'admission of an attorney to practice is not a contract, within the meaning of the constitution.]</p>

<p>[In bankruptcy. In the matter of Archibald Baxter and Duncan C. Ralston.]</p>

<p>[In bankruptcy. In the matter of Archibald Baxter and Duncan C. Ralston.]</p>

<p>[In bankruptcy. In the matter of Archibald Baxter and Duncan C. Ralston.]</p>

<p>[In bankruptcy. In the matter of Archibald Baxter and Duncan C. Ralston.]</p>

In admiralty. This was a libel in per-sonam, by Sylvester Baxter and others, owners of the ship Cleone, against Horace Leland and others, to recover freight and pri-mage on a cargo of flour. [Decree for libel-lants.

<p>Case No. 1,123a.</p> <p>Admiralty—Procedure—Filing Claim—Default.</p> <p>[The filing of a claim in admiralty proceedings does not stay proceedings ex parte by the li-bellant unless it is interposed on the return day of the process when the proclamation is made; and, when no one appears on the return day, it is proper to enter interlocutory and final decree in favor of libellant as upon default, although the claimant had theretofore filed his claim.]</p>

[Appeal from the district court of the United States for the southern district of New York. [In admiralty. Libel by Sylvester Baxter and others against Leland, Adams & Co. The district court rendered a decree for li-bellants. Baxter v. Leland, Case No. 1,124. Respondents appeal.

At law. This was an action [by Edward Baxter and William E. Baxter] against [Hugh Maxwell] the collector of the port of New York, to recover back an alleged excess of duties, paid under protest, on an article known in commerce as “hemp carpeting.” [Verdict was given for plaintiffs, subject to the opinion of the court on certain points in the case.

<p>Case No. 1,128.</p> <p>Collision—Evidence—Reasonable Doubt—Damages.</p> <p>[Where, in a collision case, the evidence leaves it open to a reasonable doubt as to which party was in fault, the loss must be sustained by the one upon whom it has fallen. The Grace’ Gir-dler, 7 Wall. (74 Ú. S.) 190, followed.]</p> <p>[See Lucas v. The Thomas Swann, Case No. 8,588; The Nautilus, Id. 10,058; The Comet, Id. 3,050.]</p>

At law. Assumpsit [by Robert Baxter against the New England Insurance Company] on a policy of insurance, dated on the 28th Sept. 1821, whereby Aaron Baldwin, “for whom it may concern, and payable to him in case of loss,” procured insurance of “$4,-000, on property on board the brig Robert, at and from Kingston, Jamaica, to St. Andrews, (N. B.) four per cent, on specie, and two per cent, on merchandise.” Loss averred to be on the 24th of August, 1821, by pirates, of certain…

[At law. Action by E. H. Bayard against Henry 3VI. Bayard. Judgment was given for plaintiff.] Sur rule to show cause why It. H. Bayard should not take money out of court, [the surplus of proceeds of defendant's property after satisfying prior judgments. Eule discharged. Heard also on motion by the Bank of Middletown for tno same purpose.

At law. Ejectment [by the lessee of Bay-ard against Oolefax and Schuyler] for a part of a certain tract of land lying in the county of Morris, called the Bog or Fly meadow. The cause came before the court upon a demurrer to the evidence, taken by the defendants, and joined by the lessor of the plaintiff.

<p>Case Wo. 1,131.</p> <p>Negotiable Instruments—Acceptance—What Constitutes.</p> <p>1. A letter written within a reasonable time before, or after, the date of a bill of exchange, describing it, and promising to accept it, is a virtual acceptance.</p> <p>2. An authority to draw several bills of exchange, payable at specified periods with an assurance that the bills should be paid, is an acceptance to the person who takes the bill on the credit of such an authority.</p>

At law. Assumpsit [by William Bayard and others against the Massachusetts Fire & Marine Insurance Company] on a policy of insurance, dated 2d of April, 1824, whereby Leroy, Bayard, & Co. were insured, for whom it may concern, “$10,000, viz. $2326 on the cargo, $1860 on the freight, $5S14 on the profits on board of the brig Dick, freight valued at. $30,000, and profits at $25,000, premium included, at and from her port or ports of loading in Europe, to, at, and from any port…

[In equity. Bill by Bayerque against Jacob S. Cohen and others. Heard on demurrer to the bill. This bill is filed, to remove a cloud from complainant’s title, for the cancellation of a deed, and for an injunction. The bill alleges, that complainant is lawfully seized and in peaceable possession of certain real property described.

In equitj'. In this ease a bill was exhibited for the foreclosure of a mortgage, to which a demurrer was filed. The grounds assigned are given in the opinion of the court.

[In equity. Bill of foreclosure by Bayerque against the Jackson Water Company.] A motion was made in the case to set aside, or-so amend a decree as to render it unavailable to the complainant. The circumstances disclosed by the record are as follows:—On the 2Gtli February, 1856, process was served upon defendant. On the 3d March ensuing, an order upon motion was made, appointing a receiver, who gave bond and security.

At law. The present action is brought by the plaintiff as holder of certain warrants alleged to have been assigned to him for a valuable consideration. The warrants are in the following form: “$1,000. City Comptroller’s Office, San Francisco,-, 1854. City Treasurer,—Pay to Jesse L. Whitmore, or bearer, the sum of one thousand dollars, for grading &e. Powell street from Washington to Bay, out of the street assessment fund. S. It.

<p>Case No. 1,138.</p> <p>Accident Insurance—Death by Medical Treatment—Overdose of Opium.</p> <p>1. A policy of insurance against accident provided for the payment to the_ plaintiff of a specified sum within a specified time, after sufficient proof that the insured “shall have sustained bodily injuries effected through external, violent and accidental means.” “and such injuries alone shall have occasioned death,” “provided, that this insurance shall not extend to any death or disability which may have been caused wholly or in part by any surgical operation or medical or mechanical treatment for disease.” A specified dose of opium was prescribed to the insured by his physician, to allay nervousness and restlessness. By inadvertence, he took more opium than he intended and his death was caused thereby: Held, that his death was caused wholly or in part by medical treatment for disease, and was not covered by the policy.</p> <p>[Cited in Crandal v. Accident Ins. Co., 27 Fed. 45.]</p> <p>2. Held, also, that the case was not one of bodily injury effected through external, violent and accidental iheans, occasioning death, within the meaning of the policy.</p> <p>[Cited in Crandal v. Accident Ins. Co., 27 Fed. 45.]</p>

[In equity. Bill by Abram B. Bayliss and others against the Lafayette, Muncie & Bloomington Railway Company and others. For further proceedings in this litigation, see Bayliss v. Lafayette, M. & B. Ry. Co., Case No. 1,141.]

[At law. Action for] money had and received, to recover one hundred and eighty dollars paid in advance for the purchase of the horse Yorick. The plaintiff paid the defendant one hundred and eight}' dollars, in advance, for the horse, which was to be delivered to the plaintiff at a future day, on payment of the balance, and if the balance should not be paid on or before that future day, the advance-money should be forfeited.

[In equity. Bill by Abram B. Bayliss and others against the Layfayette, Muncie & Bloomington Railway Company and others. For prior proceedings in this litigation, see Case No. 1,140.] Abram B. bayliss filed a bill to foreclose, on the western division of the railroad, a mortgage of which he was the trustee. Afterwards Joseph Colwell filed a cross-bill to foreclose a mortgage of the eastern division of the railroad, of which he was trustee.

[In equity. Bill by Martha Bayliss, dev-isee of Samuel S. Bayliss, deceased, and administratrix of his estate, against the board of supervisors of Pottawattamie county, (the city of Council Bluffs, intervenor.) This suit involves the right of the plaintiff and the city of Council Bluffs (since the county sets up no claim in its own behalf or as the representative of the public) to what is called the “public square” in that city.

<p>Case No. 1,143.</p> <p>Ejectment—Practice—Death or Lessor.</p> <p>1. A demise in the name of a dead man will be stricken out on motion. And so, if the lessor of the plaintiff be dead, at the commencement of the suit.</p> <p>2. The death of the lessor does not abate the suit. The title is supposed to be in the plaintiff.</p> <p>3. A title acquired after the date of the demise, cannot sustain the action.</p>

[Petition for review of a decision by the district court of the United States for the district of Louisiana.] In bankruptcy. On petition of review of Paul Fourehey. Held: in the bankruptcy proceedings, a meeting and accepted a composition proposed by them, to wit: The payment of twenty-five cents on the dollar, one-half on the confirmation by the court of the composition proceedings, and the other half in sixty days thereafter.

<p>[At law. Action by G. M. Bayly and Pond against the London & Lancashire Insurance Company. On motion for new trial.</p>

<p>Case No. 1,148.</p> <p>Collision—Extraordinary Precautions in Harbor-Sailing Vessel in Fog—Signals—Custom or Long Island Sound.</p> <p>1. A steam vessel running into harbor, or through the common thoroughfare of other vessels, is bound to take extra precaution against collision with sailing vessels; and in the night, or in case of a fog, must move with great circumspection, or even lay-to or anchor, according to the danger of encountering other vessels.</p> <p>[Cited in The Rocket, Case No. 11,975.]</p> <p>2. A sailing vessel at anchor or lying-to in a dark night or in a dense fog, is also bound to take such precautions as may be in her power, to give warning of her position to other vessels, whether steamers or vessels under canvas, which may be nearing her.</p> <p>3. Under the usages of navigation upon Long Island sound, the blowing a horn, the ringing a bell, or the beating upon an empty barrel or upon an anchor, is a reasonable precaution which a sailing vessel lying-to in a fog is bound, as towards a steamer which may come in collision with her, to take, in warning off such steamer. (Since reversed.)</p> <p>[Cited in Jones v. The Hanover, Case No. 7,466. Disapproved in The Rockaway, 19 Fed. 452.]</p> <p>[See note at end of case.]</p> <p>4. The rule of equal contribution should be applied in cases of damage caused by a collision for which both colliding vessels are mutually in fault.</p> <p>[Cited in The Atlas. Case No. 633; The Comet. Id. 3,050; Vanderbilt v. Reynolds, Id. 16,839.]</p> <p>NOTE, [from original report.] The case was appealed to the circuit court,—The Bay State, [Case No. 1,150,]—where it was held, as in the district court, that the steamer was shown to be in fault in her manner of navigating. But it was further held, that the proofs in the cause did not warrant the court to say, that as matter of fact, there was a usage of blowing horns, &c., on board of sailing vessels becalmed in a fog, under which the schooner was bound to take such precautions in warning off the steamer. The decree was. therefore, reversed, as to the point that the schooner was herself in part to blame; and a decree ordered for the libellants for the full amount of their damages. This reversal of the decision reported in our text, has been by some of the profession understood to proceed upon the ground, that as between a sailing vessel or steamer approaching in a fog, the whole duty of precaution to avoid collision rests upon the steamer, and the sailing vessel is free from obligation to employ any means or methods of giving notice of her proximity. We suggest, however, that the decision in the circuit court, fairly construed, goes no further than to hold that, as matter of fact, the evidence in the case showed'that none of the precautions suggested as having been within the power of the sailing vessel — blowing horns, beating empty barrels, &c.—would have been of any practical avail in notifying the steamer of the danger; and so, that the sailing vessel was not to be held guilty of negligence in failing to employ means of notice, which, if employed, would in all probability have done no 1 good. The general principle that a sailing vessel, aware of the approach of a steamer in darkness or fog, and having: at command adequate means of giving notice of her proximity, is bound to use those means, does not seem to us to be impugned by the decision in the circuit court. She is not, however, it would seem, guiity of negligence in failing to use means, which it appears would be insufficient if used. The decree of the circuit court was affirmed by the supreme court, in December, 1855, upon the grounds assigned in the circuit court. The case in the supreme court is reported under the title of IXcCready v. Goldsmith. IS How. f59 TJ. S.] 89. [See note at end of Case No. 1,150.]</p>

In admiralty. This was a libel in rem, filed in the district court, by the Norwich and New Dondon Steamboat Company, owners of the steamboat Worcester, against the steamboat Bay State, to recover damages for a collision. In the district court, there was a decree for the libellants. The claimants appealed to tliis court. The facts are sufficiently stated in the opinion of the court.

<p>Case Ho. 1,150.</p> <p>Collision'—Speed in a Fog—Signals by Sailing Vessel — Mutual Fault — Apportionment op Damages.</p> <p>1. Held—That whether the speed of a steamer be excessive and culpable, depends upon the circumstances of the case. That the speed of sixteen or seventeen knots during a dense fog, and upon a frequented track, was grossly improper.</p> <p>[See note at end of case.]</p> <p>2. Held—That a vessel becalmed under canvass, in the track of a steamer, under such circumstances, was not culpable for omitting to use fog horns, or other measures, which the evidence showed would have been of no avail.</p> <p>[See note at end of case.]</p> <p>3. The rule of apportionment, where fault exists on both sides, is considered by the supreme court to be the admiralty rule to be adopted by the courts of the United States.</p> <p>NOTE, [from original report.] After delivering the above opinion, counsel suggested whether the rule of apportionment adopted by the court below was coincided with, and to be enforced in cases of fault on both sides. Judge Nelson observed that it had been before the supreme court, and by them the English rule was regarded as the one to be recognized by the admiralty courts of the United States. The rule of apportionment would seem to have been recognized as early as 1843,—Strout v. Foster, 1 How. [42 U. S.] 92,—and to be applied whenever the proper case was presented,—Stainback v. Rae, 14 How. [53 U. S.] 538; The Bay State, [Case No. 1,148;] The Jamaica, [Id. 7,173.]</p> <p>[NOTE. This decree was affirmed by the supreme court in McCready v. Goldsmith, 18 How. (59 U. S.) 89. Hr. Justice Nelson, in delivering the opinion, adopted the language of the circuit court in the principal case, as to the negligence of the steamer in running at so high a rate of speed. In respect to the failure of the schooner to make her position known by signals, the learned justice said: “A good many witnesses have been examined as to the usage of vessels navigating the Sound, in respect to the blowing of horns, beating of empty barrels, and the like, in thick and foggy weather; but, on looking carefully into the testimony, it will be found that no such general or established usage has been proved. * * ** Without much more evidence of the usage, and of its utility in preventing collisions, than is shown in this case, we cannot say that the omission to comply with it is of itself chargeable as a fault against the schooner. * * * Besides, we are not satisfied, upon the evidence, that the precautionary measure of blowing horns, or ringing a fog bell, would have been of any avail under the circumstances of this case. * * * The steamer, as we have seen, was moving at a rate of more than a mile in four minutes; and taking into view the size of the Bay State, with her powerful engines, together. with this rate of speed, it is quite apparent, that, if a horn could have been heard at all, it could not, upon any reasonable conclusion, in time to have materially influenced the result.”]</p>

This was an action to try the right of the plaintiff to his freedom under the will of Mrs. Turner, which was in these words: “I will that my slaves be sold by my executors, for the folio-wing terms: Bazil for eight years,” (and others for other terms,) “and the money arising from the same I desire shall be applied in the following manner, to wit,” C. Lee, for plaintiff, cited Bade v. Alexander, 1 Wash. (Va.) 30; Mayo’s Lessee v. Car-rington, Id. 45; New Rev. Code, 191, § 36.

In admiralty. This was an appeal from a decree in the admiralty [of the district court of the United States for the eastern district of Pennsylvania,] in which a party claimed compensation from ship-owners for his goods lost at sea, while on their vessel. The case was thus: [Xavier] Bazin, the libellant, was a retailer of French perfumery, in Philadelphia.

<p>[In admiralty. Libel by Henry C. Beach against the schooner Native (George Cornelius, owner) for supplies.</p> <p>[Subsequently an appeal was taken to the circuit court, and a decree of reversal by default entered in favor of libellant. This was afterwards waived, and, upon the merits, a decree was entered in favor of libellant. The Native, Case No. 10,054.]</p>

Beach for his invention of a new and useful improvement in printing presses, and awarding priority of invention to Stephen D. Tucker, for which said invention a patent was issued to him in 1856, and which said patent he was in the enjoyment of for a period of nearly two years. [The commissioner’s .decision was set aside.]

In equity. The bill stated that Stephenson made a mortgage of certain lands to [Richards] the testatrix of the plaintiff in March, 1773, which was duly recorded according to law, the mortgage having been made for securing a debt due to the testatrix. In 1777 the mortgagor died, leaving his heir at law, who under the laws of New Jersey was at-tainted of treason, for joining the enemy; and the commissioners of forfeited estates sold the mortgaged premises to the defendant.

<p>In bankruptcy.</p>

<p>[In bankruptcy. Heard on objections to the discharge of the bankrupt.</p> <p>It appeared that in 1866 the bankrupt carried on business in Boston, in partnership with one Ricker; and in the autumn of that year he bought for the firm a large quantity of goods on credit, and disposed of them in various ways, which his creditors thought to be fraudulent, under the insolvent laws of Massachusetts; and upon their petition the firm was adjudged insolvent. Their books were never found by the assignees, and the goods were never accounted for, and no discharge was ever granted them. Ricker was then and since a resident of New York, and the business here was conducted chiefly by [J. H.] Beal. The judge said that although the law of this state, in most respects, so far as such acts as then alleged against the firm of Beal & Ricker were concerned, was substantially similar to the bankrupt law, yet none of those acts could be set up in bar of his discharge here, because they were all done before the bankrupt law was passed.</p> <p>If we trace goods and books of account into the bankrupt’s possession in 1806, and show that he did not in fact hand them over to his assignees in insolvency, or otherwise account for them, the presumption is that he still has them, and as he has made no return of any such property -or books in his schedules, nor delivered them to his assignees in bankruptcy, he must now account for them, or be deemed guilty of concealment, and fail to obtain his certificate of discharge.</p> <p>[BY THE COURT: This view was adopted for the purposes of the hearing, and all legal evidence that either party offered on these matters was heard subject to the ultimate decision of the questions of law as well as of fact upon full argument, which has now been had.] 2</p> <p>contended that whatever estate he possessed or was entitled to, and whether concealed or not, passed to his firm’s assignees in insolvency, and that they had full power to inquire into all his dealings, and to set aside fraudulent conveyances, and must be conclusively presumed to have done their duty, or whether they did or not, that nothing was left for the assignees in . bankruptcy.. and therefore nothing can have been wilfully concealed from them.</p> <p>[BY THE COURT: I cannot yield my assent to this argument.] 3</p>

THE COURT (MORSELL, Circuit Judge, contra) refused to give the following instruction to the jury, which was moved by R. J. Brent, for the plaintiff, [Thomas K. Beale:] 1.

At law. Action [by Beale against Pettit & Bayard] on a policy of insurance, on goods from Norfolk to Aux Cayes, and on the return cargo. The outward cargo was carried •safely. The vessel took in a return cargo; was captured and carried into Jamaica; and libelled. The vessel, and most of the cargo, was restored, on stipulation to answer the appeal; and the vessel arrived, with the ear-go, in safety, at Norfolk.

At law. This was an action for damages caused by a collision, and was tried before LOVE, District Judge. The negligence of the defendant’s servants was admitted on the trial. The plaintiff suffered a severe and permanent injury. The jury found a verdict for $5,000 against the company, which moved for a new trial on the folio-wing grounds: 1.

At law. Replevin [by Walter B. Beall] for the plaintiff’s slave William, hired to Mr. Easton, who was a boarder at Mrs. Rich’s boarding-house, for whose rent, due to Mr. Archer, the slave was, by his order, dis-trained. The defendant' made cognizance as bailiff of William Archer, for $90 rent arrear due by Mrs. Rich.

In equity. Bill to foreclose a mortgage of real estate in Georgetown, D. C., made by John Peter to T. B. Beall, the plaintiffs’ testator. John Peter afterwards sold the land to Elizabeth Peter, who devised it to the defendants, Margaret Dick and others. The plaintiffs averred that the debt was still due and that the mortgage was a subsisting mortgage, and exhibited an office-copy.

At law. This was an action upon a covenant in a mortgage for payment of money; plea general performance, general replication and issue. contended that the original covenant ought to be produced.

<p>[In bankruptcy. In the matter of Oliver B. Beals, Irving Holland, and Martha A. Smith.]</p>

[In bankruptcy. In the matter of Levi Bean. This was an application by the bankrupt’s wife to prove a promissory note given to her by the bankrupt in consideration of a loan made by her. The register, under the ruling in Bechtel’s Case, Case No. 1,204, decided that both husband and wife were incompetent witnesses. The case is now heard on exceptions to the register’s report. cited Act Pa. April 15, 1869, § 1, (P. L. 30.) cited Const.

[In equity. Bill by William C. Bean, as-signee in bankruptcy of Charles S. Kintzing, against Louis B. Amsinck & Co., for an accounting, and for the recovery of money alleged to have been paid in fraud of the rights of other creditors of Charles S. Kintzing & Co., of which firm Kintzing was a member until a short time before the commencement of the proceedings in. which he was adjudged a bankrupt. [Subsequently, on defendants’ appeal to the supreme court, this decree was…

[Error to the district court of tlio United States for the eastern district of Missouri.] At law. This was an action, by [William C. Bean] the assignee in bankruptcy of Charles S. Ivintzing, brought under the 35th section of the bankrupt act to recover of the defendants [Brookmire and others] the value of certain property alleged to have been conveyed by the bankrupt to them, in fraud of the bankrupt law.

In equity. After the decision of this court in the cause reported above, [Case No. 1.168,] the assignee [William C. Bean] brought the present bill, in the district court for the eastern district of Missouri, to recover money alleged to have been fraudulently paid by the bankrupt to the defendants, [Brookmire and others.] The district court sustained the demurrer to the bill on the ground that no recovery could be had in equity, and that the remedy was exclusively at law,…

In equity. This cause was before the court on a former appeal. Bean v. Brookmire, [Case No. 1,169.] After it was remanded, an answer and replication were filed, testimony was taken, the cause heard on its merits, and a decree entered in favor of the assignee [William C. Bean] for the sum of $1,436.02 and interest against the. defendants Brook-mire & Rankin. The bill was dismissed as to Laflin.

[In admiralty. Libel by Bean and others against the ship Grace Brown, for salvage. The libellants are pilots, from Baltimore, duly authorized to act as such, and claim salvage, for themselves and their respective crews. They propound that while cruising off the capes of Virginia, on the lookout for vessels requiring their services, Captain Bean, on the 8th January, 1841, spied a ship on shore on Smith’s Island flats, which proved to be the Grace Brown, of Baltimore.

[Action by Bean, assignee in bankruptcy of one Ivintzing, against Laflin, to recover money alleged to have been paid by the bankrupt for defendant’s benefit in such wise as to constitute a preference. Heard on a nnjtion for new trial.

<p>Case No. 1,173.</p> <p>Patents roa Inventions—Combination— Novelty.</p> <p>1. A machine is only patentable, when it is substantially new; but the application of an old machine to a new purpose is not patentable.</p> <p>[Cited in Le Roy v. Tatham, 14 How. (55 U. S.) 177; Winans v. Denmead, 15 How. (50 Lr. S.) 347; Bray v. Hartshorn. Case No; 1,820; Sarven v. Hall. Id. 12,309; Northwestern Eire Extinguisher Co. v. Philadelphia Eire Extinguisher Co., Id. 10.337; Alcott v. Young, Id. 149; Couse v. Johnson, Id. 3,2SS; Gottfried v. Crescent Brewing Co., 9 Fed. 706; Worswick Manuf’g Co. v. City of Kansas, 38 Fed. 248.]</p> <p>2. In the present case the invention was held not to be patentable, because it was merely the application of an old apparatus to a new purpose.</p> <p>[Cited in Teese v. Phelps, Case No. 13,819; Hebbard, Ex parte, Id. 6,313.]</p> <p>[3. Cited in Smith v. Downing, Case No. 13,036, to the point that what is patentable is not an abstract principle, but the embodiment of the principle into a machine as described in the specification. • and it is the invention, in conformity to that embodiment or representation of the working, that the acts of congress will protect.]</p>

In equity. This was a hill in equity brought by the plaintiff [Stephen) Bean, against Simon Smith, Ziba Smith, Ahab Smith, Simon Smith, Jr., Esther Stone, William Foster, and Elizabeth Foster, wherein he claimed to be paid, out of certain lands in the possession of the respondents, a debt due to him from Simon Smith, one of the said respondents.

<p>Case No. 1,176.</p> <p>Collision —Negligence in Anchoring—Admiralty Jurisdiction—General Average.</p> <p>1. The allegation of negligently anchoring so near to another vessel, as to come in collision in a storm, repelled. '</p> <p>2. There is no maritime lien created by a general average loss, and consequently the admiralty has not jurisdiction in rem.</p> <p>[Cited in Oologaardt v. The Anna. Case No. 10,545; The Kate Tremaine, Id. 7,022; The John C. Sweeney, 55 Fed. 544.]</p> <p>, 3. Where two vessels at anchor come in collision without fault, and it was necessary, to prevent the destruction of both, for one to slip the cable and go ashore, this gave no claim against the other for a salvage service.</p> <p>[Approved in The John Perkins, Case No. 7,300.]</p> <p>[4. The admiralty jurisdiction extends to actions ex contractu, quasi ex contractu, ex de-licto, and quasi ex delicto.]</p> <p>[Cited in Banta v. McNeil, Case No. 966.]</p>

<p>[In equity. Bill by Eben J. Beane against Thomas M. Orr and others to restrain infringement of a patent. Heard on motion for a preliminary injunction.</p>

[In bankruptcy. In the matter of Isaac Bear, Philip Bear, and Samuel Bear, bankrupts. [For subsequent proceedings on behalf of creditors of the bankrupts, see 5 Fed. 53; 7 Fed. 5S3; S Fed. 42S, 429. For accounting of the general assignee, see Hunker v. Bing, 9 Fed. 277.]

<p>Case No. 1,178.</p> <p>Bankruptcy—Insurance Policy—Rights op Wife and Assignee.</p> <p>[1. Where the husband insures his life for the benefit of his wife, the legal title to the policy is in her; so that, upon his becoming bankrupt, it is not necessary that he should surrender such policy, or list it in his schedule of assets.]</p> <p>[2. Payments of premiums thereon by the husband after he becomes insolvent, however, constitute a fraud on his creditors, whether made with fraudulent intent or not, to the extent that the assignee in bankruptcy is entitled to recover from the wife out of the proceeds of the policy, when it shall have been paid, the amount so advanced by the husband, with interest.]</p> <p>[3. This claim on the part of the assignee, when its amount is ascertained, may be sold by him, and will pass to the purchaser a contingent right in the proceeds of the policy.]</p>

[In equity. Bill by John Bear against H. H. Luse to enjoin certain proceedings at law on the part of Luse to recover possession of certain lots in Marshfield. [Bills were also filed against the same defendant, for the same purpose, by W. F. Deubmer, George Wolf, Frederick Timmer-man, William G. Webster, A. Lobree, C. B. Golden, and William Temple.

[In equity. Bill by Gabriel H. Beard against Robert B. Bowler for discovery, an account of profits, and an injunction, for the alleged infringement of a patent. Heard on ■demurrer to the plea.

[At law. Writ of right by Henry Beard, William A. Beard, Lewis Hawkins, and Mary, his wife, demandants, against John Rowan, tenant, for 100 acres of land. Tried by jury. [The case was afterwards taken to the supreme court, on writ of error, by the demand-ants, and the judgment of this court was affirmed. Beard v. Rowan, 9 Pet. (34 U. S.) 301.]

[In bankruptcy. Application by Alfred Beardsley for a discharge in bankruptcy, which was opposed by his creditor. Reference to the register to take testimony as to the ground of opposition specified.]

[In bankruptcy. On application of Alfred Beardsley for a discharge in bankruptcy, which is opposed by a creditor. Reference was made to the register to take testimony as to the ground of opposition specified. See Case No. 1,183.

[At law. Action by James H. Beardsley against John M. Littell and Russell W. Chace for damages for infringement of letters patent. Plaintiff applies for an order for defendant Littell to be examined as a witness before trial.

<p>Case No. 1,186.</p> <p>Collision—Steam and Sail—Bukden op Pkoop</p> <p>[1. Where a steamer collides with a sailboat,, and injures her, and, on libel for damage?, fails to show that the sailboat was in fault, the steamer is liable, especially where there is no evidence that the steamer had a lookout forward.]</p> <p>[2. It is immaterial that the steamer reversed her engines, or even that she had a backward motion, before the collision took place, where she wrongfully came so near the sailboat that the latter must inevitably have come against her by the current, suction, or other force beyond her control.]</p>

<p>Case No. 1,187.</p> <p>NEGLIGENCE—Da XGEROUS PREMISES —EXCAVATION in Sidewalk—Damages.</p> <p>1. In the use of his own property, a man must be careful not to injure his neighbor.</p> <p>2. An excavation of the sidewalk, opposite his own house, for a vault, being authorized, provided he kept it covered, but being left uncovered, the plaintiff at night fell into it, and was injured—held, that the defendant was responsible.</p> <p>3. To sustain the action, the plaintiff must show that he used ordinary caution, and that the defendant was negligent.</p> <p>4. In estimating the damages, the jury will consider the injury done, the pain endured, the time lost, and the expense incurred.</p>

[At law. Suit for libel by Horace Beardsley and John Beardsley against Lewis Tap-pan, proprietor of a mercantile agency. Heard on demurrer to the declaration. Demurrer overruled, with leave to the defendant to amend. [Subsequently, the case was tried by a jury. The charge was delivered by Betts, District Judge, (Case No. 1,188a,) and verdict given for plaintiffs for $10,000 damages.

[At law. Suit for libel by Horace Beardsley and John Beardsley against Lewis Tap-pan, proprietor of a mercantile agency. A demurrer to the declaration was overruled, (Case No. 1,188,) and tne case tried by jury. [Subsequently, a motion for a new trial was refused,—Case No. 1,189,—and defendant, by writ of error, took the case to the supreme court, where the final judgment was reversed, and a new trial awarded,—Tappan v. Beardsley, .10 Wall.

<p>Case No. 1,189.</p> <p>Mercantile Agencies — Libel and Slander —1 Pkivileoed Communications — Employes op Principals.</p> <p>1. The defendant conducted a mercantile agency in the city of New York, the object of which was to procure information of the pecuniary ability and standing of merchants in the country for merchants in the city, to be communicated to the latter in a confidential manner. He had some twenty clerks to whom the information obtained, and which was recorded in a book, was communicated, and who participated in communicating it to the customers' of the agency or to their clerks. The defendant communicated, through his clerks, to several customers and to their clerks, facts seriously affecting the credit of the plaintiff, as a merchant: Held, that the communication was not of a privileged character.</p> <p>[Questioned in Erber v. Dun, 12 Fed. 535; Trussell v. Scarlett, 18 Fed. 216.]</p> <p>2. The principle upon which privileged communications rest, which, of themselves, would otherwise be libeiious, imports confidence and secrecy between individuals, and is inconsistent with the idea of a communication made by a society or congregation of persons, or by a private company or a corporate body.</p> <p>[Contra, see Trussell v. Scarlett, 18 Fed. 214; Cossette v. Dun, 18 Can. Sup. Ct. 222; Locke v. Bradstreet, 22 Fed. 771.]</p> <p>[NOTE. On writ of error, the supreme court reversed this judgment, and awarded a new trial, upon the ground that the whole record in the divorce proceedings pending between John Beardsley and his wife was improperly introduced in evidence and read to the jury. Mr. Justice Miller, in delivering the opinion of the court, did not touch upon the points considered by the circuit court in the reported opinions. Tappan v. Beardsley, 10 Wall. (77 U. S.) 427.]</p>

[At law. Ejectment by Beardsley against Seymour Spafford and David Torrey.] Rule obtained by the plaintiff to show cause why the record in this suit should not be remanded to the state court, from which it was sent to this.

<p>[In the matter of the bankruptcy of William F. Beams.]</p>

<p>Case No. 1,193.</p> <p>Shipping—Carriage op Goods—Dangers of the Seas — Liability for Damage — Burden of Proof—Recoupment from Freight Money.</p> <p>1. Under the common bill of lading, the carrier is not necessarily exonerated from liability for damage, although he take the usual care and precautions, and convey the goods in the usual manner.</p> <p>2. Where goods shipped under such bill of lading, are damaged on the voyage, and the carrier claims to be exonerated, on the ground that the damage was caused by the danger of the seas, the burden of proof is upon him.</p> <p>[Cited in The Wilhelmina, Case No. 17,658; Richards v. Hansen, 1 Fed. 61. See, also, Hunt v. The Cleveland. Case No. 6,885; Turner v. The Black Warrior, Id. 14,253; The Zone. Id. 18,220.]</p> <p>3. Where damage to hemp was occasioned by oil, which had escaped from casks in the hold, and the escaping of the oil was not caused by the danger of the seas: Held, that the carrier was liable for such damage to the hemp. Sem-ble.—Where hemp is damaged by water’s “blowing” in the hold, the weather being good during the voyage, and there being no extraordinary occurrence, and no unusual quantity or motion of water in the hold, the carrier is liable.</p> <p>[Cited in The Wilhelmina, Case No. 17,658; Richards v. Hansen, 1 Fed. 61. See, also, The Sabioncello. Case No. 12,198; The Sloga, Id. 12,955; Crosby v. Grinnell, Id. 3,422.]</p> <p>4. The carrier ought to take adequate measures to protect the cargo against a common and ordinary occurrence, which might and ought to have been foreseen.</p> <p>[Cited in The Antoinetta C., Case No. 491; Richards v. Hansen, 1 Fed. 61.]</p> <p>5. In a suit by a carrier for freight, the respondent set up, in defence, damage to the goods. The court being of opinion, that the carrier was liable for such damage, and that it exceeded the amount of the freight, dismissed the libel.</p> <p>[Cited in Kennedy v. Dodge, Case No. 7,701; Ebert v. The Reuben Doud, 3 Fed. 522; The Two Brothers, 4 Fed. 159. See, also, Snow v. Carruth, Case No. 13,144; Thatcher v. McCulloh, Id. 13,802.]</p> <p>NOTE, [from original report.] See The Martha. TCase No. 9,145;] Lamb v. Parkman, [Id. 8,020.]</p>

[Appeal from the district court of the United States for the district of Massachusetts.] In admiralty. Held: that the evidence clearly showed, that When the libellants first began their enterprise, it was approved by the owners, and that this approbation was afterwards repeated, 'until the agent of the owners forbade them to proceed farther, unless they would agree to work for one third of the proceeds.

<p>[At law. Libel by Samuel Beataugh against John T. Nicholson for wages and damages for assault.</p>