Volume 21 — Federal Cases

<p>Case No. 12,138.</p> <p>Bankruptcy — Debt Created bt Fraud — Action ix State Court to Determine Amount of Claim.</p> <p>A debt created by fraud is provable under the bankrupt act [of 1867 (14 Stat. 517)]. Where amount due to a creditor is in dispute in a state court the court of bankruptcy may allow the suit to proceed for the purpose of ascertaining the amount due, but execution will be stayed if the debt is such as will be discharged by a discharge in bankruptcy.</p> <p>[Cited in brief in Scott v. Olmstead, 52 Vt. 212.]</p>

In the year of 1771, the provinces of Pennsylvania and New Jersey respectively passed an act — Act Pa. March 9, 1771 (1 Smith's Laws, 322); Act N. J. Dec. 21st (Allinson's Laws, 347) — declaring the river Delaware which separates them to be “a common highway, for the purposes of navigation,” and appointing commissioners with full power and authority to remove all obstructions in the channel, whether natural or artificial.

[This was a libel in rent for seamen’s wages.] The mate of the brig Rupee libelled the vessel for wages, at the rate of twenty-five dollars a month, for several months beyond the time specified in his first article, in which that sum was stipulated, no stated wages having been stipulated in the two subsequent articles under which he served.

<p>In bankruptcy.</p>

The plaintiff having recovered a judgment at law against the county, applied to the court for a mandamus, directed to the supervisors, commanding them to levy a tax for the purpose of raising the money to pay the judgment. The supervisors made a return to the writ, setting forth matters by which they sought to excuse their disobedience of the order of the court.

[This was a libel by William J. Rusk and Andrew Byers, owners of the steamboat Belle Creole, against the steamboat Freestone, to recover damages sustained by collision.]

[This was a libel for wharfage by George B. Russel against the Asa R. Swift.] This case was fully argued with the following case of Russel v. The Empire State. For the arguments of counsel, see [Case No. 12,145].

In admiralty. George B. Russel, libelant, was the lessee, from the city of Detroit, of the wharf at the foot of Woodward avenue, one of the principal streets of the city. When the city was originally laid out, under authority of congress, Woodward avenue was laid out and platted to the Detroit river. It has subsequently been extended by filling up, and the erection of a wharf, some 300 or 400 feet into the river, which wharf is the one in question.

This was a policy effected by the plaintiff, for all persons interested, on goods on board the Hibberts, at and from Havana to New York, to the amount of ten* thousand dollars. The vessel and cargo were taken by a British ship of war; and it appearing, that the vessel and cargo belonged to British subjects, that they had been captured and carried into the Havana, and there proceeded against, she was ordered to be delivered up to the original owners, on salvage.

This cause came on upon a rule for a new-trial. [Case No. 12,146.) The ground was,, that the court was mistaken in point of law, in stating that the papers, which respected the interest of the plaintiff, in the record of the-admiralty court at Halifax, was evidence, and therefore, that the plaintiff, not having-proved his interest by other evidence, ought, not to recover.

<p>In bankruptcy.</p>

Charitable trust for the education of youth in St. Louis county, Missouri, sustained. This is a bill in equity by the heirs of William Russell, deceased,. to subject to their demands certain funds in the hands of Allen, by him received in connection with the grants made. A demurrer to the bill is interposed.

<p>[This was an action by William Russell against Chester Ashley. Heard on a motion for retaxation of costs.]</p>

<p>[This was a libel by Anthony Russell against Frederic ,T. AY. Barkman.]</p>

<p>[This was an action in ejectment by James B. Russell against John Barney.]</p>

<p>[This was a bill in equity by William Russell, against Roswell Beebe, George C. Watkins, Mary W. W. Ashley, executrix of Chester Ashley. William E. Ashley, Henry C. Ashley, aud Mary A. Freeman.]</p>

[This was a libel for salvage by William Bussell and others against the proceeds of 40 bales of cotton, derelict. The United States intervened praying a decree in their favor for the remnant after payment of salvage.]

<p>Case No. 12,156.</p> <p>Mortgages — Junior Mortgagee — Equitable Relief.</p> <p>1. A mortgagee has a right to pay off prior incumbrancers, and be substituted to their rights.</p> <p>[Cited in Kittering v. Parker. 8 Ind. 53, note U</p> <p>2. Where two persons have liens on the same property for different debts, and one of them has, also, a lien on other property, chancery will direct such property to be first sold, before that which is common to both liens.</p> <p>[For an action of ejectment, brought by the same parties, see Case No. 12,163.]</p>

[This was a judgment at law, obtained by William Russell against James H. Lucas. Heard on motion for a scire facias.] Scire facias to revive judgment.

[William Brummeller and Vanderwerp were partners in the boot and shoe business. Thomas Griffin was a creditor, as was also Henderson & Co., and others. On the 24th of. August, 1870, Henderson & Co., by their agents, applied to the debtor firm for a statement of their affairs, and obtained an exhibit showing that they owed three thousand dollars, and had assets amounting to two thousand one hundred dollars.

This was a bill in equity to compel a further account by [Isaac] McLellan, who had been joint owner with the complainant, [Joseph Russell,] either as co-partner or member of a corporation in a factory situated in Framingham, in this state, and had been agent for it many years.

<p>Assumpsit on a letter of guaranty, addressed by the defendants [James and T. H. Perkins] to the plaintiff, at Charleston, S. C., as follows: “Boston, December 9, 1802. Nathaniel Russell. Esq. — Dear Sir: Should our friend, Mr. Josiah Sturgis, require your support in his negotiations at the banks, we hereby agree to guarantee any notes you may endorse for him to the amount of ten thousand dollars. And we shall feel ourselves obliged by any kindness or favors you may think proper to afford him. We are,” &c. The cause came on to be tried upon the plea of the general issue; and upon the statute of limitations pleaded by the defendants. At the trial it appeared that Mr. Sturgis was the brother-in-law of the defendants, and that at the time of the writing the letter of guaranty, was in insolvent circumstances; but contemplated renewing business at Charleston, S. C. The letter of guaranty was delivered to the plaintiff, who. upon the re-commencement of business by Sturgis, upon the faith of the letter of guaranty, endorsed notes of Sturgis at the banks at Charleston from time to time during the year 1803, for sums exceeding in the whole, ten thousand dollars. In January, 1804, Sturgis formed a partnership with a Mr. Lovell, under the firm of Sturgis and Lovell, which partnership was well known to the defendants, and continued until dissolved on their failure in August, 1816. After the formation of the partnership, the various notes of Sturgis, endorsed by the plaintiff, were taken up at the several banks, as they became due, and new notes in the partnership name, endorsed by the plaintiff, were given to the same banks by way of renewal, in lieu of the old notes. And these last notes were renewed from time to time in the same manner, until the dissolution of the partnership in 1816. After the dissolution of .the partnership, Sturgis made the three several notes, on which the suit was brought, viz. one dated 5th October, 1816, for $2565, endorsed by the plaintiff, payable at the Union Bank; a second, dated the 7th of October, 1816, for $5900, endorsed by the plaintiff, payable at the State Bank of South Carolina; and a third, dated 31st December, 1816, for $1535, endorsed by the plaintiff, payable at the South Carolina Bank. These notes were paid by the plaintiff as they became due; and they were made for the purpose of taking up notes for lesser sums, then due to the said banks, on the notes of Sturgis and Lovell, endorsed by the plaintiff, which had been given in the manner before stated, in lieu of the notes of Sturgis, endorsed by the plaintiff before the partnership. After payment of these three notes, the plaintiff in March, and again in June, 1816, gave notice thereof to the defendants, and claimed an indemnity for the amount under their letter of guaranty. The defendants never returned any answer. The plaintiff never at any prior time gave any notice to the defendants, that he had made any advances under the guaranty; or that he had endorsed the partnership notes of Sturgis and Lovell, under the faith of the guaranty. But there was some evidence in the case, from which, if believed, it might be inferred, that the defendants as early as 1806 knew, that the plaintiff did continue to endorse the papers of the firm, and that in the opinion of the firm of Sturgis and Lovell it-was done under the guaranty.</p>

<p>Case Wo. 12,161.</p> <p>Patents — New Tri al — Excess op Verdict — Increase or Damages.</p> <p>1. In an action at law for the infringement of letters patent, the jury found a verdict for the plaintiff, for $700 damages. On a motion by the defendant for a new trial, the court was of opinion that the evidence, tending to prove actual damages sustained by the plaintiff, did not warrant a verdict for a greater amount than $562-50: Held, the plaintiff might be allowed to remit the excess, instead of being required to submit to a new trial.</p> <p>[Cited in Warren v. Robertson, Case No. 17,-198a.)</p> <p>2. It appearing that the infringement was deliberate and intentional, and the plaintiff asking, under the statute, for an increase of the actual damages found, the court awarded judgment for $1,200 and costB.</p> <p>TCited in Burdett v. Estey, 3 Fed. 571.)</p> <p>3. The defendant was allowed to require the plaintiff to first remit the amount of the excess of the verdict, or submit to a new trial, the order of the court thereupon to award the plaintiff judgment as aforesaid.</p> <p>[Por other cases involving this patent, see Russell v. Klein. 19 Wall. (83 U. S.) 433: Russell v. Dodge, 93 U. K. 460; Russell v. Place, 94 U. S. 606.]</p>

To the Honorable the Judges of the said Court: Craig Biddle, a commissioner duly appointed by your Hon. Court, to take bail and affidavits, respectfully represents: That one John L. Thomas, on the 20th day of October, A. D. 1873, presented to him a petition, alleging that he was held in custody by the marshal of this district, by virtue of a capias ad satisfaciendum issuing out of your Hon. Court, to collect a debt of $935.38, and asking that he be discharged from said…

<p>Case No. 12,163.</p> <p>Corporatioxs— Right to Hold Real Estate — Estoppel — Mortgages—Foreclosure.</p> <p>1. A person mortgaged certain tracts of land to the plaintiff, and afterwards mortgaged some of the tracts to the State Bank of Illinois. The plaintiff having foreclosed his mortgage, the court decreed a sale of the mortgaged premises. At the sale the plaintiff and the bank were competitors in bidding, but the bank became the purchaser of a lot not included in its own mortgage. in order to protect itself and prevent the property from being sacrificed. By its charter the bank was prohibited from purchasing real estate, except what was required for its business. or such as was mortgaged or conveyed for debts, or such as had been purchased h.v it on judgments, or obtained on debts: .Held, that the bank had not the legal capacity to acquire the title to the lot at the sale.</p> <p>[Distinguished in Blunt v. Walker, 11 Wis. 351. Cited in brief in Ray Co. v. Bentley, 49 Mo. 238.]</p> <p>2. The plaintiff received the purchase money, and the mortgagor being otherwise indebted to him, he brought suit against him, recovered judgment, issued execution, levied on and sold the same lot. The plaintiff purchased the lot at this sale, and received a deed from the proper officer. The plaintiff, notwithstanding his receipt of the purchase money, has the right to contest the validity of the sale to the bank.</p> <p>3. The plaintiff and the bank being competitors at the sale, and the plaintiff having in no way induced the bank to bid in the property, the law of estoppel in pais does not apply to the case.</p> <p>4. By the common law every corporation had the right to purchase, hold, and convey real estate. This right has been restricted in England by the statutes of mortmain. In modern times, however, the legiolature generally prescribes in the charter some limits to the power of a corporation to purchase and transfer real property.</p> <p>5. It is a principle universally acknowledged, that a corporation can only act in the manner indicated in its charter. Any thing absolutely prohibited by its charter, if attempted to be ilone, is a nullity.</p> <p>[Cited in Alabama & C. B. Co. v. Jones, Case No. 126.]</p> <p>6. A title by deed implies a contract, or at least, competent parties. A deed to a person having no existence,' is generally inoperative, and passes no title from the grantor. If a man grant his estate to an imaginary corporation, no title passes, and it is precisely the same if it. is granted to a real corporation, rendered incapable by its chai ter, of taking the grant. As to that particular faculty, it is not a corporation.</p> <p>TCited in Harriman v. Southam, 16 Ind. 190.]</p> <p>7. Whatever may be the rule in some of the states, where the doctrine of strict foreclosure, prevails, in Illinois, the uniform practice both' at law and in equity is, to order a sale of the mortgaged premises.</p> <p>8. The modern authorities regard a mortgage merely as a security for the debt, and until a sale takes place under an order of the court, the title to the mortgaged property is in the mortgagor, subject to the incumbrance.</p>

[Error to the district court of the United Slates for the Southern district of New York.] [This was an action by the United States against William J. Russell and others. There was a verdict for plaintiff in the district court, and defendants brought error.]

<p>Case No. 12,164a.</p> <p>Forcible Entry and Detainer — Appeals—-Summons — Construction op Statute — Verdicts.</p> <p>1. In forcible entry and detainer, the right of having the proceedings reviewed by a higher tribunal in the mode pointed out by law, is allowed to the defendant as well as the complainant.</p> <p>2. In forcible entry and detainer, if the summons contains the substance of the complaint so as to apprise the defendant of the nature and extent of the claim, it is sufficient without reciting the complaint fully.</p> <p>3. Where a limited jurisdiction is conferred by statute the construction ought to be strict as to the extent of jurisdiction; but liberal as to the mode of proceeding.</p> <p>4. Although a verdict is informal, yet if the substance of the issue has been found, it is good, for a verdict is not to be taken strictly like pleading, and courts will mould a verdict into form aeeording'to the real justice of the case.</p>

Assumpsit [by George R. Russell and others against Timothy Wiggin and others). The declaration contained a count, upon a promise to accept certain bills of exchange stated therein; and also the money counts. The cause came before the court upon the following agreed state of facts: On the fourth day of November, 1835, the defendants granted to Ebenezer Breed a letter of credit, of which the following is a copy: “Boston, Nov. 4, 1835.

[Final hearing on pleadings and proofs. Suit brought upon letters patent [No. 72,946], for “improvements in reversible locks and latches,” granted to Rodolphus L. Webb, December '31, 1867, and assigned to complainants. The invention is illustrated in the accompanying diagram. [The left-hand figure represents a case containing an ordinary lock mechanism in the lower part, and, in the upper part, the reversible latch shown in the two detached views on the right.

[This was a bill in equity by the Russell & Erwin Manufacturing Company against the P. & F. Corbin Manufacturing Company and Frederick H. North for the infringement of letters patent No. 72,946, granted to R. L. Webb, December 21, 1867.)

<p>Case No. 12,168.</p> <p>Collision — New Youk Harbor —Vessel at Anchor — Inevitable Accident — Harbor Regulations — Jurisdiction — Suits between Foreigners.</p> <p>1.A British steamship, coming into the harbor of New York, ivas swung by the ebb tide, which forms a rip where the tides from the North and East rivers meet, against an Austrian ship, lying at anchor, and sunk her. The ship had come in from sea the day before, and had anchored where she was sunk, and no notice to remove from that anchorage had been given to her by the harbor masters: Held, that the court of admiralty was not called upon, by the fact that all parties concerned were foreigners. to decline, from motives of international comity, to exercise jurisdiction in the case. *</p> <p>[Cited in Bernhard v. Creene, Case No. 1,-349; The Belgenland, 114 U. S. 367, 5 Sup. Ct. 866; The Topsy, 44 Fed. 636.]</p> <p>2. The effect of the tide upon the steamer was not an inevitable accident.</p> <p>3. The ship being anchored in 'a customary place, and where no state law or city ordinance forbade anchoring, any general regulation of the harbor masters, forbidding her to anchor there, must be held to have been waived in her behalf, by the failure to give her notice to remove.</p> <p>[Cited in The John Tucker, Case No. 7,431.]</p> <p>4. The ship having come in from sea in a seaworthy condition, the fact that she was sunk by the blow of the steamship did not establish that she was not "tight and strong.”</p> <p>[5. Cited in Robinson v. Fifteen Thousand Five Hundred and Sixteen Bags of Sugar, 35 Fed. 603, to the point that, when a libellant agrees to accept a certain sum of money in settlement of his demand, that sum becomes his claim, within the meaning of the statute.]</p> <p>[For a hearing on exceptions to the commissioner's report, see Case No. 12,169.]</p>

In this case, the Austrian ship Figlia Mag-giore, which had arrived in New York harbor from a foreign port, was sunk at her anchorage, in a collision with the Russia, for which the Russia was held responsible. [Case No. 12.16S.] Exceptions were filed by the claimants to the report of the commissioner as to the damages.

<p>Case No. 12,170.</p> <p>Marshal’s Costs — Payment of a Decree is a Settlement. !</p> <p>A libel having been ñled against a steamer, she was seized under process issued on it, and was discharged from that arrest on a stipulation for value having been given. Subsequently a final decree was rendered against her for $148.700, and that sum was paid into the registry of the court by the claimants, without an execution having been issued or a sale of property having taken place. Thereupon, the marshal by whom the original process was served, but who 'had, in the meantime, gone out of ofiice. presented to the clerk for taxation a bill for his commissions on the 8148.700. under the fee bill of February 26th, 1853 (10 Stat. 161), as on a settlement of the case. The clerk declined to tax the bill, and the marshal appealed: Held, that the payment of the money under the decree was a settlement of the claim by the parties, within the language of the fee bill, and that the marshal was entitled to the commission. The case of Bone v. The Norma [Case No. 1,626], criticised. ¡ ¡ : : ¡ ; : : ' ;</p> <p>[Cited in The City of Washington, Case No. 2,772; The Clintonia, 11 Fed. 741; The Scottish Dale, 65 Fed. 811.] ■</p>

<p>[In the matter of Elam Rust, an involuntary bankrupt]</p> <p>This case came before the court on the petition of the assignee of the bankrupt.</p>

The 14th section of the bankrupt law of March 2d, 1867 (14 Stat. 522, 523), excepts from the operation of the assignment of a bankrupt’s estate, his necessary household and kitchen furniture, and such of his other articles and necessaries, not exceeding in value, in any case, $500, as shall be designated and set apart by the assignee, having reference in the amount, to the bankrupt’s family condition and circumstances; also his wearing apparel, and that of his wife and…

Slander. The plaintiff offered J. A. as a witness. objected that the witness had declared his disbelief in a future state of rewards and punishments, and stated that he had witnesses ready to prove such declarations.

In equity. On the eighth day of November, 1867, Samuel Wolf made a deed, in which his wife joined, conveying a lot of land and house in Petersburg, to Eli Kull, a brother-in-law; the property being alleged to have been worth about 82,000, and the purchase price set forth in the deed being $1,700. Eli Kull was one of the sons of Jacob Kull, and a member of the firm of Jacob Kull & Sons.

This was an action to recover the amount, with interest, of a subscription made by the defendant [William A. Crocker], June 1st, 1847, to the capital stock of the Champlain and Connecticut River Railroad Company, a corporation created by the legislature of Vermont, and the name of which was subsequently changed to that of the plaintiffs in this suit.

In admiralty. This was a libel for salvage. The bai'que Ferris, a British vessel, left New ‘York with a cargo of naval stores, rosin, tar. &c., on board, upon the 14th Feb’y. 1800. bound for tlie port of Liverpool. After proceeding about two days upon her voyage, the vessel began to labor heavily, shipping large seas on deck, when the pumps were sounded and five feet •of water were found in the hold.

[Appeal from the district court of the United States for the Eastern district of New York.] This was a libel in rein, filed in the district court, by. the owner of a canal-boat which was:in tow of the steam-prophller R. W. Burrowes, against her and the steamboat' Bordentown, to recover for injuries sustained by the canal-boat through a collision which took place between such canal-boat and the Bordentown, in the Kills, between Staten Island and New Jersey.

Attachment, on the act of assembly of Virginia, issued by a justice of the peace, returnable to the court of hustings for £5 10s. Virginia currency.

<p>Case No. 12,181.</p> <p>Makjtime Liens — Waivek — Notes Given — Assignment-Extinction — Admiralty —Inteuveners.</p> <p>1. No one can intervene and defend in admiralty in rem, unless it appears by the answer and claim that he has a lien or proprietary interest in the vessel seized.</p> <p>2. The acceptance of a note by the creditor does not waive the lien, unless it was accepted as Davment.</p> <p>3. The lien does not follow the assignment of the note, nor can the assignee, either in his own, or in the name of the payee, maintain an action to enforce such hen.</p> <p>4. When the creditor has disposed of his interest in the claim, the lien becomes extinct, as it is strictly personal.</p> <p>5. If the creditor, as indorser, afterwards pay off the note — this would not revive, or enable him to enforce the lien.</p>

<p>Case No. 12,182.</p> <p>Bankruptcy — Assets — Sale by Assignee —Resale.</p> <p>1. An assignee acting under an order of court directing him to sell the goods of a bankrupt for the highest price he could obtain above a certain minimum specified, must comply with the order, and if it is made to appear to the court that he has not obtained the highest price offered, the sale will be set aside and the assignee directed to refund the amount received, and hold the sale open for higher offers until a day specified, when it shall be closed for the highest offer in cash received up to that time.</p> <p>[Cited in Re Stevenson, 6 Fed. 711.]</p> <p>2. Costs and attorney’s fee of ten dollars ordered to be paid out of the funds belonging to the estate of the bankrupt.</p>

Petition by F. Opitz and others to have the respondent .[Thomas Ryan] adjudged a bankrupt. The cause was heard by the court without a jury, on April 22 and- 23, and submitted.

<p>[This was a libel for salvage by Amos Ryan against the ship Cato.]</p>

<p>On July 25, 1806. congress passed an act granting the alternate sections of public land, not mineral, for a distance of twenty miles on each side of the line of the road, to aid in the construction of a railroad by the California and Oregon Railroad Company (14 Stat. 239). It was-also provided, that “when any of said alternate sections, or parts of sections, shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of, the lands designated as aforesaid shall be selected by said company in lieu thereof,” out of the nearest land within ten miles outside of the lands so granted, etc. The rights of said California and Oregon Railroad Company have become vested in the defendant. The road was located through a tract of land claimed under a Mexican grant to one Manuel Diaz, and at the time of the location proceedings were pending in the courts of the United States for a confirmation of said giant. The said grant was finally rejected as invalid by the supreme court of the United States on March 3, 1873. On October 30, 1874, it was found that there was not sufficient land within the -said forty-mile limit subject to the grant to saCsfy the said grant; and, thereupon, on said iiay, the said defendant selected the land in question, and applied for a patent tlmrefor as lieu lands under the provisions of the act, the said land being an alternate odd section, and lying outside and within ton miles of the said forty-mile limit, and being within the exterior limits of said grant claimed to have been made to Diaz. 1 he register and receiver of the Marys-ville land-office approved said selection December 26, 1874, which approval was affirmed by the secretary of the interior, and a patent in due form was thereupon issued to defendant therefor on March 17, 1875. At the date of said selection said land was public land, said Mexican grant having more than a year and a half before that time been finally rejected, and it was not within any other of the exceptions indicated or implied in the act. Afterwards, on July 14, 1876, the complainant [Michael Ryan], being in all respects qualified, filed an application in due form to be allowed to enter the said land under the homestead act of 1862, paid the proper fees, and received a duplicate receipt therefor from the register and receiver of the land-office of the district. He then filed his bill to restrain the defendant from using its patent, upon the ground that said land was not subject to selection in lieu of the lands specifically granted.</p>

Case for an infringement of a patent for “a new and useful improvement in the manufacture of friction matches for the instantaneous production of light.” Plea, the general issue; with notice of special matters of defence. At the trial, it appeared, that the patent was obtained by Alonzo D. Phillips, of Springfield, Massachusetts, on the 24th of October, 1836 [No. OS], and had since been assigned to the plaintiffs.

[Upon a contract for the run homeward from a foreign port at a stated gross sum, seamen may leave the ship as soon as she anchors in the harbor of her home port] [This was a libel by William Ryan and others against Thomas Green, master of the bark Leverett, for seamen’s wages.] Hiring for run distinguished from- hiring for wages. When liability in former ceases, crew not bound to wait owner’s decision as to disposition of vessel after arrival.

[This was a bill in equity by Martin Ryan against James Young and others.) citing Dillon, Rem. Causes, 19, 28, 77. That the act of March 3, 1873 £18 Stat. 470], did not repeal the second and third subdivisions of section 639 of the Revised Statutes of the United States: New Jersey Zinc Co. v. Trotter [Case No. 10,107]; Cooke v. Ford [Id. 3,173].

This was an action on a bill of exchange, drawn by the defendant on Gardner & Co. in favour of the plaintiffs, which was duly protested, and notice given. The defendant made out the following ease: One Eehart, on the 10th of May, 1800, shipped on board the Mary, a cargo consigned to the plaintiffs, merchants at Copenhagen, for account and at the risk of the shipper. At this time, Echart was indebted to the plaintiffs.

<p>This was a motion to take off the nonsuit ordered at the trial. Ryberg v. Snell [Casé .No. 12,189].</p>

<p>This was a libel filed to recover the damages caused by the refusal to receive on board the vessel certain hogsheads of tobacco, which the libelants alleged the agents of the vessel had agreed to receive on board and carry as freight.</p>

<p>■ [This was a petition by Philo R.'Sabin for leave to foreclose his mortgage in another court.)</p>

On the petition of James Armstrong and others, for the surrender to them of a dividend check, payable to their order.

<p>Case No. 12,197.</p> <p>Mechanic’s Lien — Nevada Act — Construction— Repeal — Bankruptcy—Rights op Assignee.</p> <p>[1. It is the performance of the labor, and not the filing of the account and description, which gives the miner a lien under Act Nev. 1867 (St 1867, p. 48}. which provides that “all miners or other persons performing labor * * * shall have a lien upon said lode,” and that the nrovisions of the mechanic’s lien law of 1861 (St. 1861, p. 35), “respecting the mode of recording, securing and enforcing mechanics’ liens, shall apply” thereto.]</p> <p>[Cited in Re Hope Min. Co.. Case No. 6.681.]</p> <p>[2. A mechanic’s lien exists from the time the labor is begun, under the Nevada mechanic's lien law of 1861, making the lien thereby given preferred from the time the work is commenced, and providing that every person wishing to avail himself of the benefits of the act shall within 60 days after the completion of the building, etc., file his account, etc.]</p> <p>[3. An assignee in bankruptcy takes the realty of the bankrupt charged with a mechanic’s lien theretofore arising for labor performed, and the same may thereafter be enforced by the filing of the account, etc., as provided by law.]</p> <p>[4. An act (Nevada Mechanic's Lien Law 1871; Laws 1871, p. 123) re-enacting in substance prior laws (Acts 1861-67) with some modifications. and repealing those laws in direct terms, where it is plain that it was never intended to destroy rights acquired under the old laws, but simply to consolidate and extend them, will be considered as continuing such laws.]</p> <p>[5. A law in existence at the time labor was performed, giving a right to a lien therefor, and an action to enforce the same, is a part of the contract; and the repeal of the law cannot affect the right to the lien or an action for its enforcement.]</p> <p>[Cited in Re Hope Min. Co., Case No. 6,681.]</p>

<p>Case No. 12,198.</p> <p>Bill or Lading — Damage to Cargo — Ska Perils —Negligent Stowage.</p> <p>1.A ship, bound from Leith to New York, took on board coal, coal oil. railroad iron, and bales of paper stock. She gave for the paper stock a bill of lading, acknowledging the receipt of the bales in good condition, and excepting perils of the sea. She met with heavy weather on the voyage, and punmed oil, and, on the discharge of her cargo, some of the casks of oil were found to be empty, from leaks caused by the pressure on and breakage of the casks. The paper stock was found to be stained with oil and coal dust; and the consignees filed a libel against the ship to recover the damage: Held, that, the damage being shown to have occurred on board the vessel, from oil and coal forming part of the cargo, the burden lay on the ship to show that it arose from a peril excepted in the bill of lading.</p> <p>[Cited in The Pharos. 9 Fed. 914; The Giglio v. The Britannia, 31 Fed. 432.]</p> <p>2. Although the shippers of the paper stock knew that oil was to be taken by the vessel, they did not assume all risk of damage to it from the off. .</p> <p>3. In view of the peculiar character of the coal oil, and the liability of injury to the paper stock, if the casks should leak, the ship was bound to use especial care in stowing the paper stock and the oil, with reference to each other;</p> <p>[Cited in Mainwaring v. The Carrie Delap, 1 Fed. 879; The T. A. Goddard, 12 Fed. 177; The Maggie M., 30 Fed. 693; Hills v. Mack-ill, 36 Fed. 704; The Glamorganshire, 50 Fed. 840.]</p> <p>4. Such cpre was not taken, and there was, therefore, negligence, for which the vessel was liable.</p> <p>[For a hearing on exceptions to the commissioner's report, see Case No. 12,199.]</p>

This case came up on exceptions to the commissioner’s report of damages. The libel was filed to recover damages alleged to have been sustained by some paper stock shipped on the Sabioncello and consigned to the libel-lants, by reason of bad stowage. The case is reported in [Case No. 12,198]. On the reference the libellants called experts, who testified as to the market value of the stock in its damaged state and what it would have been worth if sound.

[In review of the action of the district court of the United States for the Eastern district of New York. [In the matter of Ernest Sacchl, a bankrupt.]

<p>Case No. 12,201.</p> <p>Bankruptcy — Removal of Assignee — Causes Alleged.</p> <p>A petition was filed against an assignee in bankruptcy to have him removed for the reason that he attacked two mortgages upon the bankrupt’s property without sufficient cause, and'that he delayed a sale of the property for the purpose of obtaining the rents in order to snend them in litigation. .Held, that the as-signee was fully justified in his attack upon the mortgages, and that there was no evidence to show that he ever collected any rents, or how much he has spent in litigation. Petition dismissed, with costs to be paid out of the fund.</p> <p>[For a review of this case in the circuit court, see Case No. 12,200.]</p>

Two actions of ejectment [by George B. ¡jacket against Patrick McDonnell and others, and by M. M. White against the same defendants], to recover two pieces of land in N. W. %, N. AV. J/i, section 3(1, township 39 north, range 13 east of third principal meridian, in Cook countj', Illinois.

<p>Case No. 12,204.</p> <p>Coukts — Act of Congkess — Residence of Defendant— Nominal, on Reai. Party to Suit.</p> <p>Under section 9 of the act of congress of February 10, 1855 [10 Stat. 600], “to divide the state of Ohio into two judicial districts,” which provides “that suits, not of a local nature, shali be brought in the court of the district where the defendant resides; but if there be more than one defendant, and they reside in different districts, the plaintiff may sue in either: ’ Meld, that a defendant is one who is a real, and not merely a nominal party to the suit, and who ha-3 either directly or indirectly an interest adverse to the claim of the plaintiff, and may be in some way affected by the judgment or decree to be entered.</p>

<p>Case No. 12,203.</p> <p>Notes — Action by Beareh — Act of Congkess.</p> <p>1. On a note payable to Thompson or bearer, suit may be brought in the name of the bearer.</p> <p>2. He is not an assignee, and need not aver in the declaration the citizenship of Thompson.</p> <p>3. Such a note is not within the act of congress, in regard to assigned instruments.</p>

<p>Case No. 12,205.</p> <p>Notes — Demand—Protest—Notart’s Clerk.</p> <p>1. The clerk of a notary, strictly, is not au-thorised to present a bill for payment.</p> <p>[Cited in Browning v. Andrews, Case No. 2.-040.]</p> <p>2. In London and Liverpool, under a long established usage, the clerk makes a demand.</p> <p>3. The protest must be made by the notary. If his name be used by the clerk, it is improper and cannot make the protest valid.</p> <p>[Cited in Com. Bank of K. v. Barksdale, 30 Mo. 572.]</p>

<p>[This was an action at law by Lincoln Saddler and others against Charles H. Hudson and others. Heard on motion to dismiss.]</p>

<p>Case No. 12,209.</p> <p>Imprisonment for Debt — Discharge by State Court — Insolvent Laws.</p> <p>1. A debtor, committed under mesne process, issuing out of this court, cannot be lawfully discharged by an order of a state court, made under an insolvent law of the state.</p> <p>2. Whether this court could act under such insolvent law and discharge him. quaere.</p> <p>[See Case No. 12,210.]</p>

This was an action against [Hugh Maxwell] the collector of the port of New York, to recover back an excess of duties. The invoice, dated London, April 16th, 1851, was of one case of silk-worm gut, at 4s. per 1,000, amounting,' with charges, to £83. '2s. 4d. The appraisers added £S1. 15s. lid. to the invoice prices, to make them equal to the market value in London.

<p>Case No. 22,210.</p> <p>Courts — Federal Jurisdiction — Non-Resident —Inhabitant.</p> <p>Though a circuit court of the United States would have jurisdiction over a suit against an ¡ inhabitant of the district, if personal service | were made on him by leaving a copy of the • writ at his last and usual place of abode, and \ under the same process a direct or foreign at- J tnchment was made, yet if no personal service ■ whatever was made, there is no jurisdiction, in : the case of an inhabitant, any more than of a ¡ non-resident.</p> <p>[Cited in Perkins v. Hendryx. 40 Fed. 657: j Crocker Nat. Bank v. Pagensteeher, 44 ' Fed. 700.] I</p>

<p>Case No. 12,211.</p> <p>Bankruptcy— Denial of Allegations of Petitioning Creditors— Evidence — Power of Congress to Pass Bankrupt Law — Conflict with State Laws — Prior Proceedings in State Court. ;</p> <p>j. When all the allegations of the petitioning creditors’ petition are denied by the answer and amended answer, with the exception of the allegation of insolvency, which is admitted by the respondent, as shown by its inability to meet the legal demands of its creditors (depositors'! an order of adjudication of bankruptcy will not be made until the acts of bankruptcy alleged, or one of them, shall be sustained by evidence taken upon the issue made by the petition and amended answer. : . ' ! ¡</p> <p>[Cited in Re Findlay, Case No. 4,789; Re Hathorn, Id. 0,214.]</p> <p>2. The plenary and paramount power of congress io establish uniform laws on the subject of bankruptcies throughout the Ilnited 8tat.es, is given in express terms by the constitution of the United States. It is therefore very clear that when congress has exercised the power thus conferred, their action must necessarily control or limit the exercise of the power of the United States over the same subject ¡ | ; ' j '■ matter: and that whenever any state legislation, or any action of the state courts comes practically into actual conflict with the proper execution of the laws, of congress, constitutionally passed under such grant, of power, state legislation and the jurisdiction and action of the state courts must yield to the paramount authority of the national government. In re Biningor [Case No. 1.420]: also, In re Merchants' Ins. Co. |Id. 9.441]; In re Independent Ins. Co. [Cases Nos. 7,017 and 7,018].</p> <p>[Cited in Re Dole, Case No. 3.9G5.]</p> <p>3. Objection to the exercise of jurisdiction by bankruptcy court founded upon the prior proceedings in the state court against the corporation and its property, and the consequent taking of possession of all the alleged bankrupt’s estate under such proceedings before the petition in this case was filed, and under which proceedings it is insisted that the state court has now the exclusive right to administer the estate of the alleged bankrupt, overruled.</p>

[J. O.J Salford & Co. offered for proof against the estate of [T.] Downing the price of certain lots of leather bought by him of .them at sundry times under parol contracts. Some of the leather had not been taken away from the petitioners’ store at the time of the great fire in Boston, on the night of Nov. 9-10, 1S72.

[Appeal from the district court of the United States for the district of Vermont. [This was a proceeding by James O. Saf-ford & Co. against John J. Burgess, assignee of R. S. Read.]

The case came on to be beard on motion of counsel for plaintiff, to suppress the depositions of Oppenheimer et al., taken on behalf of defendant in Chicago, Ill.

<p>Case No. 12,215.</p> <p>Bankruptcy — 1Traper— Procurin'»; Property tu be Taken on Execution — Creditor — Principal and Aoent — Levt.</p> <p>1. An insolvent debtor, who was a trader, gave to a creditor new notes, payable on demand. signed by himself alone, to take up others of the same amount, secured by the signature and indorsement of other responsible parties, and purchased goods of persons who were ignorant of his insolvency, in order that such goods might be taken on execution on judgments recovered on such notes. Held, that he thereby procured, or at least suffered his property to be seized on execution within the meaning of section 5128 of the Revised Statutes, if seizure there was.</p> <p>2. Where the agent of the creditor had reasonable cause at the time to believe the debtor was insolvent, and knew that the transaction was in fraud of the bankrupt law [of 1867 (14 Stat. 517)], it is the same as if the creditor had himself taken part therein, with the same cause to beli.eve and the same knowledge.</p> <p>[Cited in Re Jacobs, Case No. 7,150.]</p> <p>3. A levy which has been relinquished before the filing of a petition in bankruptcy creates no lien ujam the property as against the as-signee.</p>

<p>Case No. 12,216.</p> <p>Seamen — Who ake — Female Cook — Wages.</p> <p>A female employed as cook on board of a vessel is a mariner, and is entitled to sue in the admiralty for her wages.</p>

<p>This case came up on a demurrer by the plaintiff [Charles Sagory] to each one of two several rejoinders by the defendant [J. Fritz Wissmau, administrator of Frederick Wiss-man] to a replication by the plaintiff to a plea by the defendant to the first count of the plaintiff’s declaration. The suit was brought against Frederick Wissman in his lifetime, and the pleadings were framed prior to his death. The declaration was in debt, for $40,009. The first count set forth, that the defendant was the consul of the free city of Frankfort-on-the-liain, for New York, and it was founded on a bond executed by the defendant to the plaintiff, September 30th, 1851, for $40,000. The plea set forth, that the bond sued on was secured by a mortgage of even date, executed by the defendant to t.he plaintiff, upon certain lands in Buckingham county, in the state of Virginia, conditioned that, if the debt were not paid when due, the plaintiff might enter into and take possession of the lands, and sell them, and retain his debt out of the avails, with costs and expenses, paying the overplus, if any. to the defendant; that, on the 6th of April. 1858, after the debt became due, the plaintiff entered into and took possession, in his own right, of the lands, they exceeding in value the amount of the debt, to sell and dispose of the same, and which he might have sold and disposed of, and, out of the avails, have paid the debt and the costs and expenses, but that, instead of doing so, he had ever since remained, and still remained, in possession thereof, and claimed to be the absolute owner thereof, and as such had ever since received, and still did receive, the rents and profits thereof, whereby the debt was paid and satisfied. The plea concluded with a verification. The replication, after craving oyer of the mortgage mentioned in the plea, set forth, that the defendant, on the 4th of July, 1855, filed a bill in chancery, in the circuit court of the county of Buckingnam, in the state of Virginia, sitting as a court of chancery, a court of general jurisdiction, against the Buckingham Gold Company, a corporation, alleging that the defendant, as owner of the lands subject to the mortgage, had contracted with said company for the sale of the lands to them, and that the company had gone into possession of the lands, but had made default in paying for them, and playing that the lands might be sold under the decree of said court; that afterward, and on the 18th of September, 1856, the defendant filed in ■ the same court a supplemental bill against the plaintiff, setting rorth the said mortgage, and that the whole of its principal and a large amount of interest on it were due, and praying that the plaintiff might be made a party to said suit; that the plaintiff filed his answer to said original and supplemental bills, and afterward and on the 3d of June, 1857, after default in the payment of the mortgage, filed a bill in chancery in the nature of a cross-bill, in said court, against the defendant and others, for the purpose of selling ihe mortgaged premises, unless the defendant should redeem them, and of applying the proceeds toward the debt due to him by the defendant; that the defendant appeared and answered the bill, and admitted its. allegations: that, on the 16th of September, 1837. the original and supplemental bills of the defendant, and the cross-bill of the plaintiff, came on to be heai-d together by the court, and it was decreed, that, unless the defendant should pay to the plaintiff, within sixty days from that date, $24,800, with interest at the rate of six per cent, per annum on $20,000, part thereof, from September 30th, 1S36. till paid, the defendant should be foreclosed from redeeming, and the premises should be sold at auction, and the plaintiff might become the purchaser; that, on the 24th of December. 1S57, the premises were duly sold at auction, under the mortgage and the decree, for $9,100, to the plaintiff, leaving a deficiency due to the plaintiff, on the mortgage, of $18,-'399.75, with interest from December 24th,-1857; that the premises were duly conveyed . to the plaintiff under the decree; and that the plaintiff entered into possession of the premises by virtue of said sale, and not otherwise. The replication concluded with •a verification.</p> <p>The first rejoinder set forth, that, before, and at the time of, the commencement of the suits by and against the defendant, mentioned in the replication, and before and at the time of the commencement of the suit against him in which the decree was rendered, and at the time the decree was rendered, the court in Virginia was a state court, and the defendant was consul, in New York, of the free city of Frankfort-on-the-Main, duly accredited, and the state court had no jurisdiction of the cause, but such jurisdiction belonged exclusively to courts established under the constitution and laws of the United States. This first rejoinder concluded with a verification. To this first rejoinder the plaintiff demurred, setting forth, in his demurrer, various causes of demurrer. Only one of them was presented for consideration on the argument, namely, whether, as the defendant was a foreign consul, the state court of Virginia had jurisdiction of the suits mentioned in the rejoinder. The ground taken by the plaintiff was. that, as the defendant brought a suit in the state court, and made the plaintiff a party to it, as the holder of the mortgage on the premises in question, and as the plaintiff then filed a bill in the same court, in the nature of a cross-bill, against the defendant and others, for the purpose of selling the premises, and of applying the proceeds towards the satisfaction of the debt, and as the suits brought by both parties were heard together, and the decree that was made was made in both of the suits, the state court had jurisdiction to make the decree; that the privilege of a consul to be .exempt from the exercise of jurisdiction over him by a state court, extended only to an adverse suit against him, and did not extend to a suit instituted by himself; that the suit brought • by the plaintiff was not an original suit; and that the jurisdiction acquired by the state court over the parties, by the institution of the suit brought bjr the defendant, covered the cross litigation instituted by the plaintiff, although, if the bill filed by the plaintiff had been an original bill, the court would have had no jurisdiction of it, as against the defendant</p>

The libel in this case was filed by John P. i Murray, and fourteen other seamen, against | the British ship Sailor Prince, and the freight I money earned by her on a voyage from lia- ¡ nilla to New York, to recover their wages. '• The amount claimed to be due for the wages was about $5.000, and was for the service of ■ the seamen on board of the vessel, on the voy- , age on which the freight money was earned. ¡ On the filing of the libel a monition was is- i sued, March 1st,…

<p>Case No. 12,219.</p> <p>Marshalling of Assets — Seamen’s Wages — Mortgagee — Jurisdiction—Vessel and Freight.</p> <p>1. Seamen filed a libel for wages against a ship and her freight, and had a decree against them. The vessel was sold and her proceeds brought into the registry. The freight money was also attached, but. was not brought into the registry, and the libellants applied to have their decree paid out of the proceeds of the ship. Their application was contested by one Patrick, who had filed a libel against the proceeds of the vessel, to which he claimed to -be entitled, because he had purchased at sheriff’s sale the interest of a foreign corporation which had held mortgages on the vessel which, as Pat rick claimed, had become forfeited (thus making the corporation’s title to the vessel absolute) at the time of the commencement of the suit, and the issuing of the attachment in pursuance of which the sheriff’s sale of the vessel had taken place. Patrick claimed that the decree for seamen’s wages should be satisfied out of the freight instead of out of the proceeds of the vessel. An answer to Patrick’s libel had been interposed by other claimants, who alleged that all the interest of the foreign corporation in the mortgages on the vessel had passed to them, before the commencement of the suit in which the attachment was issued. Held, that the principle, that, where one creditor has two funds to resort to. while another creditor has a security on only one of such funds, the court will compel the former to resort to the other fund, if that is necessary for the satisfaction of both claims, is sometimes applied in the admiralty, but that it was not. applicable to this case.</p> <p>[Cited in The Edith, Case No. 4,282; The Orient, Id. 10,569; The Olivia A. Carrigan, 7 Fed. 511; The Hudson, 15 Fed. 170.]</p> <p>2. The admiralty has no jurisdiction to enforce the claim of a mortgagee of a vessel.</p> <p>rCited in Rodd v. Heartt. 21 Wall. (88 U. S.) 608: The Grand Republic, 10 Fed. 399.]</p> <p>3. Patrick stood before the court only as having the rights -of mortgagee, and his libel, being a libel by a mortgagee against the proceeds of the vessel, could not be maintained.</p> <p>4. That libel might, however, be treated as a petition.</p> <p>5. The court had no authority to adjudicate upon Patrick’s title to the mortgages, which Was contested by the other claimants.</p> <p>6. Even in disposing of claims against proceeds in the registry, this court refuses to consider a claim that is contested.</p> <p>7. Patrick's claim could not be set up to defeat or delay the claim of the seamen, and of the master and other persons interested, to be paid out of the proceeds.</p> <p>8. The allegation, that, prior to the attachment of the vessel, the mortgagee had taken possession of her, could not affect the question, because such taking possession was for the benefit of the real owner of the mortgages, and the question who was such real owner was the question in dispute between Patrick and the other claimants.</p> <p>9. The decree in favor of the seamen and the master must be satisfied out of the general fund in court, leaving the question whether that pay-meat should be charged against the proceeds of the vessel or the freight, to be determined on the final hearing on Patrick’s libel.</p> <p>[Cited in The Amos D. Carver, .35 Fed. 669.]</p>

[Appeal from the district court of the United States for the district of Michigan.] This was a ease of salvage in which the libellant alleged that Evans, being the owner of the steamtug Fields, a vessel duly enrolled and licensed at Detroit, and used in navigating the lakes and rivers connected therewith, in descending the St. Clair rapids, discovered the schooner Sailor’s Bride agreund near the Canadian shore, and being informed that she was desirous of being hauled off.…

<p>Case No. 12,221.</p> <p>Prize — Attempt to Violate Blockade.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

<p>In bankruptcy.</p>

<p>Case No. 12,223.</p> <p>Collision — In the Hudson Riveh — Whistles —Lookout.</p> <p>1.Where a steamboat coming down the Hudson river from Albany, on rounding Magazine Point, saw the lights of a towboat below, which was going up on the east side of the river, and the pilot of the steamboat blew two whistles, whereupon the towboat answered with two whistles and starboarded her wheel, expecting that the steamboat would pass to the eastward of her. but the latter struck a barge on the port, side of the towboat, the collision occurring about the middle of the river, and the steamboat having no lookout forward outside of the pilot house: .Held, that the towboat was right, on hearing the two whistles of the steamboat, in slarboarding her helm, and was not in fault.</p> <p>2. The pilot of the steamboat misjudged the uosition of the towboat, supposing she was on the west shore, instead of on the east shore, and such mistake was the cause of the collision.</p> <p>3. The steamboat was also in fault in not having a proper lookout</p> <p>[On appeal to the circuit court, the decree of this court was modified. Case No. 12,224. An appeal was then taken to the supreme court, where the decree of the circuit court was affirmed. 154 U. S. 586, 14 Sup. Ct 1170.]</p>

<p>[Appeal 'from the district court of the United States for the Southern district of New York.</p> <p>. [This was a libel for damages resulting from a collision. There was a decree in the district court condemning the St. John, with a reference to a commissioner to ascertain the amount. Case No. 12,223. From that decree the present appeal was taken.]</p>

<p>Case No. 12,225.</p> <p>Prize — Participation—Signad Distance.</p>

[This was a bill in equity by Thomas St. John against the Erie Railway Company to obtain a judgment as to the rights of the stockholders, and to- protect them against the alleged wrongful acts of the company.]

The evidence tended to prove this state of facts: After the close of the late War of the Rebellion, the postal service between the Northern and Southern states was considered unreliable, and the defendant, the Southern Express Company, having an office in Mobile, was largely employed in the conveyance of letters.

<p>Case No. 12,229.</p> <p>Maritime Liens — Order of Distribution — Mortgagee and Material-men — Foreign and Domestic — Advances.</p> <p>1. Strictly maritime liens have priority over mortgages, without reference to the period of time when they accrued. Material-men, having liens by local laws, have priority over mortgagees in the distribution of the surplus. In this case, the court ordered the different classes of liens paid as follows: First, maritime liens; second, liens given by state laws; third, mortgage liens; fourth, the assignee in bankruptcy of the owner.</p> <p>[Cited in Moir v. The Dubuque, Case No. 9,-696; The Alice Getty, Id. 193; The Theodore Perry, Id. 13,879; The Hiawatha, Id. 6.453; The Illinois, Id. 7,005; The E. A. Barnard. 2 Fed. 721; The General Bum-side. 3 Fed. 230; The Canada, 7 Fed. 735; The Guiding Star, 9 Fed. 524; The Daisy Day. 40 Fed. 541.]</p> <p>[Cited in Hammond v. Danielson, 126 Mass. 296.]</p> <p>2. No unforeseen and unexpected emergency need be shown to warrant a lien in favor of a material-man. Where the master obtains supplies. they are generally supposed to be sold on the credit of the vessel, and in such cases the vessel is liable.</p> <p>3. A part owner and general agent and superintendent of a line of boats, of which the respondent was one, has no lien for material, but must be regarded aB having given credit to the company.</p> <p>[Cited in The Two Marys. 10 Fed. 925; The Rapid Transit. 11 Fed. 327, 331; The Murphy Tugs. 28 Fed. 432.]</p> <p>4. Advances made by a mortgagee to subsisting lion holders at the time of taking possession under the mortgage should be paid in the order in which the liens themselves would have been paid. '</p> <p>NOTE. Under the recent decision in the case of The Lotawana, 21 How. [62 U. S.] 558, the principal question involved here becomes of considerable importance. See The Grace Greenwood [Case No. 5,652]: 2 Pars. Shipp. 149; Reeder v. George’s Creek [Case No. 11,654]; In re Scott ild. 12,517]; Francis v. The Harrison [Id. 5,038].</p>

The libel of Ashley & Mitchell alleged that the libellants were forwarders and warehouse men, in Detroit, whose business it was to receive, forward and ship goods to various ports by lake vessels; that they delivered certain goods on board the St. Joseph, consigned to different ports upon the lakes, the master receiving them under an agreement to transport them to the place of delivery, collect libellant’s charges for storage and advances, and pay them over to libel-lants;…

<p>Case No. 12,231.</p> <p>Slum no — Delivery op Cargo — Private Wharf — Notice to Consignee — Negligence op Carrier.</p> <p>1. Certain cases of goods were brought to New York on a steamship under an ordinary bill of lading. The owners of the steamship were the omioants of the wharf at which she discharged her cargo, and which they had inclosed. It was their mode of doing business that goods which were to be sent to the custom house under a general order, because their consignees had not obtained custom house permits for their landing, were deposited in a certain, place of deposit on the wharf. One of the eases of the goods, after being marked for general order, was seen by a clerk of the steamship company standing in another part of the wharf with the goods of a passenger. They stood there for nearly a day, hut the clerk gave no order and did nothing with reference to them. The consignee filed a libel against the steamship to recover for non-delivery of one of the cases. It did not appear that the missing case had ever been put in the place of deposit for general order goods. Held, that under the mode of delivery adopted by the ship, it was her duty to deposit the case in the part of the wharf designated for general order goods, and there to watch and preserve it for a reasonable time to enable the proper person to remove it; and the liability of the ship as carrier continued until the expiration of such reasonable time.</p> <p>TOited in TJnnevehr v. The Hindoo, 1 Fed. 630.1</p> <p>2. The delivery of the case in question upon the wharf, was not such a delivery of it upon a public wharf with notice to the consignee, as would discharge the ship from liability.</p> <p>3. There was negligence in the clerk of the steamship in failing to remove the case marked “general order” to the proper deposit.</p> <p>4. The ship was liable for the loss of the ease.</p> <p>[NOTE. On appeal to the supreme court the decree of the circuit court was affirmed, with costs, except so far as it condemned those portions of the cargo claimed by Penniman and McGrecore, which the court decided to hold over until the next term. 8 Oranch (12 U. S.) 434. At, the next term the judgment of the circuit court as to these claims was affirmed. 9 Oranch (13 ü. S.) 120. Pending these two hearings, the cause having been remanded for further and final proceedings, an application was made to have the shares of the captain and some of the crew, when ascertained, paid into the hands of their particular agents, and not into the hands of the supposed general agent of the ship. The application was referred to commissioners.</p> <p>Case No. 12,233.]</p>

<p>Case No. 12,232.</p> <p>Prize — Property in Enemt Country — Right to Bring Awat — Condemnation — Ship’s Papers — Claim—Naturalization.</p> <p>1. A naturalized citizen cannot lawfully bring away his property from an enemy country after a knowledge of the war, without the license of the government.</p> <p>See Curtis, Adm. Dig. pp. 203-209. where the cases may all be found. [See Case No. 12.258],</p> <p>[See The Mary, Case No. 9,184.]</p> <p>2. An obstinate suppression of the ship’s papers, &e. coupled with a voyage from an enemy country, is sufficient cause of condemnation.</p> <p>3. It is irregular for a mere nominal agent to interpose claims for his principal, where they are within the jurisdiction.</p> <p>[Cited in Spear v. Place, 11 How. (52 U. S.) 527.]</p> <p>4. If a party put himself in itinere to return to his native country, he is already deemed to have assumed the native character.</p>

The decree of this court, condemning the ship St. Lawrence and cargo as prize to the captors [Case No. 12,232], having, with the exception of two suspended claims, (These claims were also rejected at the next term of the supreme court. 9 Oranch [13 U. S.] 120) been affirmed by the supreme court [8 Cranch (12 U. S.) 434], and the cause having been remanded for further and final proceedings, an application by way of petition was made in behalf of the captain and some of the…

<p>Case No. 12,234.</p> <p>Maritime Liens — Materialman—Master—Power to Charge — District for Enrolling.</p> <p>1. By the maritime law, every person who furnishes materials or labor for the building and repair of a ship has a,lien or privilege on her for his pay unless the privilege is expressly waived by the terms of the contract.</p> <p>[Cited in The Ellon Holgatc. 30 Fed. 127.]</p> <p>2. The legal right of the master to charge the vessel for repairs.</p> <p>3. When a ship's husband had his legal domicile at Northport. in Maine, but passed two- ¡ thirds of his time, and did his business at New j York, the latter was held to be the proper district for enrolling and licensing the vessel under the act of Feb. 18. 1793 [1 Stat. 305].</p> <p>[Cited in The Rapid Transit, 11 Fed. 329; The Jennie B. Gilkey, 19 Fed. 129; .The Ellen Holgate, 30 Fed. 120.]</p>

In equity. The city of St. Louis and the-receiver of the National Bank of the State of Missouri respectively claim to be entitled to the sum of $29,564.29 currency, and $8.-570.60 gold, on deposit June 20th, 1877, to the credit of the above named bank, in the Bank of the Republic, in New York. Briefly, the material facts, as shown by the proofs, are these: The National Bank of the State of Missouri suspended payment and closed its doors on June 19th. 1S77, and the defendant.

<p>Case No. 12,236.</p> <p>Railroad Companies — Lease — Rent — Guaranty —Equity—Jurisdiction—Remedt at Law.</p> <p>1. Certain of the defendant railway corporations had made an agreement, with the complainant corporation by which they had guaranteed, that the I. & St. L. R. R. Co., lessee of the complainant’s railway lines, should pay to the complainant a certain minimum rental. The guarantor companies were the holders of the bonds of the I. & St. L. R. R.. lessee, to a large extent, and the latter company having failed for nearly two years to pay the rental due complainant: Held, that the court would require the lessee to pay the minimum rental due complainant before the payment of any portion of the interest on such of its bonds as belonged to the guarantor corporations, or any other sums which might lie due them, and that an injunction to that effect would be issued, and the guarantor corporations further enjoined -from- disposing of such bonds.</p> <p>2. Held, further, that the fact that the complainant had a right oí action at law against the guarantors for breach of warranty, did not •deprive the court of-equity of its jurisdiction of the case.</p> <p>See. also, St. Louis. A. & T. H. R. Co. v. Indianapolis & St. L. R. Co. [Case No. 12.237].</p> <p>[NOTE. A final decree was entered in this case for $664.874.70, with costs, and an injunction against several of the defendants, from which both parties appealed to the supreme court. That court reversed the decree as to all defendants except the Indianapolis, St. L., etc.. Co. St. Louis. A. A T. H. R. Co. v. Pennsylvania R. Co., 118 U. S. 290, G Sup. Ct. 1094.]</p>

<p>Case No. 12,237.</p> <p>Equity — Inadequate Remedy at Law — Corporations — Citizenship of Shareholders — Consolidation — Courts—Federal Jurisdiction.</p> <p>1. Where a contract and lease relating to the operation of a railroad had been performed for a time and then the parties failed to meet their engagements; on a bill filed to enforce the contract and asking for various restraining orders against some of the defendants, the application being made because of the contract and the various relations which existed between the parties: Held, that these facts constitute a ease where there may not be a full remedy at law and which is properly brought in a court of equity.</p> <p>2. Where a corporation sues in a federal court, the court in order to assume jurisdiction, will conclusively regard all the shareholders as citizens of the state which created the corporation.</p> <p>[See Bank of Cumberland v. Willis, Case No. 885.)</p> <p>3. The fact that two railroad corporations created by different states, have been consolidated under the laws of those states, and the railroad operated, by virtue of that consolidation, as one entire line of road, will not.prevent one of these corporations from bringing suit in the federal court as a corporation of that state where it was created, against the corporation with which it is consolidated which was created by the other state.</p> <p>[Cited in C. & W. I. R. Co. v. L. S. & M. S., Ry. Co., 5 Fed. 22; Uphoff v. Chicago. St. L. & N. O. R. Co., Id. 549; Burger v. Grand Rapids & I. R. Co., 22 Fed. 562; Colgate v. Louisville. N. A. & C. Ry. Co., Id. 569; Fitzgerald v. Missouri Pac. Ry. Co., 45 Fed. 815. Quoted in Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 U. S. 377, 10 Sup. Ct. 1,009.)</p> <p>See. also, St. Louis. A. & T. H. R. Oo. v. Indianapolis & St. L. R. Oo. [Case No. 12,236.]</p> <p>JNOTE. A final decree was entered for $664,-874.70, with costs, and an injunction against several of the defendants, from which both parties appealed to the supreme court. That court reversed the decree as to all defendants except the Indianapolis and St. Louis Railroad Company, 118 U. S. 290, 6 Sup. Ct. 1094. For hearing on the question of the jurisdiction of the circuit court, see Case No. 12,236.]</p>

In 1875 Meier & Co. shipped a quantity of cotton from St. Louis to Liverpool by the-Erie and Pacific Dispatch Co. and the White Star Line, on a through bill of lading. The cotton was carried on defendant’s road to Indianapolis, thence by the Panhandle route-to Columbus, Ohio, and thence by the Erie Railroad to New York, where it was placed in the docks of the White Star Line, for shipment to Liverpool. While so placed the-cotton caught fire and was burnt.

The national banking act permits the states to authorize all the shares held in national banks by any person to be included in the valuation of his personal property, and to be assessed at the place where the national bank is located, subject to the restriction (the only one here involved) that such shares shall not be taxed “at a greater rate than is assessed upon other moneyed capital in the hands of individuals.” Rev. St. § 5219.

<p>[This was an action of ejectment brought by the St. Louis Smelting & Refining Company against Thomas Kemp and others.]</p>

<p>Case No. 12,239b.</p> <p>Mines and Minino —Issuance or Patents foe Placee Claims — Foreion Corporations— Power to But and Sell Land.</p> <p>[1. Under the acts of congress of 1866, 1870, and 1872. a purchaser of several adjacent placer mining claims, in order to procure a valid patent. must make sonarate applications for each location, and take separately all the statutory steps in respect to each one of them. Therefore a patent covering several claims, and issued on one application, is no evidence of title.]</p> <p>[2. While a foreign corporation organized for the purpose of reducing ores cannot engage in the business of buying and selling real estate, yet, having purchased a considerable tract for the purpose of erecting its works thereon, it may sell portions thereof which it finds unnecessary for its purposes, and the court will not look closely into the question whether the original purchase was of a larger tract than necessary.]</p>

[This was a bill in equity by the St. Louis Stamping Company against E. C. Quinby and others for the infringement of reissued letters patent No. 7,779, granted to F. G. & W. F. Niedringhaus July 3, 1877, the original letters patent, No. 177,953, having been granted May 30, 1876.]

In equity. The defendants [E. G. Quinby and others] were stockholders of a corporation. The infringement consisted in making and selling an article of manufacture. St. Louis Stamping Co. v. Quinby [Case No. 12,-240]. It appeared that defendants had made no profit by such manufacture. The complainant contended that it was entitled to recover, as damages, the profits it would have made on the articles sold by the defendants, but offered no other proof as to damages.

<p>This was a bill in equity, filed by St. Luke’s Hospital, a New York corporation. The defendants [Anthony Barclay and Robert Bunch] were aliens. The bill prayed for an injunction to restrain them from prosecuting a suit instituted by them in this court, against the New York Life Insurance and Trust Company, for the recovery of $10,000, held on deposit by that company in the names of the defendants. The bill set forth, thafin October, 1845, the rector, church wardens, and vestrymen of the Anglo-American free church of St. George the Martyr, became incorporated under the laws of New York, as a religious corporation; that in May, 184S. the corporation of the city of New York granted to the said religious corporation, a lot of land, situate on the 5th avenue, between 54th and 55th streets, upon condition that said church should erect thereon a hospital and chapel for the relief of British emigrants, on or before tbe 1st of May, 1853, in default whereof tbe premises were to revert to .tbe city of New York; that the church did not erect such hospital and chapel within the time limited, and possessed no means for so doing, and had no prospect of obtaining them; that in April, 1850, the plaintiffs became incorporated, for the purpose of establishing, founding, carrying on and managing a hospital in New York; that it is part of the design of the plaintiffs that their hospital be connected with the Protestant Episcopal Church of the United States, as one of the charitable institutions of that church; that its benefits are mainly intended for the poor of that church; that a chapel is also to be attached to the hospital, in which services are to be conducted according to the liturgy and discipline of that church, the doctrine and discipliné of which are sub-' stantially the same with those of the Church of England; that the rector, church wardens, and vestrymen of St. George the martyr, being unable to fulfil the conditions of such grant to them, agreed that the land so granted to them should be transferred to the plaintiffs, and be used for the erection of buildings for their corporate purposes, and of a hospital with a church or chapel of the Protestant Episcopal Church attached thereto, and that, in consideration of such transfer, a wing ward, or department of said hospital should be appropriated to the special benefit and relief of British emigrants, as a substitute for the hospital originally contemplated by said Church of St. George the Martyr; that, after such arrangement was made, but before it was fully consummated, Bunch, one of the defendants, proceeded to England, to collect funds from members of the Church of England, for the endowment and support of said proposed hospital and chapel, to be included in and form part of the plaintiff’s buildings, and, for that purpose, circulated a paper seeking donations, and setting forth the object to be as above stated, and that a fusion of St. Luke’s Hospital and the Church of St. George the Martyr had been made to that end; that about 811,000 was received by said Bunch, in contributions to the object, under such appeal, and was given in expectation that most of such contributions would be applied to the aid of the plaintiff’s undertaking; that in October, 1852, the fusion was completed, and the officers of the Church of St. George the Martyr conveyed to the plaintiffs the premises granted to them by the city of New York, and the plaintiffs, on the same day, executed to the Church of St. George the Martyr, an agreement under seal, in fulfilment of the mutual arrangement entered into between the parties; that, thereupon, the plaintiffs entered into possession of the land, and had commenced the erection thereon of suitable buildings for a hospital and a church or chapel thereto annexed, and were prosecuting the same to completion with all diligence, and were possessed of means sufficient therefor; that subsequently the defendant Bunch paid to the plaintiffs $823.50, for the benefit of St. George’s ward, alleging that to be the whole amount collected for that object; that, about the same time, he deposited in the New York Life Insurance and Trust Company the balance of .the money so by him collected, being about $10,000, in his own name and that of the defendant Barclay, and that they had since claimed the exclusive right to hold and disburse said sum; that the principal part of said sum was intended, by the donors, for the British Emigrant Hospital in New York, now known as the ward of St. George the Martyr, in St. Luke’s Hospital; and that said sum ought to be applied to the endowment and use of said hospital. The bill prayed that the defendants be decreed to apply and dispose, of said fund according to the design and intent of the donors, and that such charitable design be carried into effect under the decree of this court; that the defendants account for said fund, and be enjoined from collecting or receiving any part thereof; that the said suit at law be stayed; and that the New York Life Insurance and Trust Company be directed to pay said fund into court. Barclay opposed the motion, on his answer.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a lihel in rem. filed on the 23d of November, 1849, in the district court, by Albert A. Warner against the ship St. Mary, an American vessel.

The collision [between the propellors We-nona and St. Paul] took place at 6 o’clock on the morning of the 26th of August, 1876, about a quarter of a mile below Grassy Island light, in the Detroit river. Both vessels were bound up, the Wenona somewhat ahead, and proceeding at their usual rate of speed; the Wenona at eight and a half, and the St. Paul at ten miles an hour. The collision occurred in an attempt of the St. Paul to pass the ■Wenona.

In Admiralty. The above entitled suits have been consolidated for trial and argument. These are actions growing out of a collision which occurred Oet. 16, 1872, about 4 p. m., on the Mississippi river, near the town of Louisiana, in the state of Missouri, between the steamboats Northwestern and Lake Superior. Both vessels were descending the river, the Northwestern with two loaded barges in tow, one on each side, and the Superior “flying light,” or nearly so, without barges.

In equity. Heard on pleadings, proofs and arguments of counsel for final decree.

<p>Case No. 12,247.</p> <p>Treaties — Privateer’s Commission — Neutrality Laws — Alterations.</p> <p>1. The courts of the United States cannot question the validity of the commission of a French privateer, whose prize is brought into our ports, by virtue of the 17th article of our treaty with France [8 Stat. 186].</p> <p>2. What alterations in the equipment of such privateer will amount to a breach of neutrality.</p>

The libel in this case was brought by the owner of the bark Salem, to recover the balance due under a charter-party.

This was an application for a writ of cer-tiorari, to remove to this court for trial the record of a cause pending in the supreme judicial court of the commonwealth of Massachusetts.

| [These were actions by Matthias Salentine I against Henry Fink, marshal, and Thomas O’Neil against the same defendant, asking that Fink, - as marshal, he restrained from selling plaintiffs’ homesteads.]

The complainant, Mrs. Salisbury, made to the defendant, Sands, in 1858, a mortgage upon certain real property in Omaha, in the then territory of Nebraska. At that time Mrs. S-. resided in Omaha, but subsequently removed to, and now resides in, St. Louis, in the state of Missouri; and this bill — filed in this court in 1870, as stated in Santis v. Smith [Case No. 12,305] — is to redeem the property from the mortgage.

[In review of the action of the district court' of the United States for the Northern district of Illinois.] In bankruptcy.

In bankruptcy. Motion to commit bank-i-upts [Samuel Salkey and Joseph Gerson] for contempt in not accounting for assets.

In bankruptcy. Application by bankrupts [Samuel Salkey and Joseph Gerson] for a writ of habeas corpus, to discharge them from an order of commitment for contempt made by the district court. For opinion of the district court on the commitment, see [Case No. 12,253], [For prior proceedings in this litigation, see Case No. 12,252.]

<p>Case No. 12,256.</p> <p>Bankruptcy — Judgment in* Favor of Bankrupt —Schedule of Property.</p> <p>1. "Where judgment should be set forth' in schedule of bankrupt’s property.</p> <p>2. A judgment in favor of a bankrupt should be set forth in Schedule B, No. 2, under letter b. A bankrupt in preparing Schedule B, No. 2, is not restricted to the letters therein printed. He may exhaust the alphabet if he chooses, and then use other marks, if necessary, to describe his personal property accurately or lucidly.</p>

<p>[Appeal from the district court of the United States for the district of Massachusetts.]</p> <p>In admiralty.</p>

<p>[Appeal from the district court of the United States for the district of Massachuseno..-</p> <p>In admiralty,</p>

<p>Case No. 12,259.</p> <p>Prize — Enemy Property.</p> <p>Yessel and cargo condemned as enemy property, the claimants being, at the time of the capture, citizens and residents of one of the seceded states of the Union.</p> <p>An appeal was taken to the supreme couft from this decree, as to the cargo but not as to the vessel. That court, at the December term, 1865. affirmed the decree of the district court [as rendered in Case No. 12,260]. See [Fry v. U. S.] 3 Wall. [70 U. S. 451.] [See, also, Case No. 12,261.]</p>

<p>Case No. 12,260.</p> <p>Prize — Averments — Property op Consignees— Belligerent Captors — Neutral Creditors— Powers ok United States — Test Oath.</p> <p>1. Suppression, in the test oath to the claim, of the fact that the claimants were resident traders in the enemy’s country, it averring that they were citizens of the United States.</p> <p>2. The case of The Hiawatha, 2 Black [67 U. S.] 635. determines that the United States .givernment is, in this war, clothed with all the rights conferred by international law upon separate nationalities in a state of public hostilities with each other; and that a vessel and the cargo on board of her, being the property of residents in an insurrectionary state of the United States, are enemy’s property, and subject, in the federal court, to condemnation, on capture at sea, as lawful prize.</p> <p>3. A libel in a prize case need contain no further averment than that the property seized is prize of war.</p> <p>4. In contemplation of war, the cargo in this case became the property of the consignees from the time of its being laden on board of the vessel and from tne execution of the bills of lading therefor.</p> <p>5. It is a settled principle of the prize procedure that belligerent captors are discharged of liens or equities of neutral creditors resting upon the effects of an enemy seized at sea. The acts of congress of July 13, 1861, August 6, 1861, and March 3, 1863 (12 Stat. 255. 319. 762), relate to confiscations for intraterritorial offences, and not to capture at sea.</p> <p>NOTE. The counsel for the claimants, in the written brief submitted by them, -state: “If any doubt is entertained by the court as to the truth and good faith of the claimants’ claim, further proof will set it at rest.” On the 10th of August thereafter the claimants filed their appeal from the judgment to the supreme court without previous application to this court for leave to give further proof in the suit.</p> <p>An appeal was taken to the supreme court from this decree as to the cargo, but not as to the vessel, and the decree was affirmed March 12, 1S66. [3 Wall- (70 U. S.) 451. For hearing on pleadings and proof, see Case No. 12,259. See, also, Case No. 12,201.]</p>

<p>Case No. 12,261.</p> <p>Pktze Property — Compensation op Appraiser— Taxation as Costs — Charges for Bonding —Amount Allowed by Statute.</p> <p>1.An appraiser appointed by the court, on the application of the claimant, to appraise the prize property, .with a view to its delivery on bail to the claimant, not having been paid his compensation, applied to the court to tax his costs for the service, and direct them -to be paid out of the proceeds of the property, but the application was denied.</p> <p>2. The charges of appraising and bonding such property must be borne by the party who applies to have it bonded.</p> <p>3. The appraiser having charged 1 per cent, on the value of the property appraised, and the prize commissioners having reported that one-half of that amount would be a proper com-Densation. held. that the appraiser had no right to demand a quantum meruit for his services, or any further reward than the per diem allowance provided by statute or the standing rules of the court for that description of services.</p>

This action is heard now, by consent of counsel, on the facts as set forth in the declaration, and on the general demurrer filed by the ■ district attorney.

[This was an action by the Salmon Falls Manufacturing Company against William W. Goddard to recover damages for his refusal to give notes pursuant to an alleged contract for the sale of goods, and also to recover the price of the goods.]

<p>Case No. 12,265.</p> <p>Shipping — Carriers of Goods — Delivery—Fast Day — Notice—Fire—Damage of- Seas.</p> <p>1. To constitute a delivery by the master, of goods brought in a vessel from a port in another state to the port of Boston, under the ordinary bill of lading, mere unlivery of the goods and landing them on the wharf is not sufficient; there must also be reasonable notice to the consignee, allowing him time to make the usual and necessary preparations to receive the goods. And it is no delivery to unlade the goods at an unusual time. Thus, where, by the usage of a port, consignees are not in the habit of receiving goods on the day of the annual fast, a notice by the master to the consignee that he shall unload the goods on that day, will not bind the consignee to receive them; and where goods were so unladen, and not accepted or received by the consignee, and were, on the same day, destroyed by fire on the wharf: Sdd, that the loss must fall upon the carrier.</p> <p>[Cited in The E. H. Fittler, Case No. 4.311; The Edwin. Id. 4,300: The Boston, Id. 1,-671; One Thousand Two Hundred and Sixty-five Vitrified Pipes. Id. 10,536; The Williams. Id. 17.710. Cited in dissenting opinion in Constable v. National Steamship Co., 154 U. S. 02, 14 Sup. Ct 107S.J</p> <p>2. Fire, occurring on the wharf, after goods are landed, is not within the exception of dangers of the seas, 'in the ordinary bill of lading.</p> <p>3. Nor is such a fire within the act of congress of March 3d, 1851 [9 Stat. 635), relieving ship owners from liability for damage by fire to goods on board of vessels, in certain cases.</p> <p>[Cited in The Edwin, Case No. 4,300. Cited in dissenting opinion in Constable v. National Steamship Co., 154 U. S. 80, 14 Sup. Ct. 1073.)</p> <p>[NOTE. The decree in this case was. in effect. reversed by the supreme court in Richardson v. Goddard. 23 How. (64 U. S.) 28. After the rendering of this last decision the circuit court granted a new hearing in this case, at which it reversed the decree, as rendered above, and entered a decree affirming the decree of the district court, the last opinion being delivered by Circuit Justice Clifford. Case No. 12,266.]</p>

<p>Case No. 12,266.</p> <p>Shipping — Cakrieks op Goods — Delivkrt — Notice — Discharge—Notice after Discharge —Interrupted Work — New Notice.</p> <p>1.When a carrier by water, acting pursuant to a full and reasonable notice to the consignee of the arrival of the vessel and of his readiness to deliver the cargo, unlades the same on a. suitable wharf at a suitable time, and makes it ready for delivery, as by separating each consignment from the others, and placing them where they are conveniently accessible for the purpose of removal, such acts, if performed in good faith, have the effect to discharge the carrier from further liability as carrier, and entitle him to freight.</p> <p>[Cited in Richmond v. Union Steamboat Co., 87 N. Y. 247. Cited in brief in Hamburg-Ameriean Packet Co. v. Gattman, 127 Ill. 606, 20 N. E. 662.</p> <p>2. Notice of the arrival of the vessel, and readiness to deliver, need not be delayed till the cargo is unladed and all the acts performed which are requisite to discharge the carrier; it is more usual to give the notice when discharging is commenced; and when so given, it is not in general necessary that it should be repeated, if unloading is prosecuted without unnecessary or unusual delay.</p> <p>3. When no notice is given to the consignee until the cargo is discharged, it seems the responsibility of the carrier continues until a reasonable tíme in which to remove the goods, has elapsed; but such is certainly not the rule where notice is given prior to the unlading.</p> <p>[Cited in The Boskenna Bay, 22 Fed. 665.]</p> <p>[Cited in Faulkner v. Hart, 82 N. Y. 417; MeAndrew v. Whitlock, 52 N. Y. 48: Mc-Neal v. Braun, 53 N. J. Law, 624, 23 Atl. 687.]</p> <p>4. If the unlading be temporarily interrupted by the crowded state of the wharf, on account of other consignees not removing their goods, no new notice need be given on resumption of the work.</p> <p>5. Where prior notice is given, it is the duty of the consignee and carrier to co-operate, and the one who fails so to do must abide the consequences.</p>

<p>[These were libels founded upon bills of lading by the Salmon Falls Manufacturing Company, Goddard & Pritchard, and John H. ■Pearson against the bark Tangier.]</p>

In bankruptcy. By LAWSON BLACK, Register: In this case the following question of law on the jurisdiction of this court, arose before me, pertinent to the proceedings in the above case, viz; Has the court the power to order the sale of the estate of a bankrupt encumbered by lien, and the money arising from the sale brought in court to be distributed among the creditors holding the securities?

<p>[This was an action by the Salt Company ¡ of Onondaga against Alfred Wilkinson, col- i lector of internal revenue, to recover moneys paid to defendant under protest.) j</p>

[This was an action by Saltonstall against Stockton & Stokes to recover damages for personal injury sustained by plaintiff’s wife.] cited 2 Camp. 80; Story, Bailm. § 601; 11 Pick. 106; 12 Pick. 477; 1 Camp. 179; 2 E. C. L. 482; 5 Car. & P. 409, 410; 23 E. C. L. 331; 2 Esp. 533 ; 3 Eng. C. L. 233. cited 1 Starkie, 493; 2 Taunt. 314; 11 East, 61; 2 Starkie, 377; 5 Car. & P. 375, 421; 6 Car. & P. 23; 8 Car. & P. 104. 373; 6 Cow. 191; 2 Pick. 621; 12 Pick. 477; 1 Camp. 169.

This is á libel suit in personam for salvage, or for services claimed to be in the nature of salvage services, by the Salvor Wrecking and Transportation Company, against a corporation called the Sectional Dock Company, and against the individual members of that company.

In admiralty. This action [by Vincenzio Salzobel and others against the brig Rolling Wave, and W. W. Collins, her master] was brought to recover damages for breach of a charter party. The libel alleged that the charter was made at Philadelphia, May 22, 1862, between Collins and Rubira & Co., agent of the libellants, who live in Cuba, for a voyage from Cienfuegos to the United States, and that the charter was wholly un-complied with by the vessel.

<p>Case No. 12,276.</p> <p>Collision — Rule op Damages — Abandonment bt Owner — Estimated Damages.</p> <p>1. To a libel for collision, it is not a sufficient defense to set up that a sound boat would not have sustained any damage from the collision. Such allegation is mere conjecture.</p> <p>2. The proper rule of damages is to allow the expense of raising the vessel and putting her in repair, with a reasonable allowance for loss of time and freight, and damage to the cargo.</p> <p>3. Where the owner had, after collision, allowed the boat to lie until she became worthless. he can only recover under the above rule. He has no right to abandon the vessel and claim a total loss. i</p> <p>. 4. Where, in such case, the only evidence introduced was as to the total value of the boat, the court may either allow nominal damages, or estimate them from the court’s knowledge of such cases and the general facts proven.</p>

Assumpsit for money had and received. The cause was tried upon the general issue, when it appeared that the plaintiff [H. T. Sampayo], in 1812, after the declaration of war, shipped on board of the American vessel called the Dolphin, commanded by the defendant [John Salter] fifteen hundred barrels of flour, to be carried from Baltimore, where the vessel then was, to Lisbon.

<p>Case No. 12,278.</p> <p>Pleading in Equity — Sufficiency of Answer-Limitation of Actions — Notes of Suspended Bank — Effect of Decree.</p> <p>1. Under the 39th equity rule, when a defendant sets up in his answer the bar of the statute of limitations, and the same is well pleaded, he is thereby excused from further answer to such parts of the bill as are covered by it.</p> <p>2. When a bank has suspended payment and its bills have ceased to circulate as money, the statutes of limitation apply to them as to other contracts.</p> <p>3. The sixth section of the act of the legislature of Georgia [Laws Ga. 1869, p. 133] approved March 16, 1869, entitled an “act in relation to the statute of limitations and for other purposes,” applies to a suit founded on the notes of a suspended bank.</p> <p>4. A statute which took effect March 16, 1869, and which declares that all actions upon contracts, etc., which accrued prior to June 1, 1865. shall be brought before January 1, 1870, or both the right and right of action shall be barred, does not impair the obligation of contracts and is not unconstitutional.</p> <p>5. When a creditor’s bill is filed in the state court, under the laws of Georgia, to settle a trust, all creditors notified of the bill according to law are parties and bound by the decree.</p>

<p>[Appeal from the district court of the United States for the Southern district of New York.]</p> <p>This was a libel in rem, filed in the district court, by the owners of the brig Iola against the steamboat Sampson, to recover damages for a collision which occurred a short distance outside of Sandy Hook, on the south shore of Long Island. The district court decreed for the libellants. [Case No. 7,057.] The commissioner reported in their favor 82,150, which was reduced, on exceptions to his report, to $1,121.20. They claimed $4.-585.73. Both parties appealed from the decree.</p>

[Appeal from the district court of the United States for the Eastern district of Pennsylvania.] A large steamer was coming, on a moonlight and pretty clear night, up the Delaware and opposite the city of Philadelphia, at her ordinary speed of eleven miles an hour; the tide being full in her favor, and she having come up the middle of the channel (here about nine hundred and sixty feet wide), that she might have the whole benefit of the current.

[Appeal from the district court of the United States for the district of Massachusetts.] This was an appeal from a decree of the district court, pronouncing for a lien on a domestic vessel, for the price of materials used in its construction, under a statute of the state of Massachusetts.

Assumpsit for freight. The defendant proved that there was a written charter-party signed by Carnes and Johnson, and that the defendant had one part, and the plaintiff the other. The defendant required the plaintiff to produce his part.

There were two libels in admiralty, against the barque Sam Slick, for materials used in the’ construction of that vessel, and furnished by the libellants to the builders. Manson & Pernald. The libels were founded upon the statute of Massachusetts of 1848. c. 290/ which is as follows: ’ : “Section 1.

<p>Case No. 12,284.</p> <p>Bankruptcy — Appeal—Summary Proceedings— Jurisdiction.</p> <p>An assignee obtained an order of the district court, requiring the bankrupt and certain other parties to deliver to him property belonging to said bankrupt. From this order an appeal was taken to the United States circuit court, in form and manner prescribed by the eiehth section of the bankrupt act. The assignee moved to dismiss the appeal on the ground that the proceedings in the district court were summary, and coiild only be reviewed by summary petition, and, therefore, not a case for an appeal under the eighth section of the bankrupt act Held, that although the appeal might be irregular, the district court had jurisdiction, and from the evidence was justified in making the decree appealed from. Decree affirmed with costs.</p> <p>SAMSON v. BLAKE. See Case No. 2.802.</p>

<p>[This was a bill in equity by Amos J. Samson, assignee of Alanson M. Clark, against Oscar A. Burton, the Franklin County Bank, and Carlos C. Burton.]</p>

<p>[This was an action by Amos J. Samson, assignee in bankruptcy of Alanson M. Clark, against Oscar A. Burton and Alanson M. Clark.]</p>

The Central Overland California & Pike’s Peak Express Company was incorporated by the legislature of the territory of Kansas, with an authorized capital stock of $1,000,-000, represented by shares of $100 each. It was, among other things, authorized to, and it did, establish, maintain, and operate a line of stages, running from Leavenworth and Atchison, in Kansas, to certain towns in Colorado, and thence to Great Salt Lake City, in Utah.

<p>Case Wo. 12,289.</p> <p>Notes— Patees — Construction.</p> <p>A note payable to A, B, C, or D, is payable to the promissees individually, and not to the three first jointly', or the fourth.</p> <p>[NOTE. Durham Spaulding subsequently brought an action in his own name. There was judgment for plaintiff. Case No. 13,216.]</p>

This was a libel by the owners of the schooner Sophy Ann to recover for the loss of the schooner, which was sunk in the Sound, off Black Rock, in a collision with the schooner Sam Weller. The night was dark. There was controversy as to the wind, and as to the courses of the respective vessels, and as to whether the Sophy Ann had her lights properly burning.

This was an action on the ease [by Moses Sanborn, Joseph L. Cilley, and James Bell against Amasa Stetson] for fraudulent misrepresentations, alleged to be made by the defendant to the plaintiffs upon the sale of certain lots of land in the town of Carmel, in Maine, owned by the defendant, and sold for the sum of $01,903.37.

<p>Case No. 12,291a.</p> <p>Costs — In Admiralty — To Pkoctob — To Clerk— To Commissioners.</p>

<p>Case No. 12,291b.</p> <p>Pilotage — In the Sound — Limit of Distance— Costs.</p> <p>1. P., a pilot, offered his services to a schooner bound through Hell Gate, at a point as far east hs a line S. S. E. from Block Island, and was refused; and afterwards B., another pilot, offered his • services to the same vessel off Oak Neck, and was also refused, and thereupon B. libelled the schooner to recover half-pilotage under the statute: and it was alleged in defence that, after arriving at New York, the schooner settled the claim of P. by paying him a sum less than half-pilotage, and that B. was not the first pilot to tender his services and could not recover: Eeld., that it is not reasonable that Hell Gate pilots may make legal tender of service as far east as Block Island, where their services cannot possibly be needed.</p> <p>[Cited in The Glaramara, 10 Fed. 680.]</p> <p>2. The tender of service by P. was not valid, and therefore the tender by B.,was the first one legally made.</p> <p>3. The controversy being forced upon the vessel by two pilots to settle their conflicting claims, no costs would be given to the libellant.</p>

Appeal [by D. G. Sanders] from the decision of the commissioner of patents, refusing him a patent for alleged improvement in constructing powder mills.

<p>Case No. 12,293.</p> <p>Maritime Lien — Loss or Damage to Goods — Affreightment.</p>

<p>Case No. 12,294.</p> <p>Indemnity — Measure of Damages — Evidence —Effect of Judgment.</p> <p>1. A. sold to B. a negro, and agreed that if B. would defend a suit brought against him for the negro, he. A., would make good the damages sustained. Upon the negro’s being recovered from B. it was held that he was entitled to recover from A. in damages the value of the negro at the time of the recovery, and not the present value.</p> <p>2. In this case it was held further that the record of the recovery against B. by a third person was not evidence against A. of such third person’s title; but was evidence to show the fact of B.’s eviction, and the amount of the damages.</p>

[Bill filed by Benjamin D. Sanders against John T. Logan, William Bagley. and others for infringement of letters patent No. 6,545, granted to complainant for improvement in winnowing machines, issued the 19th Tune, 1849, reissued April 10, ’S55 (No. 306), praying for injunction to restrain the defendants from further use of said improvement, and for an account, &c.] 2 The claim of the original patent was as follows: “What I claim as my invention is the trunk F gradually…

<p>Case No. 12.296.</p> <p>Witness — Bias—Uncorroborated.</p> <p>[Where the relation in which a witness stands to the cause makes it reasonable to suppose that he must labor under a strong bias to testify in favor of one of the parties, inconsistencies in his testimony may oe taken into consideration to dispute his entire testimony as unworthy of credit, especially where it is not corroborated.]</p>

The libel was filed in this case [by Nathan B. Sanders against the schooner Sea Fowl] to recover seaman’s wages. ' On the return of the process, no one appearing for the vessel, the libellant moved for a default and reference, and for condemnation and sale of the vessel, as has been the practice in the court.

<p>[This was a libel for salvage by Samuel Sanderson and others against the British brig Ann Johnson and cargo.]</p>

<p>Case No. 12,299.</p> <p>■Collision between Steamer and Sail — Derr op Steamer to Change Course — Insufficient Lookout.</p> <p>IT. A steamer is always to be regarded as a vessel going free, and must, consequently, give way to a sailing vessel going elosehauled: and this implies that a sailing vessel going close-hauled shall not be at. liberty to change her course when meeting a steamer.]</p> <p>[2. Where a steamer going at nine knots, and meeting a sailing vessel going elosehauled, merely reversed her propeller without changing her helm, and it was claimed in her defense that there was not sufficient time for her to •change her course, held, that this defense was founded upon a mistaken theory; for it is manifest that a steamer going at that speed can more easily change her course than entirely arrest her progress.]</p> <p>[3. Where a steamer meeting a schooner on .a clear, starlit night failed to perceive her until within about 300 yards, although her sails presented a surface of 30 feet at right angles to the line of vision, held, that the steamer was in •fault for not maintaining a vigilant lookout.]</p>

[In the matter of George E. Sands, a bankrupt] The register certified to the court, upon request, under section 6 of the bankruptcy act [of 1867 (14 Stat. 517)] (see Rev. St. U. S. § 5010), that Charles Savary was chosen as-signee at the first meeting of creditors in this case, of whose fitness he had doubts; that, after personal inquiry, he required a satisfactory bond before he would approve the appointment; that no bond was filed for thirteen days after the meeting, and…

<p>Case No. 12,302.</p> <p>Bankruptcy — Jurisdiction of District Judge UNDER THE ACT OF 1800 — INVESTIGATION OF Assignee’s Accounts — English Bankruptcy Laws.</p> <p>[1. By the provisions of the act of 1800 [2 Stat. 19], and in analogy to the authority exercised by the lord chancellor in England under similar legislative provisions, the district judge has jurisdiction to investigate the condition of the assignee’s accounts on the petition of a creditor orthe bankrupt, for the purpose of ascertaining whether any, and what, dividends were due, and whether any surplus was payable to the bankrupt; but quiere, as to whether the district judge possessed any summary jurisdiction to direct the payment of any dividends -or surplus to the parties entitled, or whether they must be remitted to an action at law to recover the same.]</p> <p>[2. The manner in which the investigation is to be made is entirely under the direction of the district judge. He may do it in person or through the agency of some proper officer designated by him.]</p> <p>[3. In the course of this investigation, questions might arise which the court might deem proper to refer to a court of equity for a solemn and formal decision; but it would never be deemed necessary, either in this country or in England, to direct a bill to be filed to ascertain whether a sum of money had been received on a certain day by the assignees, and whether they had caused it to be properly credited in their accounts; nor would this method be resorted to to determine whether the assignees could become purchasers of the bankrupt’s estate.]</p> <p>[4. Neither by the bankruptcy act of 1800 nor by the judiciary act of 1789 [1 Stat. 73] did the circuit court have jurisdiction in bankruptcy cases, and it could not enjoin parties to a bankruptcy proceeding from seeking an investigation of the assignee’s accounts, in a summary manner, by petition to the district court.]</p> <p>[5. The origin and extent of the lord chancellor's jurisdiction in England over the commissioners and assignees in bankruptcy, considered, and its development traced under the various statutes by which the English bankrupt system was amended and perfected.]</p>

Bill in equity [by Anna Sands against John E. H. Champlin] to enforce a legacy in the will of Ray T. Sands, deceased, as a supposed charge on certain real estate devised by him to Samuel P. Robinson, under whom the defendants claimed title, as purchasers of the estate.

<p>Case No. 12,304.</p> <p>Bankruptcy —Award to Assignee — Who Entitled to Sue.</p> <p>Upon the construction of the following act of congress, viz. [6 Stat. 2S7]: “Be it enacted. &c., that there be paid after the first day of March, one thousand eight hundred.and twenty-three, out of any moneys in the treasury not otherwise appropriated, to Ebenezer Stevens and Austin L. Sands, representatives of Richardson Sands, deceased, to Robert Morris, surviving assignee under the late United States law of bankruptcy, of Comfort Sands, or to whomsoever shall appear to the comptroller of the treasury to be entitled to his share, and to Joshua Sands, the sum of twenty-two thousand nine hundred and seventy-eight dollars, in full satisfaction of their claim, upon the United States, under an award of referees in favor of them and others, dated at New York, on the twenty-fifth of October, one thousand seven hundred and eighty-seven, and the contracts therein referred to, one-third part of which sum is to be paid to each of the said Richardson, Comfort and Joshua Sands, or to their legal representatives as above mentioned. Provided, that before such payment each of the said parties shall relinquish to the United States all further c-laim against them on account of said award, and the several contracts upon which that award was founded.” — it was held, that Comfort Sands could not be entitled in 1ns own right to any part of the money mentioned in the act; and semble, as there was nothing to prevent a suit’s being maintained in the name of any one who was legally entitled, it was unnecessary to use his name to enforce the rights of others.</p> <p>NOTE. In construing a statute, the intention of the lawgiver, when once ascertained, is to prevail over the literal sense of the words which are used. Such intention is to be gathered from a consideration of all parts of the statute taken together. This may be presumed according to the necessity of the matter, and of that which is consonant to reason and good discretion. McDermut v. Lorillard, 1 Edw. Ch. 273. When the words of a statute are doubtful, general usage may serve to explain them; but the maxim, “Communis error facit jus,’’ has no application to the usages of particular corporation towns or other places. Currie v. Page, 2 Leigh, 617. In the United States, where the legislative power is limited by written constitutions, a declaratory statute cannot have the legal effect of depriving an individual of a vested right, or of changing the rule of construction as to pre-existing law. Salters v. To-bias, 3 Paige, 33S. In the construction of a statute, the whole law is to be examined together, and one part construed by another, with a view to give effect and operation to the whole, if it can bo done. Chesapeake & O. Canal Co. v. Baltimore & O. R. Co.. 4 Gill & J. 4. It is laid down in some of the books, that, in construing a statute, the title (being no part of it) is not to be regarded; but we have high authority in this country for a different rule of construction. The title, however, cannot control the express words of the enacting clause. Id. The preamble of a statute is a key to its construction. Id. Where a corporation was created to effect a particular object, as to make a river navigable, which was not so before, and no other mode of accomplishing that result was pointed out in the charter, it will be intended that the legislature designed that the river was to be made navigable in an? of the known modes in which the navigation of the river may be improved. Id. Every law which is to wrest from an individual his property, without his consent, must be strictly construed. Id. 5. All statutes in pari materia are construed as one law. Id. Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them as best to answer that intention; which may be collected from the cause or necessity of making the statute, or from foreign circumstances; and when discovered, ought to be followed, though such construction may seem to be contrary to the letter of the statute. Id. 6. If laws and statutes seem contrary to one another, yet, ■ if by interpretation they may stand together, they shall stand; and, when two laws only so far disagree or differ as that by any other construction they may both stand together. the rule that subsequent laws abrogate prior and contrarient laws, does not apply, and the last law is no repeal of the former. Id. Repeals of statutes by implication are things disfavored by law, and never allowed of but when the inconsistency and repugnancy are plain and unavoidable. Id. When it is 'manifestly the intention of the legislature, that a subsequent act shall not control the provisions of a former act the subsequent act shall not have such operation, even though the words of It. taken strictly and grammatically, -would repeal the former act. Id. A statute granting chancery powers to relieve against all penalties and forfeitures in actions at common law. it seems may be allowed, if such is its general language. to operate upon penalties and forfeitures already incurred at the time of its enactment: without violating the principle that vested rights are not to be disturbed; the party injured having still the right to recover all which in equity and good conscience is due to him. Potter v. Sturdivant. 4 Greenl. 154. Upon every sound principle of construction, a reference to a term used in a statute, must be in its direct and primary sense, as expressly defined, and not in an assimilated interpretation. And this rule is more especially applicable when the express meaning will accomplish all that was designed by the framers of the law. Per Strong, P. J., Cruger v. Oruger, 5 Barb. 225. The sixteenth section of the act of congress, passed on the 18th of February, 1793, entitled “An act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same” (1 Stat. 305), prescribes the manner in which foreign merchandise shall be specified in the manifest of a vessel going coastwise, and imposes a pecuniary penalty upon the master for failing to comply with it; but does not forfeit the goods. U. ¡3. v. Carr, 8 How. [49 U. S.] 1.</p>

Motion to remand a cause to a state court. The plaintiff in this action, William G. Sands, was a citizen of the state of New York. Two of the defendants, Charles B. and Julia Smith, were citizens of the state of Nebraska; the third, Lydia A. Salisbury, was a citizen of Missouri. The plaintiff, in April, 1868, brought an action against the above named defendants, in one of the state courts of Nebraska.

Letters-patent [No. 38,987] were granted to the complainant [Thomas Sands], June 23, 1864, for an improvement in machines for making machine knitting-needles.

In bankruptcy. This was a petition by Francis B. Peabody as trustee, for an order on the assignee of the bankrupt to pay over to the petitioner tbé proceeds of certain policies of insurance.

The Sandy River Bank, of Farmington,. Maine, was established in 1853, with a capital of $50,090. Of this capital a controlling-interest, amounting to $38,000, was taken by the owners and managers of the Merchants- and Mechanics’ Bank of Chicago, the remaining $12,000 being held by parties in Maine. At that time Stephen Bronson was cashier- and general financial agent of the Merchants and Mechanics’ Bank.

S. W. Alden filed petition April 28, 1871, against Sylvester Sanford, alleging as the act of bankruptcy, that on the 29th of October, 1870, the debtor made certain transfers of real and personal property, with intent to delay his creditors.

The plaintiff is the assignee in bankruptcy of Wm. C. Hill. The defendants are Wm. C. Hill, Lackland and Clark, the executors and trustees named in the will of James B. Hill, and Edwards, trustee in a deed of trust for the benefit of Mathews, executed by William C. Hill on the property in controversy.

[Bill in equity [by Glover Sanford against the Merrimack Hat Company], praying for an account and for an injunction for the infringement of letters-patent upon a new and useful improvement in sewing-machines for stitching the sweat-cloths to hats. The chief question was that of infringement.] 2 [The letters patent No. 53,927 were granted to Sanford & Wheeler April 10, 1866.]

[Bill in equity by Glover Sanford and others against Matthew Messer and others to restrain alleged infringement of letters-patent [No. 53,927] for an improvement in sewing-machines, granted the complainants, as assignees of Frederick S. Sanford and Dwight Wheeler, April 10, 1866; and for an account.

On demurrer to a plea to the jurisdiction. Action of assumpsit upon certain interest warrants or coupons annexed to bonds issued by the town of Portsmouth to aid in the construction of a plank road. Defendant pleaded to the jurisdiction upon the ground that assumpsit would not lie, insisting that mandamus was the only proper remedy. Plaintiff [Horatio W. Sanford] demurred.

<p>[On transfer from the district court of the United States for the Northern district of ■California, pursuant to act of July 1, 1834.]</p> <p>This case, involving the title of the city of San Francisco to the pueblo lands, was originally commenced by the filing of a petition by the city before the board of land commissioners on July 2, 1852. The petition set forth a claim made by the city to so much of the northern portion of the peninsula of San Francisco as would contain an area of four square leagues, upon the ground that upon the acquisition of the country, July 7,1846, the then pueblo, now city, of San Francisco, was a town having a population of about one thousand inhabitants, and that under and by virtue of the laws of Mexico, it was entitled as such pueblo, to this quantity of land. There was much testimony taken and a number of able counsel engaged, and after a very thorough presentation of the case, the land commissioners, on December 21, 1854, filed their decree confirming to the city all the land south of the fort and casamata at Fort Point, and north of a line running from the southern part of Eincon Point through Lone Mountain to Point Lobos, and known as the ■“Vallejo Line.” The decree did not contain any exceptions or reservations, and did not refer to the character or nature of the title held by the city; but was in terms merely a confirmation of the claim made by the city, within the limits mentioned, particularly describing them. In rendering their decision, Commissioners Thompson and Farwell concurred in the prevailing opinion, and Commissioner Felch filed a dissenting one. The former discussed at great length the Spanish and Mexican laws in reference to pueblos, the various documents and evidence presented in the case, and among others, the so-called Zamo-rano document. This paper, since ascertained and admitted to be spurious, purported to be a copy of a letter from Governor Figueroa to General Vallejo, dated Monterey, November 4, 1S34, containing an approval by the government of a plan therein referred to as having been presented by General Vallejo in reference to the pueblo of San Francisco, adopting the Vallejo line, which had been marked out by him, as the boundary, and providing for the installation of the first ayuntamiento, or town council there. It was called the Zamorano document from the fact that it purported to be attested as a true copy by Zamorano, formerly secretary of the territorial government of California. Besides the Zamorano document, there were several other documents introduced and discussed, as to the genuineness of which no question has been made, showing or tending to show the existence of an ayuntamiento either at the presidio of San Francisco or at the Mission Dolores as early as 1834 or 1835. Upon this •branch of the subject, and for the purpose of exhibiting the general character and style of reasoning of the prevailing opinion, the following extract therefrom may -be given:</p> <p>“It is probable, from the testimony, that when the pueblo was first organized, the site of the village or town proper was intended to be at the presidio; but subsequently, from the superior advantages of the anchorage at the place called Verba Buena, that point was selected as the most eligible for that purpose. It appears from the deposition of Wm. A. Eichardson, and the communication of Governor Castro annexed thereto, that in the autumn of 1835 Eichardson was employed to lay off and make a plan of a town at that point, which plan was communicated to the governor and approved by him. About the same time the resolution of the deputation was passed, authorizing the ayuntamiento to grant building lots at that place, which was communicated to the municipal authorities in the order of Governor Castro of the tweuty- ■ sixth of October, 1835, and dated just six days after the communication to Eichardson approving the plan of the town as submitted by him. There is an evident attempt in the testimony of Eichardson to make it appear that the municipal organization here referred to was for a pueblo at the Mission Dolores or San Francisco de Asis, as it was indifferently called. But this is so palpably contradicted by the other evidence in the case, both documentary and oral, and so inconsistent with the other parts of his own testimony, as to entitle it to no weight whatever.”</p> <p>“It is objected further, that even admitting these proceedings to be sufficient for the establishment of a pueblo, so far as the territorial authorities -were concerned, that in order to give them effect and validity under the law which authorized them, the approval of the supreme government was necessary. This is unquestionably true, and we accordingly find that the resolutions of the territorial deputation directed that they should be communicated to the government at Mexico for that purpose. There is no evidence in the case that such approval ever was had; but the resolutions to that effect were doubtless sent to the government by Governor Figueroa, as we can scarcely imagine that one who was so punctual and exact in the discharge of all his official duties, would have neglected it in this instance. The existence of the pueblo appears to have been uniformly recognized by the public authorities from that time, and its civil officers continued in the exercise of their functions without any question as to their authority or the legality of their acts up to the change of government, a period of nearly twelve years. Such approval, therefore, according to' well recognized legal principles, would be presumed.”</p> <p>The conclusions arrived at by Commissioners Thompson and Farwell were stated by them at the close of their opinion, in the following language:</p> <p>“First. That a pueblo or town was established under the authority of the Mexican' government, in California, on the site of the present city of San Francisco, and embracing the greater portion of the present corporate limits of said city. Second. That the town so established continued and was in , existence as a municipal corporation on the seventh day of July, 1846. Third. That at or about the time of its establishment, certain lands were assigned and laid oft in accordance with the laws, usages and customs of the Mexican nation, for the use of the town and its inhabitants, and the boundaries of said lands determined and fixed by the proper officers appointed for that purpose by the territorial government. Fourth. That the boundaries so established are those described in the communication from Governor Figueroa to M. G. Vallejo, dated November 4, 1834, a copy of which is filed in the case, marked Ex. No. 18, to the deposition of said Vallejo. These conclusions bring the case, in our opinion, clearly within the operation of the presumption raised in favor of a grant to the town by the fourteenth section of the act of the third of March, 1851 [9 Stat. 634], and entitled the petitioner to a confirmation of the land contained within the boundaries described in the document above mentioned.”</p> <p>Commissioner Felch, in his dissenting opinion, held that the testimony failed to establish the foregoing conclusions arrived at by his associates, and presented a number of reasons tending to show, as he claimed, that there had not been established any municipal organization of a town within the limits described in the decree of confirmation. But at the same time he held that the city was entitled to the presumption of a grant in her favor, under the fourteenth section of the "act of March 3, 1851. His language, forming the close of his opinion, was as follows:</p> <p>“Proof is given of the existence of a small town known as Verba Buena, on the site of the present city, on the seventh of July, 1846; this was requisite under the law to entitle the present corporation to a presumption of a grant; but this being proved, the presumption extends to the lots as they existed at the time of the passage of the act (of 1851), and was not confined to the limits of the original Mexican town. It was the American city as it existed in 1851, which congress had in its eye, and not the little germ from which it sprung, when it provided for making its corporation the depository of the titles to these lands, and this design of quieting the titles by the presumption of a grant to the city would fail to be secured, and the manifest object of the law be defeated, if all the lots within its chartered limits, at the time the act was passed, were not embraced in the decree of confirmation. Beyond these limits the petitioners have established no rights. The decree, therefore, should, in my judgment, be entered in favor of the city for the lots within the corporation limits as described and established in the charter of 1850, and no more.”</p> <p>The decree of the land commission, which followed the prevailing opinion, was filed, as before stated, on December 21, 1854. Both parties were apparently dissatisfied; the city, because the entire claim had not been allowed, and the United States, because so much of it was allowed; and both gave notice of intention to prosecute an appeal to the United States district court, and to that court the case was taken. Afterward, in 1857, the appeal on the part of the United States was voluntarily withdrawn by direction of the attorney-general, and in accordance with a stipulation filed by the United States district attorney, the appeal was dismissed by the court, and an order entered giving the city leave to proceed upon the decree of the land commission, as upon a final decree. The city, however, declined to accept the proffered leave; but on the contrary, insisted upon its full claim, and continued to prosecute its appeal. Such was the condition of the case, and the position of the parties upon the passage of the act of July 1, 1864 (13 Stat. 332), authorizing a transfer of the case to the United States circuit court. In accordance with the provisions of that act, the district court, on the fifth of September, 1864, transferred the case to the United States circuit court. On the fourth of October following it was argued and submitted, and on the thirty-first of October was decided.</p> <p>Briefs on behalf of the United States were also filed by Nathaniel Bennett, Edmund Randolph and Horace Hawes. The briefs were very elaborate, and were devoted mainly to the question of the existence, or non-existence, of the asserted pueblo under the Mexican government.</p>

<p>Case No. 12,317.</p> <p>Internal Revende — Banks — Dividends ■ —Interest.</p> <p>1. If an appeal is taken from an illegal assessment, decided against the appellant, and the tax afterward collected, it is not necessary to take a second appeal after payment, before commencing suit to recover the tax so collected. 14 Stat. Ill, 152, § 19.</p> <p>2. Where a savings institution, having a capital stock and reserve fund which are security for.the deposits, receives deposits, loans the capital, reserve fund and deposits, and, after paying the expenses, sets apart a portion of the net earnings for the reserve fund, and divides the balance among the capital stock, reserve fund and deposits in proportion to the respective amounts and the time they have been drawing dividends, the moneys so paid to depositors are dividends within the meaning of the section 120 of the internal revenue act, and not interest within the meaning of the proviso to that section, and are subject to five per cent. tax. 14 Stat. 138.</p> <p>German Saving & Loan Soc. v. Cary. San Francisco Savings Union v. Oulton. San Francisco Savings Union v. Cary, are similar cases, and decided in the same way.</p>

[In the matter of Sanger & Scott, bankrupts.] By JOHN FITCH, Register: It having been referred to me to take the testimony upon the services that have been performed herein by the counsel for the petitioning creditors, and also to tax the disbursements actually and necessarily incurred herein, and also to report on proof what counsel fee should be reasonably allowed said counsel for his services in obtaining said adjudication in view of the amount of assets in the hands of…

<p>Case No. 12,319.</p> <p>Public Lands — Railroad Grants — “Reserved” Lands — Mexican Grants.</p> <p>[1. Under the act of July 1, 1862, granting lands to certain railroad companies to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean, there was a present grant, which attached to particular sections within the prescribed limits upon the definite location of the road, unless such lands were excepted or reserved from the operation of the act, and this grant could only be defeated by failure to perform the conditions of building the road as prescribed.]</p> <p>[2. Lands in California, which were claimed at the time of the definite location of the road under alleged Mexican or Spanish grants, which were in fact fraudulent and void, and were aft-erwards so declared by the proper court, passed by the grant to the railroad companies; and were not excepted or “reserved,” so as to be excluded from the grant either by the act of 1851, to settle private land claims in California, or by the act of 1852, providing for the survey of public lands in that state, or by the acts of March 3, 1853, to extend pre-emption rights to such lands.]</p> <p>[Cited in U. S. v. McLaughlin, 30 Fed. 157.]</p>

This was an action of debt upon an award in favor of plaintiff made by arbitrators, in a controversy between plaintiff and defendant. The following is the agreement submitting the claims of the parties: “It is agreed between Tlios. Sangster and Thos. Quantrill, that they refer their business to the arbitrament of T. L. Thurston and Wm.

. [In equity. This was a final hearing, on pleadings and proofs. The bill was founded on letters patent [No. 8,154] for an “improvement in lanterns.” The patent was originally issued June 10th, 1851, and claimed the mode of attaching the lamp to the lantern by means of the springs and flanges, as therein substantially described.

This was a prize cause, coming before this court on appeal from the district court of Maine. The cargo was claimed by the master in behalf of twenty-six different shippers, including a claim for his own adventure; and the ship was claimed by him as the property of Da Costa, Guimaraens and Co. of Liver pool.

<p>G. Sullivan presented a petition of the officers of the private armed brig Yankee, praying that their shares in the proceeds of the prize, San Jose Indiano, should be paid over to their special agent, Captain Snow, they revoking the powers given by them to the general agents. They also prayed, that the shares of some part of the crew, represented by them, should be paid in the same manner. A part of the property was still uncondemned. Commissioners were appointed. See The St. Lawrence [Case No. 12,-233]. In this case, the prize goods, by an agreement of the parties, were removed from the district of Maine to Boston, and there sold by an auctioneer. The proceeds were paid into the circuit court, before which the cause was brought by appeal. A part of the cargo being condemned at this term, the marshal claimed commissions.</p> <p>J. T. Austin contended, that, as the law directed the property to be sold, when condemned by the marshal of the district, the marshal of Massachusetts could not, in this case, be defeated of his rights, by the agreement of the parties. The property was originally in the custody of the district court of Maine, but it being afterwards brought within this district, and here condemned, the right of the marshal of Maine was transferred.</p> <p>Mr. Pitman contended, that if any officer was entitled to commissions in this case, it was the marshal of Maine.</p>

<p>Case No. 12,324.</p> <p>Prize — Okdek for Farther Proof — Shipments.</p> <p>In general the prize court will not trust a claimant with an order for farther proof, who has shown himself J capable of abusing it. Ev. •ery shipment remains on the account and risk -of the shippers, unless there be an express oi implied authority to change the proprietary interest, and put the shipment at the risk of the consignee. Defects of the case on farther proof, inflame suspicions. Circumstances leading to condemnation.</p> <p>[On appeal to the supreme court, the decree of this court, as rendered in Case No. 12,322,. was affirmed. 1 Wheat. (14 U. S.) 208.]</p>

<p>Case No. 12,335.</p> <p>Maritime Liexs — Surplus after Sale — Master’s-Claim for Wages — Disbursements.</p> <p>After the liens upon a libelled vessel are satisfied out of the proceeds of her sale, the surplus funds remaining in court are subject, as against the owner, to the master's claim for wages and for disbursements on account of the vessel up to the time of her seizure, but not for wages or disbursements after the time of hei seizure.</p> <p>[Cited in The Balize. 52 Fed. 415.)</p>

[Appeal from the district court of the United States for the Southern district of New York.] George W. Aspinwall and others, owners of the propeller Ocean, filed a libel in rem, in the district court, against the steamboat Santa Claus, to recover damages caused to the former vessel by a collision with the latter in the night time, on the Hudson river, just above Dunderbarraek Point, about 42 miles from New York, the propeller being bound up the river and the steamboat coming…

<p>The passenger steamboat Santa Claus, going down the Hudson river, and the iron steam propeller Ocean, proceeding up the river, deeply loaded with coal, came in collision about twelve o’clock on the night of the 5th of June, 1846, a quarter of a mile above Dunderbarrack Point, at the foot of the Horse Hace. The larboard guard of the Santa Claus was broken up, the outer timber wrenched off and driven nearly through the propeller, breaking a hole in her starboard bow, and was found passed athwart her seventeen feet •under her upper deck. The Santa Claus received great damage in her guard timbers, wheel paddles and arms. The owners of the propeller attached the steamer, claiming compensation for the injuries caused by the negligence or want of skill of the persons managing her. The case set up by the respective parties by the libel and answer is this: The libel alleges that the propeller is owned in Philadelphia, is of 190 tons burthen, and sailed from that port for Albany and Troy, on the 4th of June; that on the night of the 5th she was violently and carelessly run into by the Santa Claus, about forty-two miles above New.-York, a few rods above Dunderbarrack Point, the propeller then having two signal lights burning, one at the stem and the other at the main gaff; that the blow made a breach in her starboard bow, six feet in length by three feet in width. That the tide was ebb and strong and wind ahead, and the propeller was not making headway exceeding four miles the hour; that to avoid the strength of wind and tide the propeller was kept close to the west side of the river, not more than three or four rods from the shore, after leaving Caldwell’s landing. That on doubling Dunderbarrack Point, the Santa Claus was discovered coming down the river one-third across from the eastern shore, and apparently heading directly down- the reach, on a line far eastward of the propeller and her course. That the propeller continued close to the west shore, till observing the Santa Claus had suddenly changed her course and was apparently heading directly for the propeller, when her helm was put hard a port, and her engine was stopped and backed, so that her headway became entirely deadened, and her engine kept rapidly backing when the Santa Claus ran upon her at high speed, striking her on her starboard bow with the larboard bow of the Santa Claus, causing the injuries before specified. That the propeller was at the time on a proper, safe and usual course in navigating that portion of the river, and did every thing promptly which ought to have been done to avoid the collision, and that it was out of her power to do so; but the Santa Claus, with ease and safety, could have avoided the' collision, if those navigating her had not unskilfully and negligently steered across and upon the bows of the propeller; and that the damage was occasioned by the fault and mismanagement of the Santa Claus, and not that of the propeller. The answer denies generally the statement of particulars made by the libellants, and avers that the facts were — That at about midnight of the 5th of June, the Santa Claus was running down the river on the usual and proper track and course, with an ordinary head of steam, and at the rate of from twelve to fifteen miles the hour, and at a quarter of a mile above' the turn of the Dunderbarrack, her pilot discovered the propeller below, half a mile to the southward and eastward, and three or four hundred yards from the western shore, having one light elevated above her decks, two masts, and her sails down, and he supposed her a vessel at anchor, her head being up the river. That the pilot and crew of the Santa Claus did all in their power, and exercised proper and due vigilance and skill to avoid the collision, and that it was caused by the wilful ignorance, carelessness and negligence of the master, pilot arid crew of the propeller. That it is usual and customary, and the law of the river for steamboats going up in turning Dunderbar-rack Point, to keep well to the eastward, so as to leave room for boats coming down to make that turn in safety; that the pilot of the propeller failed so to do, but headed to the northward and westward in violation of his duty, &c., &e. That steamboats meeting on the river are each bound to port their helm and turn to starboard or the right, so as to pass with safety to the larboard of each other, but the pilot of the propeller ignorantly and carelessly neglected so to navigate his vessel; but on the contrary, star-boarded his helm and steered to the larboard. That the propeller was bound by law and the usage and custom of the river to carry and show two sufficient lights, one at her stem and the other raised above her stern, but that she had at the time no light at her stem; and that at the time of the collision she was widely out of her proper track and place. The answer also charges the ignorance and incompetency of the pilot and crew of the propeller.</p> <p>The points contested upon the hearing, and to which numerous witnesses were examined, turned chiefly on the inquiry whether the propeller was guilty of culpable negligence on the occasion which caused the collision complained of. Those charged against her related to her position in the river and her proximity to the western shore, and particularly to her omission to display a stem and stern light; and that running with only a light hoisted above her stern disabled the Santa Claus determining how she was heading, and from taking proper measures to avoid her. Much time was consumed in taking proofs on that branch of the defence. It was overlooked on both sides, until the evidence had closed and the argument was opened, that it was stated in the answer “that the pilot (of the Santa Claus) discovered a vessel with two masts and her sails' down, distant about half a mile to the Southward and eastward, and about three or four hundred yards from the western shore; he supposed it to be a schooner at anchor, her head being up the river.” This dispenses with the necessity of setting forth in detail the evidence given to this point by both parties. It was regarded as a cardinal fact, touching the condition and navigation of the propeller, to ascertain whether she was so fitted arid conducted as to render it uncertain to the approaching vessel’ how she was heading, and the explicit declaration of the claimants in their answer that the pilot knew her head was up the river being considered by the court conclusive against them on that point, the evidence at large is omitted.</p> <p>The other facts in the case will sufficiently appear in the opinion of the court.</p>

<p>Case No. 12,328.</p> <p>Bill or • Lading — Special Clause — Delivebt or CAKGO — AG ENT.</p> <p>1. Under an ordinary bill of lading, delivery on a wharf of the goods transported by the vessel is sufficient, provided due notice be given to the consignee, and provided the different consignments are properly separated, so as to be open to inspection by their respective owners, and a fair opportunity is afforded to the consignee to remove his goods.</p> <p>[Cited in Dibble v. Morgan, Case No. 3,881; Unnevehr v. The Hindoo, 1 Fed. 629; The Surrey, 26 Fed. 794; Bonanno v. The Bos-kenna Bay, 36 Fed. 698.]</p> <p>.2, Under such a bill of lading, the carrier is responsible for the value of the goods, if he deliver them to the wrong person, even though by mistake or imposition.</p> <p>[Cited in Willis v. The City of Austin, 2 Fed. 415.1</p> <p>3. Where a bill of lading for cotton contained the following clauses: “It is expressly understood that the articles named in this bill of lading shall be at the risk of the owner, shipper, or consignee thereof, as soon as delivered from the tackles of the steamer at her port of destination, * * * and they shall be received by the consignee thereof package by package, as so delivered, and, if not taken away the same day by him, they may (at the option of the steamer’s agent) be sent to store, or permitted to lie where landed, at the expense and risk of the aforesaid owner, shipper, or consignee,” held, that such clauses were not unreasonable, and were such as a court should enforce.</p> <p>[Cited in Willis v. The City of Austin, 2 Fed. 413.]</p> <p>4. Where 142 bales of cotton were shipped on board a vessel, under bills of lading containing the above special clauses, there being also other cotton on board, and, on the arrival of the vessel, the consignee of the 142 bales paid the freight on them, and sent carts to remove them before any of them were discharged, and all of the 142 bales were discharged from the vessel •on the wharf, but thirteen of them were not received by the consignee, and it did not appear what had become of them, but, after all the other consignees had received all the cotton which they claimed, there remained on the dock thirteen hales without marks, which did not form part of the 142 bales, the cotton having been .unladen bale by bale, and the mate of the vessel having tried to separate the various consignments after the bales were landed, and having required receipts to be given for all the cotton that was removed from the wharf before he would allow it to be removed, hdd, that the vessel was not liable for the value of the missing bales.</p> <p>5. The duty of the vessel, under the bill of lading, was discharged when the cotton was put •on the dock.</p> <p>[Cited in Willis v. The City of Austin, 2 Fed. 413.]</p> <p>6. Under the bill of lading, the consignees, having had due Drevious notice, were bound to examine each bale as it left the vessel’s tackles, and was deposited on the wharf, and see if it was their cotton.</p> <p>7. Any custody or control of the cot.ton on the wharf which the mate assumed to exercise over it was unauthorized, and he had no right to demand a receipt before allowing it to be removed from the wharf.</p>

<p>[Appeal from the district court of the United States for the Southern district of New York.]</p> <p>This was an appeal in admiralty, from a decree of the district court dismissing the libel. [Case No. 12,328.]</p>

<p>Case No. 12,331.</p> <p>Pilots — Negligence — Association op Pilots — Partnership.</p> <p>[1. A licensed pilot, who, with the wind blowing off a shoal in fair weather and open daylight, runs his vessel upon it; is liable for resulting damages; and it is no defense that the vessel was unprovided with a hawser, by means of which she might have been warped off without injury.]</p> <p>[2. An association of licensed pilots owning a boat, in the name of which bills for services of the individuals are made out, collected, and credited, and to which moneys paid to the individuals are turned over, the profits, after deducting expenses, being equally divided, is a partnership, and liable for the misfeasance or negligence of one of such pilots while employed in piloting a vessel.]</p>

<p>These were four actions tried together. The first was brought by Jacob Lorillard, owner of the steamer Brunette, against the steamship Santiago de Cuba, the second by Henry Lyles, Jr., a shipper of cargo on board the Brunette, against the Santiago de Cuba, the third by Edward Murphy, also a shipper of cargo on the Brunette, against the Santiago de Cuba and Jacob Lorillard, and the fourth by the North American Steamship Company, owners of the Santiago de Cuba, against Jacob Lorillard. The actions arose out of a collision which occurred off Squam Inlet, on the night of February 1st, 1870, between the steamship Santiago de Cuba, a large steamer, of 1,000 tons burden, bound from Havre to New York, and the Brunette, a propeller of 200 or 300 tons burden, bound from New York to Philadelphia.</p>

[Appeal from the district court of the United States for the Eastern district of New York. [These were libels by the North American Steamship Company against Jacob Lorillard, and by Edward Murphy against the Santiago de Cuba and Jacob Lorillard, to recover damages for collision.]

<p>Case No. 12,334.</p> <p>Salvage — In Disthess — Compensation — Distribution.</p> <p>1. Towing a steam vessel which has lost the use of her steam machinery by an accident, although she is sound in hull and masts, is a salvage service.</p> <p>[Cited in The Emily B. Souder, Case No. 4.455; The Plymouth Rock. 9 Ped. 416; MeMullin v. Blackburn, 59 Fed. 178.]</p> <p>2. It is not necessary that the distress should be actual or immediate, or that the danger should be imminent or absolute. It is sufficient if, at the time when the service is rendered, the vessel has encountered any damage or misfortune which may possibly expose her to destruction if the service be not rendered.</p> <p>[Cited in McConnochie v. Kerr, 9 Fed. 53; The Plymouth Rock, Id. 416; The Alaska, 23 Fed. 608; The Veendam, 46 Fed. 491.]</p> <p>3. Where a steamer, which has lost the use of her machinery, was towed by another steamer about sixty or sixty-five miles to Charleston, the latter losing by the service not over two or three hours of time, and the former saving three or four days, the vessel towing, with her cargo, being worth $230,000, and the saved vessel and her cargo being worth $100.000, the court awarded $900 salvage. Of this $900. $400 was allotted to the owner of the saving vessel, and $50 to her master, and the remaining $450 was ordered to be divided among the officers and crew, including the master, in proportion to their wages.</p> <p>[Cited in The Colon, Case No. 3,024; The Leipsic, 5 Fed. 113.]</p>

<p>Case No. 12,335.</p> <p>Salvage — Character of Service — Compensation — Distribution.</p> <p>1. Where a steamer which had broken her machinery, so that it could not be used, but could have been made fit. for use in a day or two, and which was making two and a half knots an hour under canvas, was towed by another steamer, for about thirty-four hours, to Fortress Monroe, and thence to Norfolk, where the salvor vessel was compelled to go for coal, and, at the time of their arrival at Fortress Monroe, it began to blow, and stormed so heavily that the latter was unable to go to sea till the second day after, and she then met with severe weather on her way to New York, by which she was somewhat injured and was also compelled to put back to Norfolk for more coal: Held, that neither could the fact, that the salvor vessel was saved from exposure to storm by going into Fortress Monroe, be taken into consideration to diminish her compensation for the services she rendered, nor could the storms which she afterwards met, or the injury which they inflicted upon her, be considered for the purpose of increasing that compensation.</p> <p>[Cited in The New Orleans, 23 Fed. 911.]</p> <p>2. The salvor vessel with her cargo and freight being worth $434,000. and the vessel saved with her cargo and freight being worth $100,000, and both carrying passengers, the-court awarded $9.000 salvage.</p> <p>[Cited in The Alaska, 23 Fed. 613.]</p> <p>3. This sum was distributed, one half to the owners of the salvor vessel, $500 to her master. and the rest to her officers and crew, including the master, in proportion to their wages.</p> <p>4. It is the policy of courts of admiralty to encourage salvage services by largo, powerful, well equipped and valuable steamers, by giving their owners one-half of the compensation awarded.</p>

<p>Case No. 12,336.</p> <p>Shipping — Delivery of Cargo — Goons not Put on Board — Lien.</p> <p>1. Where a libel alleged that 303 bales of cotton were shipped on board a steamer to be carried to New York, and that a bill of lading therefor, a copy of which was attached, was signed by the agents of the vessel, and that seven of the bales were not delivered, and were not lost by perils of the sea, and the answer admitted that the vessel agreed to carry the 303 bales, and that her agents signed a bill of lading, and alleged that a copy of it was attached to the libel, and alleged that only 273 bales were ever received on board the vessel, but that the rest were brought to New York by another vessel, and discharged upon the wharf, on due notice to the consignee, held, that on the pleadings, the authority of the agents to bind the vessel by the contract, in the bill of lading must be considered as admitted; •</p> <p>2. On the bill of lading, the burden of proof was on the vessel to show that the bill of lading was signed for bales of cotton that were never received on board the vessel;</p> <p>[Cited in Crenshawe v. Pearce, 37 Fed. 435.]</p> <p>3. That fact was not proved by the mere statement of the purser of the vessel, that they received 303 bales, and left 30 behind;</p> <p>4. There was no proof of the delivery of the seven bales at New York, and the vessel was liable for their value.</p>

<p>Case No. 12,338.</p> <p>Shipping — Master—Damage to Cargo — Absence op Crew.</p> <p>1. Much must be left to the discretion of the master of a vessel in determining the necessity of a deviation from the course of the voyage, the port of distress, and the time of remaining in such port.</p> <p>2. Where the crew of a coasting vessel, anchored in a harbor, were absent at night with the consent of the master, who remained on board alone, and the vessel was driven by a gale on a ledge of rocks; it was held, that the vessel was liable for the damage done thereby to the cargo, although the gale arose after the crew left, the absence of the crew rendering the vessel unseaworthy.</p>

<p>Case No. 12,337.</p> <p>Prize — Enemy Property.</p> <p>Vessel and cargo condemned as enemy property.</p>

<p>Case No. 12,340.</p> <p>Prize — Capture — Proofs — Jurisdiction op Court.</p> <p>1. Vessel and cargo held as enemy property, on the papers found on board; but. no legal proofs being furnished of the actual capture, or of any inability to furnish proof of the time and place of seizure, a decree of condemnation was deferred, until such testimony should be produced, or an excuse be furnished for the admission of secondary proof.</p> <p>2. There having been no appearance, on due return of the warrant of arrest of the cargo, and the capture having vested jurisdiction in the court over the property seized, the court ordered the cargo to be sold, and the proceeds to be brought into court.</p> <p>3. The vessel was not arrested on the monition.</p> <p>[Further proofs were laid before the court, and on the hearing a decree of condemnation was entered. Case No. 12,341.]</p>

[Appeal from the district court of the United States for the district of Massachusetts.] This was a case of an appeal from a pro forma decree of the district court, sitting in admiralty, dismissing the suit. [Case unreported.] The original libel was a proceeding in rem in the nature of a petitory suit in the admiralty, for the ascertainment and establishment of the title of the libellants (The New England Marine Insurance Company) to the proprietary interest of the brig…

<p>Case No. 13,341.</p> <p>Prize — Violation of Blockade.</p> <p>Cargo condemned, on further proof, for a violation of blockade by the vessel.</p>

In admiralty. Libel in rem by the United States, claiming a forfeiture of the brig ■ Sarah Bernice for landing foreign goods, subject to duty, of the value of $400, without a permit, and for importing brandy in a cask of less capacity than fifteen gallons. The claimant by answer denied the aver-ments of the libel, and alleged that if any brandy was imported as charged in the libel, that it was in quantities allowed by law, and for the use of the crew.

In admiralty. Libel in rem by the United States claiming a forfeiture of the schooner Sarah B. Hands, for landing at a domestic port without a permit, goods brought by her from a foreign port. The owners claimed the vessel, and made answer that the goods landed were fish caught in an American vessel by American fishermen and not subject to duty, and that the proper customs officer verbally assented to their being landed.

This was a libel, filed June 5th, 1871, by Lamb & Co., merchants at St. Thomas, W. I., to recover $2,270. the balance of an amount of moneys advanced by them in January, 1871, as they alleged, on the request of Terence Oocliran. master of the brig Sarah Harris, for the purpose of paying for repairs on the brig at St. Thomas, she being there a foreign vessel.

<p>Case No. 12,346.</p> <p>Maritime Lien — Advances—Credit or Vessel— Application op Patment — Commissions— Fueioht — Costs.</p> <p>1. A British vessel, in distress at St. Thomas, was sold there. One of the purchasers applied to L. & Co., to advance what was necessary to repair her, and put in their hands $2,000 on account of such advances. L. & Co., made advances, the account of which was signed by the master, amounting to $4,020 03. The vessel having gone to New York, was there libelled by L. & Go., and the court decreed that they recover the amount of moneys advanced or disbursed by them for repairing the vessel and to pay for necessary repairs or supplies. The commissioner, to whom it was referred to ascertain the amount, reported $2,648 67. being the said amount of $4.020 03. after deducting the $2,000. with interest, and $250. “commissions for disbursing same and sundries.” The claimants excepted to the report. The evidence, as to items composing $1,05413 of the $4,-020 03, failed to show that they were paid for the repairs and refitting of the vessel. The libel stated that the vessel had carried freight, and prayed that it might be applied to the libellants’ claim, but the libel was not filed against the freight, nor was it attached on process. Meld. tha+. although the persons who were to be treated as owners of the vessel, were present and gave directions in person as to the advances, yet the fact that the vessel was foreign to St. Thomas, and that such owners and master did no+ belong to St. Thomas, made the case one of advances on the credit of the vessel.</p> <p>[Cited in Stephenson v. The Francis, 21 Fed. 722.)</p> <p>2. As the payment of the $2.000 was made towards the refitting and repairing of the vessel, it must all be applied as a payment on account of the $2.365 90 which was proved to have been paid for such refitting and repairs.</p> <p>3. The libellants could not enforce in this suit any lien on the vessel, for advances for the purchase of the vessel.</p> <p>4. Commissions on such -advances as were made, when agreed on or shown to be customary in the trade, are proper items of allowance: but there was no evidence in this case to sustain the allowance of the $250.</p> <p>5. The court could make no adjudication as to the freight.</p> <p>0. The libellants were entitled to a decree for $365 90 gold, with interest at 6 per cent., but without costs.</p> <p>[This cause was appealed to the circuit court, where the decree of this court, as rendered in Case No. 12,345, was affirmed. Id. 12,347.]</p>

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

This was a libel in rem, against the ship Sarah Jane, for seamen’s wages, or shares of the proceeds of a sealing voyage. By the shipping articles, the seamen engaged themselves for a sealing voyage from New-York to the South Seas, Pacific Ocean or elsewhere, as the master might direct, and back to a port of discharge in the United States.

<p>Case No. 12,349.</p> <p>ADMIBALTÍ — JmtISDICTION—INLAND WATERS.</p> <p>1. The admiralty has jurisdiction of a libel by mariners for their wages against a vessel plying on navigable waters, though these waters are entirely within one state.</p> <p>[Cited in The Island City. Case No. 7,109; The General Cass, Id. 5,307; The Atlantic, 53 Fed. 609.]</p> <p>2. Some cases on the subject of the jurisdiction in admiralty considered.</p>

Supplies and repairs. The Sarah J. Weed was a steamboat built and owned in New York, and employed in and near the harbor of the city of New' York in towing vessels and similar duty from October, 1874, when she was new, until (June, July) 1876. In that month the steamboat was sent to the Kennebec river in Maine, and was there employed during the remainder of the summer.

<p>Case No. 12,351.</p> <p>Prize — Violation of Blockade — Release.</p> <p>Vessel and cargo released and restored to the claimants.</p>

<p>Case No. 12,352.</p> <p>Prize — Lawful Means of War — Blockade — Enemy Property — Domicile of Owner — Neutrals— Confiscation — Clearance Papers Issued by Enemy.</p> <p>1. The hostilities commenced against the United States by the seceded states have produced a state of war between t.he two communities, as consequent to which the United States are authorized to employ against their enemies the means of resistance and attack, by land or naval forces, which are justifiable under the law of nations.</p> <p>2. A blockade of the ports of their enemy is one of such lawful means, and is incident to the war power, and may be imposed by the president flagrante bello, without any act of the legislature declaring it.</p> <p>8.Property belonging to a neutral who is domiciled and carrying on trade at an enemy port is enemy property. Traffic with the enemy is forbidden by public law. A sale of property during hostilities in an enemy port, by a person domiciled and trading there, to a neutral, does not pass the title, and the property still remains subject to capture as prize.</p> <p>4. A neutral domiciled and trading in a belligerent port can neither hold title to property acquired there during the war, nor confer it upon others, against the interests imparted by capture at sea to the adversary belligerent.</p> <p>5. There is nothing in the treaties of November 19. 1794 (8 Stat. 116). December 24, 1814 fid. 218), and July 3, 1815 (Id. 228). between the United States and Great Britain, which gives to a British merchant, resident in a port of the seceded states during the war, an immunity from the general principles of public law applicable to resident neutral merchants.</p> <p>6. The act of July 3, 1861 (12 Stat. 255). does not restrict the war powers of the United States. The confiscations provided for by the 6th section of that act. and by the act of August (j. 1861 (Id. 319). can be carried into effect by the prize courts of the United States, as respects property captured at sea.</p> <p>7. The fact that a vessel carries clearance papers issued by the enemy, does not constitute, of itself, justifiable cause for her capture.</p> <p>8. To constitute a blockade of a port, an adequate force must be stationed to render the entrance or departure of vessels into or from the port dangerous.</p> <p>9. Further proof allowed to be given by the libellants on the question of violation of blockade.</p> <p>10. Vessels and cargoes condemned as enemy property.</p> <p>NOTE. In the case of The Sarah Starr the circuit court, on appeal, July 17, 1863, affirmed this decree as to the vessel and the cargo claimed by Evans, and reversed it as t.o the. cargo claimed by the Munros. • [Case No. 12,353.] A further appeal to the supreme court was taken by the claimant of the vessel, but none as to the cargo. [Unreported]. In the case of The Aigburth this decree was affirmed by the circuit court, on appeal, July 17, 1863. [Case No. 106].</p> <p>[For opinion on question of marshal’s fees after bonding for appeal, see Case No. 103.]</p>

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

<p>Case No. 12,354.</p> <p>Maritime Liens — Home Port — Credit op Owner —Costs.</p> <p>1. A vessel was built in Connecticut, and sold to a merchant in New York, the purchase-money to be paid by instalments, and the builders to hold the title until full payment. She went into the possession and control of the purchaser, was documented in the name of the builders, and the port painted on her stern was in Connecticut, and a ship chandler in the city of New York furnished necessaries for her in that port, not knowing of any interest, or possession of the purchaser: Sdd, that he might have a lien as on a foreign vessel.</p> <p>[Cited in Harney v. The Sydney L. Wright, Case No. 6082a; The Jennie B. Gilkey, 19 Fed. 129; Blowers v. One Wire Rope Cable, Id. 448.]</p> <p>2. By the ease of Pratt v. Reed, 19 How. [60 U. S.] 359, a purchaser of supplies necessary to a foreign vessel can assert no lien therefor, unless he prove that they could not have been obtained, without such lien, upon the personal credit of the owner.</p> <p>[Cited in The A. R. Dunlap, Case No. 513; The Lulu, 10 Wall. (77 U. S.) 201.]</p> <p>3. In obedience to this authority, the libel was dismissed; but as the law had previously been otherwise understood and administered here, costs were refused.</p> <p>NOTE. Mr. Justice Story, who was declared by Lord Campbell (2 Story’s Life of Story, 429) to be the first jurist of the age. and whose exhaustive research and thoroughness of learning, especially in admiralty law. have scarcely been equalled, seems never to have heard of the doctrine promulgated in Pratt v. Iteod. In his elaborate judgment in the case of The Fortitude [supra], he laid down the law as to tacit hy-pothecations, in the same manner as did Dr. Luskington, as above quoted. In the same opinion. Judge Story declares that there must be a different necessity, in order to uphold a bottomry bond; that if the money can be obtained upon the credit of the owner, he is not at liberty to subject the ship to the expensive and disadvantageous lien of an hypothecatory i instrument. That most learned and accomplished admiralty lawyer. Judge Ware, in The Phebe [supra], says: “All the contracts of the master, with the mariners for their wages, with material men for repairs and supplies of rigging, or for provisions, or other necessaries for the vessel, involved a tacit hypothecation of the ship and freight.” In what Judges Story. Lushington and Ware have said of resulting liens, they have but followed the common language of the books.</p> <p>SARAH STARR, The. See Cases Nos. 105 and 100.</p>

[Appeal from the district court of the United States for the district of Massachusetts.] The libellants shipped, as mariners, on board of the ship Saratoga, on a voyage from Boston for Amelia Island, at and from thence to port or ports in Europe, and at and from thence to her port of discharge in the United States.

[Appeal from the district court of the United States for the district of Louisiana.] This was an admiralty appeal. The case was this: The cotton was on the plantation of W. H. Gill, the claimant, in Red River county, Texas, who had an agent employed to guard it. In March, 1866, one Turnbull an agent of the treasury, had the cotton seized as captured or abandoned property and, against the protest of Gill, conveyed in wagons to Shreveport, Texas, and there stored.

This was a libel for materials. The libel was filed on the 7th August, 1837, and set forth that the libellant [John F. Sarcliet] was a chain and anchor maker; that on the 8th December, 1S33, he furnished two chain cables for the sloop [General Isaac Davis, Errixson, master], then at Philadelphia; that the price of them, as appeared by the schedule attached to the libel, was $188 15; that he had never obtained payment therefor; and concluding with the usuq.1 prayer for…

Motion to dismiss bill for want of prosecution. In this case after the bill had been filed, an answer was put in, and on October 3.1S7S, a replication. No testimony had been taken prior to the filing of the motion to dismiss. Equity rule 69, Sup. Ct. Rules (Ed. 1866), allows “three months and no more” for taking of testimony after the cause is at issue, unless the time is enlarged on cause shown. Here more than that time has elapsed.

<p>Case No. 12,360.</p> <p>Dedication — Bond to Convey — Proceedings — Statute — Lapse of Time.</p> <p>1. By certain statutes, provision is made for establishing seats of justice in Indiana. Commissioners were appointed, and other officers, who were to receive donations of land, or purchase the same, etc. '</p> <p>2 In establishing the seat of justice for Tippecanoe county, certain proceedings were had, under the law, and a bond was taken from Samuel Sargeant, “to the board of justices of Tippecanoe county,” to convey to them, when they should be organized, certain lots for public purposes.</p> <p>3. The seat of justice being established at Lafayette, in a summary mode provided, suit was brought against the heirs of Sargeant, for a title to the property which their ancestor agreed to convey. A decree of conveyance was entered, and the conveyance, in pursuance thereof, was executed.</p> <p>4. The property thus conveyed has become very valuable, and the heirs have brought an ejectment to recover it, on the ground that the proceedings were illegal and void by which a decree of title was obtained.</p> <p>5. The bond, though it bound the obligor to convey to a board not in esse, is not void or inoperative.</p> <p>6. It is fairly within the statute.</p> <p>7. The court held, that notice was given to the heirs, and this is conclusive in the caso. The fact of notice can not collaterally be denied.</p> <p>8. But the dedication is good at common law, if the statute had not been technically complied with.</p> <p>9. The property thus donated, by improvements has become immensely' valuable.</p> <p>10. And after the lapse of many years enjoyed by the public, the title must be held good.</p>

In equity. This was an application [by James Sargent and others] for a provisional injunction to restrain the defendant [Charles P. Carter] from infringing upon letters patent for “improvement in apple-paring machines,” granted to James Sargent and D. P. Foster, as assignees of Ephraim L. Pratt, October-4, 18S3 [No. 10,078].

<p>[In the matter of Edward Sargent, a bankrupt.]</p>

Assumpsit to recover reasonable compensation for services rendered as a detective on employment by a town agent. The case was tried upon the general issue, and a verdict was rendered for the plaintiff [Moses Sargent], whereupon the defendants moved for a new trial for misdirection by the court.

[This was a bill in equity by James Sargent and others against Pitts A. Lamed and others for tlu> infringement of letters patent No. 10,-078 granted to James Sargent and D. P. Foster, as assignees of Ephraim L. Pratt, October 3, 1853.)

[This was a bill in equity by James Sargent and others against Joseph D. Seagrave.] This was an application for a preliminary injunction, before a trial at law, to protect the exclusive right of the complainants under letters-patent for an improvement in a machine for paring apples, and other vegetables. The letters-patent [No. 10,078] bore date on the fourth day of October, 1853. and this motion was heard on the - day of November, 1855.

<p>Case No. 12,366.</p> <p>Patents — Damages—Reduction or Prices — Title to Recover.</p> <p>1. Reduction of prices and consequent loss of profits, caused to a patentee by the competition of an infringer, is a proper ground for awarding damages against the infringer.</p> <p>2. In this case, on the evidence, it was held, that the reduction of prices by the plaintiff on safe locks containing his patented invention, was directly and solely caused by the defendant’s infringement, after allowing a proper sum for any other patented device contained in the defendant’s locks, and for any other causes which gave to the defendant an advantage in selling his locks.</p> <p>[Cited in Fitch v. Bragg, 16 Fed. 247.]</p> <p>3. The plaintiff, as owner of the patent, was held to be entitled to recover the damages, although he might be accountable to a copartner for a part of them, as the copartner could not sue for them.</p> <p>[NOTE. A final decree was entered for the plaintiff for $7,771 damages and $650.17 costs. The defendant then appealed to the supreme court, where the decree of the circuit court was reversed as to the award of costs, and affirmed in all other respects, with interest until paid. The cause was remanded to the circuit court, with a direction to modify the decree. Each party was to pay his own costs in the supreme court, and one-half of the expense of printing the record. 117 U. S. 536, 6 Sup. Ct. 934.]</p>

[This was a bill in equity by James Sargent against the Yale Lock Manufacturing Company for an injunction to restrain the infringement of letters patent No. 98,622, granted to plaintiff January 4, 1870.]

This was a bill for an injunction to restrain the defendants [Henry S. Woodruff und others] from infringing letters-patent for .an improved buckle, granted to A. H. Cole, October 10, 1865, and of letters-patent for an improvement in buckles, re-issued to one -Tohn W. Mashmyer, assignee of Samuel S. Sargent, dated the 13th day of April, 1873.

[This was a bill in equity by James D. Sar-ven against Elihu Hall & Co.] 2 [Final hearing upon pleadings and proofs. Suit brought on letters patent No. 17,520, for an “improved carriage-wheel,” granted to complainant June 9, 1857; reissued August 11, 18GS; and again reissued September 6, 1S70 (No. 4,116); and extended for seven years from June 9, 1871.

■ [This was a bill in equity by dames D. Sar-ven against Elihu Hall & Co.] 2 [Motion for preliminary injunction. Suit brought on letters patent No. 17,520, for “an improved carriage-wheel,” granted to complainant June 9, 1857, reissued August 11, 1868, and again reissued September 6, 1870, No. 4,116, and extended for seven years from June 9, 1871. The validity of the patent was established in the case of Sarven v. Hall [Case No. 12,309].

Proof of debt by secured creditor. W. A. Saunders, having land standing in the name of his brother, and being deeply in debt, procured his brother to convey the land to A. E. Johonnot and R. E. Demmon in trust to pay certain notes mentioned in a schedule annexed to the deed. One creditor to a considerable amount held several notes not specified in the schedule.

This was an information in the nature of a prize allegation, founded on the second section of the act of August 2d, 1813 (chapter 56).

<p>This was a libel in personam [by Thomas Saunders against Bartholomew Buekup and another] for an assault and battery committed at sea by a master upon his cook, on the 7th of February, 1827, on a voyage from New ■ York to Vera Cruz. The master was cracking nuts upon the quarter-deck with a light hammer, when word was brought to him. that the cook was scuffling with the mate. He ran forward, and discovered, according to the testimony of one of the witnesses, that the cook was overpowering the mate; whereupon he knocked him down with the hammer he had just been using, and which he had still in his hand. The libellant fell immediately, and bled freely from the head, and was, for a few moments, insensible. The wound was said to have been very slight, and he was walking about the deck the same day. The libel was filed on the 6th of October, 1830, against the master and the mate.</p>

<p>Case No. 12,374.</p> <p>Collision — Burden op Proof — Steam and Sail— R ght to Course.</p> <p>1. The general rule in cases of collision is that the vessel proceeding in the cause for indemnification must, in order to obtain a decree in her favor, show, by preponderating evidence, that the other vessel was guilty of negligence or of some misconduct.</p> <p>2. The onus of proof does not lie on the vessel proceeded against, except when a prima facie case of negligence is made out on the other side.</p> <p>3. In the United States, it is the law that steamers meeting a sailing vessel, whether close-hauled or with the wind free, the latter has the right to keep her course, and it is the duty of the steamer to adopt such precautions as will avoid her.</p> <p>4. In England the rule is that if the sailing vessel has the wind free and meets a steamer, each must put the helm aport. With this exception, the rule m the United States and England is the same.</p> <p>5. The rule is clear that when two vessels are nearing each other, and there will be any hazard of striking, without a change of course, and one of them is closehauled and the other has the wind fair, it is the duty of the latter to give way, or avoid or get out of the way of the former.</p> <p>G. General principles in cases where, from the courses of vessels, there is danger of collision.</p>

<p>Case No. 12,376.</p> <p>Internal Revenue — Manufacturer — Merchant Tailor.</p> <p>[A merchant tailor, who makes clothes, exceeding $1,000 per annum in value, to order, for individual customers, although for the use of such customers, and not for resale, is a manufacturer, within the meaning of Act July 1.1862, § 75 (12 Stat. 462), imposing an internal revenue tax of 3 per cent, on manufactures of wool, and under section 64, par. 29, providing that “any person who shall manufacture by hand or machinery and offer for sale any goods, wares and merchandise, exceeding annually the sum of $1,000, shall be regarded as a manufacturer under this act.”]</p>

In admiralty. Benjamin Rush, Esq., solicitor for the British consulate, for respondent, also G. B. Mathew, Esq., British consul. Libel for wages, on the ground of an alleged deviation in the voyage.

In bankruptcy. Application by John J. Suhr for an order directing payment of three judgments in his favor against the bankrupts [Sauthoff and Olson], entered on the 3d day of April, 1876, upon their promissory notes, by virtue of separate warrants of attorney attached to each. The judgments in the aggregate amount to about $3,000.

In bankruptcy. The facts in this case were as follows: Sauthoff and Olson were copart-ners, doing business at Madison, Wisconsin, as dealers in clothing. The copartnership was formed in 1865, and the parties continued in business until January 27, 1876, when Saut-hoff purchased from Olson his interest-in the business, and the firm was dissolved.

<p>Case No. 12,381.</p> <p>Bankruptcy — Provable Debts — Partnership — Joint and Separate Estate.</p> <p>1. Where all the members of one firm are partners in another firm, they cannot prove its debt against the latter.</p> <p>2. Where a bank has discounted drafts drawn by the former firm upon one who is a partner with the members of such firm in the latter firm, it cannot prove its claim thereon against the joint estate, but must look to the separate estate of the drawee.</p>

This was an action [by William Savage against Julia L. D’Wolf, executrix, etc., of James D’Wolf] upon three promissory notes made by the defendant’s testator to the plaintiff, and amounting, with interest, to $34,554-17, tried before Mr. Justice NELSON, at New-York, in Nov’ember, 1847.

Heard on the petition of the mayor and common council of the city of Savannah, for allowance of taxes for the years 1877 and 1878, in property of the Atlantic & Gulf Railroad Company in the city.

<p>Case No. 12,387.</p> <p>Trover and Conversion — Promissory Note— Unauthorized Transfer — Intent.</p> <p>The unauthorized transfer of plaintiff’s property by defendant, though without wrongful intent and before demand, is still a conversion.</p>

This was an action of debt on a bond, in the penalty of 1920 dollars, with condition, that the defendant should deliver to the plaintiff, or his agent or assigns, at the place of embarkation in Brownsville, the quantity of 1920 gallons of good merchantable proof whiskey, in good and tight barrels, in all .the month of May, 1809.

<p>Case No. 12,390.</p> <p>Seamen — Wages — Receipt upon Payment of Less than Amount Due—Nudum Pactum.</p> <p>A mariner having repeatedly asked for his wages without receiving them, and being in a strange land and in great need of money, agreed to take one-thiid the amount due him in full payment, and release the ship and owners, and on payment of one-third the amount due signed a receipt in full-; held, that the agreement to take less than the whole amount due was nudum pactum and the receipt no bar to a recovery for the balance due.</p> <p>[Cited in The City of New Orleans, 33 Fed. 684.]</p>

<p>[This was an action by John P. Sawin and another against John Guild.]</p>

[This was an action by Eleanor Sawtelle, administratrix of Henry H. Sawtelle, against the Railway Passenger Assurance Company of Hartford, for the alleged nonperformance of an insurance contract. Heard on motion for a new trial.]

[In the matter of F. O. Sawyer and John E. Sawyer, bankrupts.] Certificate of facts from Mr. Register Fessenden, touching the refusal of an assignee to set apart to the bankrupts policies of life insurance upon their lives.

In bankruptcy. Petition of [John H. Sawyer] a bankrupt, for discharge, objected to by a creditor for his not having kept proper books ■of account.

A composition offered in this case appeared to be duly accepted, and was recorded; and a few days afterwards a creditor petitioned to have the order for recording vacated, on the ground of fraud newly discovered by him.

This case was tried by a jury at the May . term of the court, and plaintiff came in with an affidavit and asked to have the costs of his witnesses taxed, although his witnesses were not subpoenaed.

<p>In bankruptcy.</p>

[This was a bill in equity by Henry Sawyer against Samuel M. Bixby and Clarence Tucker.] [Final hearing on pleadings and proofs. Suit brought upon reissued letters patent No. 2,769 for an “improvement in putting up powders, etc.,” granted to complainant October 1, 1867. [The original letters patent were granted January 5, 1864 (No. 41,097).] The nature of the invention is sufficiently set forth in the opinion.

This was a bill in equity [by Frederic W. Sawyer against Charles T. Gill], filed November 18th, 1846, with a view to enjoin the defendant against proceeding in another suit to obtain judgment and enforce his attachment of certain goods, seized on mesne process in that action against the firm of Saxton & Huntington. The present plaintiff was assignee of that firm, and in behalf of the creditors, generally, contended that the proceedings in.

On the first of April, 1865, the complainant, Charles B. Sawyer, subscribed for fifty shares of stock of the Lumbermen’s Insurance Company of Chicago.

[This was an appeal by Samuel Oakman and others from a decree of the district court for the district of Massachusetts (Case No. 12.404), in a libel by Charles Sawyer and •others against Samuel Oakman and others, to recover damages sustained by libellants’ boat. The cause was removed into this court from the circuit court for the district aforesaid, pursuant to Act Feb. 28, 1839, § 8 (5 Stat. 322).]

[This was a libel by Charles Sawyer and ■others against Samuel Oakman and others to recover damages for injury to plaintiff’s boat. From a decree in the district court for libelants (Case No. 12,404), respondent appealed to the circuit court, where the decree •of the district court was affirmed (Id. 12,402). An appeal was then taken to the supreme •court, where the decree of the circuit court was affirmed (unreported).

[This was a libel by Charles Sawyer and others against Samuel Oakman and others to recover damages for injury sustained by libellants’ boat.]

This was an action of indebitatus assump-sit, for money had and received by the defendant, to the use of the plaintiffs. The case, with the material parts of the evidence, are stated in the charge.

This was an action of indebitatus assumpsit ■brought by the plaintiffs, the officers of a revenue cutter, against the defendant, the collector at Philadelphia, for money had and received to their use, to recover their proportion of the forfeiture incurred by the Perseverance, for a breach of the non-intercourse law. The jury found a verdict for the plaintiffs, subject to the opinion of the court, upon the question; whether the plaintiffs can join in the action.

[Appeal from the district court of the United States for the district of Massachusetts. [This was an action by Jabez A. Sawyel- and others against Edward Turpin and others. From a decree in the district court for defendants (Case No. 12,410), plaintiffs appeal.]

<p>[This was an action by Samuel A. Sawyer, David L. Wallace, and Thomas Miller against the Switzerland Marine Insurance Company on a policy of insurance. Heard on motion to remand.]</p>

Two bills in equity by the assignee in bankruptcy of J. C. Bacheller, of Lynn, against Novelli & Co., of Manchester, England, and their agent in this country, E. Turpin, alleging that at certain times mentioned, and all within four months before the bankruptcy, Bacheller, being insolvent, made two mortgages of certain lands in Lynn, and a third mortgage of a house standing on leasehold land, and certain transfers of goods of the alleged value of twenty thousand dollars in…

[This was a bill in equity by George G. Saxe and others against A. H. Hammond and others for the infringement of a patent.]

<p>Case No. 12,412.</p> <p>Salvage — Dekelict—Compensation.</p> <p>1. Fourteen men, the crew of a pilot boat, having heard that a schooner had been injured in a collision at sea, set out in search of her, and after cruising some days found her derelict, and succeeded after three days in towing her into New York, expending about $160 in the service. The schooner and her cargo were worth $4,000.</p> <p>2. The court awarded one-half as salvage, and added to it $100 and costs, on account of the libellants having set out to search for and find the wreck.</p>

<p>Case No. 12,413.</p> <p>Customs Duties — Wool Enclosed in Hides — Method or Computing Cost.</p> <p>By the act of March 2, 1867 [14 Stat. 471], certain foreign wools were, upon their importation. to pay a duty of three cents per pound if their value were twelve cents or less at the last port “whence exported to the United States, excluding charges at such port.” Wool of this class cost less than twelve cents per pound in Buenos Ayres, whence it was imported, and was packed in hides which were of precisely the same value as the wool; and the bales were paid for in Buenos Ayres at their gross weight, including the hides, which were an article of value in the market here; hd:l. the appraisers ought not to include the hides in their gross estimate of cost, and then to exclude their weight in ascertaining the cost of the wool per pound.</p>

This was a bill in equity, filed to restrain the defendant from infringing letters patent [No. 9,109], for “improvement in railroad car brakes,” granted to Henry Tanner, assignee of Lafayette F. Thompson and Asahel G. Bachelder, July 6, 1852.

<p>In equity.</p> <p>This was a rehearing of the case of Sayles ■y. Chicago & N. W. R. Co. [Case No. 12,414].</p>

Letters-patent [No'. 9,109] were issued July Cth, 1852, extended July 5th, 1S66, to Henry Tanner, for an improvement in railroad car brakes. The extended term expired July 6th, 1S73. The plaintiff [Thomas Sayles] is Tanner’s assignee.

<p>Case No. 12,418.</p> <p>Pleading in Equity — Plea—Replication — Con-pokations — Service op Writ.</p> <p>The plaintiff must reply to a plea or set it down for hearing on the next rule day, and on his failure to do so the defendant may have the bill dismissed, but if he neglects for a long time to take advantage of it the court will give the plaintiff further time. The Erie Bailway is found within this district so as to give jurisdiction to the United States court.</p>

<p>Case No. 12,419.</p> <p>Writs — Service of Process — Foreign Corporation — Infringement of Patent.</p> <p>Cited in Walk. Pat. 281, to the foregoing proposition. Nowhere reported; opinion not now accessible.]</p> <p>See Wilson Packing Co. v. Hunter [Case No. 37,852].</p>

This was a bill in equity, filed by the complainant [Thomas Sayles] as assignee of James Dundas, to restrain the defendants [Charles H. Hapgood and others], from infringing letters patent for an improvement in cultivators, granted to James Dundas February 8, 1859 [No. 22,859], re-issued October 16, 1866 [No. 2,380].

<p>[This was an action at law by William F. Sayles against the Northwestern Insurance Company on an insurance policy.]</p>

[This was an action at law by William F. Sayles against the Northwestern Insurance Company. For a hearing on a motion to dismiss for want of jurisdiction, see Case No. 12,421.]

<p>[This was an action by Thomas Sayles against the Oregon Central Railway Com-Iiany to recover damages for the infringement of a patent.]</p>

This bill is brought to recover profits against the defendant [the Richmond, Fred-ericksburg & Potomac Railroad Company] from its unauthorized use of the complainant’s improved railroad car-brake (known as Tanner’s brake) for a number of years before the patent expired. The brake was invented by two men, Thompson and Bachel-der, and by them the invention was assigned to Tanner in April, 1852.

In equity. These suits were brought [by William B. Seaife] to restrain an alleged infringement by the defendants [A. Fulton’s Sons & Co. and Sherriffs and Loughrey] of letters patent No. 92,718, granted to George W. Glass, July 20, 1869, for an improvement in ejectors.

<p>Case No. 12,426a.</p> <p>Patents — Boileks—Validitt.</p> <p>Reissue letters patent No. 4.4G7, granted July 11. 1S71, to William B. Scaife. for improvement in boilers for ranges, stoves, &c., declared invalid and void.</p>

This was a petition in bankruptcy, filed by the United States Mortgage Company against Jonathan Young Scammon. On the signing of the amendment of June 22, 1874 [18 Stat 178], the debtor moved to dismiss the petition on the ground that it contained no allegation as to the number and amount of petitioning creditors as required by the amended act.

<p>Case No. 12,428.</p> <p>Bankruptcy — Petition by Single Ckeditor.</p> <p>Since the amendment of June 22, 1874 [18 Stat. 178], a petition by a single creditor will not be sustained, if it appear that he did not have good reason to believe that he constituted the requisite proportion of the creditors; and upon this question affidavits and depositions may be taken, and the debtor should not be required to file a schedule of his creditors, and the petition may be dismissed on motion.</p> <p>[For subsequent proceeding in this litigation, see Case No. 12,429.]</p> <p>NOTE. The absence of the allegation as to number and amount of petitioning creditors in a petition filed by a single creditor is not supplied by the admission of the debtor, even if made in writing, unless the court is satisfied that the admission is made in good faith. In re Keeler [Case No. 7.638].</p>

In bankruptcy. This was an involuntary petition filed by the United States Mortgage Company against Jonathan Young Scammon, prior to the amendment of Juno 22, 1874. Soon after that amendment a rule was entered upon the petitioning creditor to file an amended petition according to the requirements of this amendment [Case No. 12.427].

In equity. Bill by [John Q. Seammon] the assignee of a bankrupt to recover the proceeds of a large quantity of cigars received by the respondent, [Itoseoe L.] Bowers, from the bankrupt, between April 15 and September 28, 1869, in fraud of the bankrupt act [of 1867 (14 Stat. 517)]. Answers were filed, setting up a lawful title to the cigars in Bowers, as purchased under a contract of April 10, 1869.

<p>Bill in equity [by John I. Scammon, as-signee, against Thomas II. Cole and others] praying that the respondents might show cause why certain property and the proceeds thereof should not be adjudged to have been the property of certain bankrupts. Chad-bourne and Nowell, at the time a petition m bankruptcy was tiled against them in the district court. On July 11, 180S, a creditor of the firm of Chadbourne and Nowell of Bid-deford, in this district, filed in the office of the clerk of the district court a petition in bankruptcy against the firm, and on December 2d following they were adjudged bankrupts. Pursuant to the decree the appellee was appointed assignee of the estate of the bankrupts, and a conveyance of all their property was made to him as such assignee by the register in bankruptcy having charge of the case. It was alleged that the debtor on June 17th of the same year, and within four months before the filing of the said petition, being insolvent or in contemplation of insolvency, made a conveyance to the appellants of the personal property described in the bill of complaint, with a view to give to the grantees a preference as creditors of their firm, they, the said appellants, having reasonable cause to believe that the grantors were insolvent, and that such conveyance was made in fraud of the provisions of the bankrupt act. Possession by the appellants of the property conveyed, and demand of the same by the assignee, and their refusal to deliver the same, were also alleged by the complainant, and he prayed that the respondents might be summoned to appear and answer the complaint, and show cause, if any they had, why the property or the proceeds thereof should not be adjudged the property of the bankrupts at the time the said petition was filed, and that the same should.be delivered to the complainant as such as-signee. Service was duly made, and the respondents appeared and filed separate answers. They severally admitted that the bankrupts at the time alleged made a mortgage to them of the goods and chattels specified in the bill of complaint, but they alleged that it was given .for a present consideration, and explicitly denied that the mortgagors, at the time the instrument was executed, had any knowledge that they or either of them were insolvent, and they also denied that the debtors gave The mortgage, or that they, the respondents, took the same with any view to give or to secure to them any preference as creditors of the bankrupts, or to prevent their property from being duly distributed under the bankrupt act. Proofs were taken in the district court, and the cause was heard, and a decree entered that the conveyance made by the bankrupts to the appellants was illegal, fraudulent, and void, and that the cause be referred to a master to take an account of the property received by the respondents. [Case No. 12,433.] Due report was made by the master, specifying the property received by the respondents under the mortgage, and the not proceeds of such portion of the same as they had sold and appropriated to- their own use. Such of the property as remained in their possession timeworn ívquiml. by the final decree of the district court, in deliver to the complainant, and that he should also recover of them, for such portion of tlie property as they had sold, the sum of $956.12, together with costs of suit. Appeal was duly taken by the respondents to this court, and the parties were fully heard upon the merits of the controversy. Certain exceptions were taken to the master’s report, but were not pressed at the argument,' and need not therefore be noticed.</p>

[This was a bill in equity by John I. Scam-mon, assignee, against Thomas H. Cole and others.] Bill by the assignee of Chadbourne & No-well, bankrupts, to set aside a mortgage made by them within four months of their bankruptcy as a preference under section 35 of the bankrupt act. Respondents by answer denied that the mortgage was a preference, but averred that it was given as security for a loan made at the time. The cause was heard upon bill, answer and proofs.

In equity. Bill by [John I. Scammon] an assignee in bankruptcy [against Joseph Hob-son] to set aside a sale of the bankrupt’s property to the respondent as made in fraud of the bankrupt act [of 1807 (14 Stat. 517)]. The cause was heard on bill, answer and proofs. [For prior proceedings in this litigation, see Case No. 10.]

This was a bill in equity by Jonathan Young Scammon, against Mark Kimball, as-signee of the Mutuai Security Insurance Company of Chicago, to set off his claims against the company for losses on policies of insurance, against his liability on unpaid subscriptions to the capital stock of the company, and his indebtedness to the company for money deposited with him, and to enjoin the prosecution of suits at law against him by the assignee.

Action upon an insurance policy for $2,500, dated September 17, 1867. At tbe time of the issuing of the policy, the plaintiff [John Scanlon] was admitted to be the owner of the property insured, but on the 11th of January, 1868, and previous to the fire, he formed a co-partnership with two other parties, and the property insured was put in as partnership assets.

<p>[This was a proceeding by Robert W. Scar-lett against James Van Inwagen and others.]</p>

<p>[In the matter of the application of Samuel Schapter, an assignee, for directions.]</p>

This was a libel, by [Charles H. Scharlock] a mate [against the bark Globe, Ames, master] for wages. It was alleged, in the answer, that, when the cargo of the Globe was landed, at Philadelphia, there were two hogsheads of sugar less than the number required by the invoice; and that the libellant was justly answerable for this deficiency, because of his negligence in keeping the accounts.

Action on the case for infringement of patent. The plaintiff proved that his intestate, Frederick Schaum, was the first and original inventor of certain new and useful improvements in the construction of glass furnaces. for which letters patent were granted to his said intestate on the 25th of April.

The petitioner [James .W. Schaumburg] claimed that he had a legal vested right to the office of first lieutenant in the 1st regiment of dragoons in the service of the United States, to rank from March 1, 1836, and that in violation of his rights and of the law he is kept out of the use, enjoyment, proper service and emoluments and honor of said office.

[Error to the district court of the United States for the Eastern district of Pennsylvania.] [This was an action by the United States against James W. Schaumburg. Upon refusal in the court below to give certain instructions to the jury (case unreported) the defendant brought error.]

<p>[This was a bill in equity by Ann C. H. Schedda and others against Nathaniel Sawyer. Heard on demurrer.]</p>

<p>Case No. 12,445.</p> <p>Bankruptcy — Partnership — Election op As signee — Appointment by Register— Objections — How Made.</p> <p>1. In cases where co-partners are adjudged bankrupts, the partnership creditors only can participate in the election of assignees. The assignees must be elected by the majority in number and value of the creditors who have proved their debts, and not by the greater part of those present and voting. The election of the as-signee, or the appointment by the register in cases where no election is made by the creditors, must be approved by the judge; and until approval the assignee has no power to act.</p> <p>2. As the register can appoint only where there is no opposing interest, no creditor can change his vote after the meeting has adjourned, and thereby cause a failure to elect. If a mistake occurs, or the creditor has good cause to object to the choice made, he can make his objection to the judge, before whom the whole subject will be heard and determined. Where the judge refuses to approve the appointment of the assignee elected by the creditors, he may, under section 13, cl. 4 [of the act of 1807 (14 Stat. 522)]. order a new election by the creditors. The fifth clause, section 18, applies to eases where the assignee has been removed or has resigned, and not to cases where the judge disapproves the action of the creditors.</p> <p>[Cited in Re Wetmore, Case No. 17,466.]</p>

<p>[This was an action by Julius Scheerdt ! against Augustus Schell to recover certain i duties alleged to have been illegally exacted.]</p>

This was a libel for assault and battery [by Frederick Schelter against Henry York and John Hennessey]. The case came on for a hearing, before Judge HOPK1NSON, on the 10th September, 1841.

<p>[In the matter of P. C. Schenck, a bankrupt.]</p>

<p>[This was a libel by Ulysses P. Sehenek and others against the steamboat J. C. Fremont, to recover damages sustained by collision.]</p>

This was an action of assumpsit by Robert C. Schenck, to recover interest due on coupons attached to bonds, issued by the board of supervisors of Marshall county, upon their subscription to the capital stock of the Western Air Line Railroad Company. The defense was, that on February 28, 1853, when the election was held to decide as to whether the count}' should subscribe to the stock of the said corporation, the county was acting under township organization.

This case came before the court upon a demurrer to the cross bill, and a motion on behalf of the plaintiff therein, for an injunction and a receiver.

[This was a hill in equity by Washington L. Schenck against Gordon X. Peay and Calvin G. Bliss, and a cross bill by Gordon N. Peay against Washington L. Schenck and Calvin C. Bliss. The cause was heard upon a demurrer to the cross bill, and a motion on behalf of the plaintiff for an injunction and a receiver. An order was made for the appointment of a receiver and also for an injunction restraining Schenck and Bliss from interfering with the receiver. Case No. 12,-450.

In this case, a. warrant was issued, returnable J uly 20th, 1869. and was on that day returned. with proof of due publication of the notices required, but without any proof of service of notices, and the bankrupts [John F. Schepeler, John D. Schepeler, and Leon Rosenplaenter] appeared, and showed by affidavit that they had been unable to prepare the schedules, and moved for further time to prepare them, which no one opposed, whereupon the register certified the facts to the…

Bill in equity. This bill stated that on the 31st of December, 1790, the defendants, merchants of Amsterdam, had executed to the complainant (who resided at the same place) a power of attorney to receive to his own use, the interest due on 180,000 dollars of certificates of the United States bearing interest at 6 per cent., from the 1st Jan.. 17S8, to the 31st Dec., 1790, amounting to 32,400 dollars; but that, notwithstanding this assignment the defendants on the 16th June.…

<p>[In the matter of Julius Schick, an involuntary bankrupt.]</p>

[This was a bill in equity by John J. Schillinger against Hermann A. Gunther for the infringement of letters patent No. 105,-599, granted to J. J. Schillinger, July 19, 1870; reissued May 2,1871 (No. 4,364). Heard on motion for an attachment.]

[This was a bill in equity by John J. Schil-linger against Hermann A. Gunther for the infringement of letters patent No. 105,599, granted to plaintiff July 19, 1870, reissued May 2, 1871 (No. 4,304). Heard on exceptions to master’s report.]

[This was a bill in equity by John J. Schil-linger against Hermann A. Gunther for the infringement of re-issued, letters patent No. 4,304, granted to plaintiff May 2, 1871, the original letters patent, No. 105,599, having been granted July 19, 1870.]

<p>Case No. 12,459.</p> <p>Bankruptcy — Exempt. Property — Mortgage— Preference.</p> <p>1. An assignee cannot recover property ex-cented by the 14th section of the bankrupt law [of 1SG7 (14 Stat. 522)].</p> <p>' 2. Such property the debtor may lawfully mortgage or convey, and such a preference is not in violation of the act, nor a fraud on it.</p> <p>3. The fact that soon after the conveyance, and before the petition was filed against him. the debtor left the country, does not place the assignee in a better position.</p> <p>In bankruptcy. This was an action by Joseph Sehlitz, assignee in bankruptcy of the estate of Henry Gretz, to recover the amount received by defendant in the sale of two horses which came to his possession from the bankrupt.</p> <p>A bankrupt by a mortgage waives the exemption as against the mortgagee, but not as against the assignee. In re Jones [Case No. 7,445].</p>

<p>This was an action against [Hugh Maxwell] the collector of the port of New York, to recover back an excess of duties, and penalties for undervaluation, paid by the plaintiffs [John Schmaire and others] upon two importations of goods from Liverpool, in the year 1852, one in the Washington and one in the Asia.</p>

<p>Case No. 12,461.</p> <p>Habeas Corpus — Enlistment into Military Service — Fraudulent Representations By Recruiting Officer.</p>

<p>Case No. 12,462.</p> <p>Customs Duties — Act March 3, 1857 — Appeal to Secretart of Treasury — Right of Action against Collector — Illegal Duties Paid under Protest — Evidence of Decision by Secretary — Errors at Trial — Effect of Verdict — Circuit Court — Citizenship of Parties.</p> <p>1. Errors committed, on the trial of an action at law, against the party who obtains a verdict, are merged in the verdict.</p> <p>2. Under section 5 of the act of March 3, 1857 (11 Stat. 195), which provides that, on the entry of any goods, the decision of the collector “as to their liability to duty or exemption therefrom. shall be final and conclusive,” unless the owner shall, within ten days, specify in writing the grounds of his dissatisfaction, and shall, within thirty days, appeal to the secretary of the treasury, and that the decision of the secretary shall be final and conclusive, and the goods “shall be liable to duty, or exempted therefrom, accordingly,” unless suit shall be brought within thirty days after his decision, such appeal is not a condition precedent to a right of action against a collector, to recover back duties illegally exacted by him, where the question is as to the rate or amount of duty, it being conceded that some duty is payable, but the statute applies only to a case where the question is whether the goods are liable to any duty or are wholly exempt from duty.</p> <p>3. Whether, under said statute, a suit can be brought, where the secretary of the treasury unreasonably neglects to make and communicate a decision on an appeal, quere.</p> <p>4. Under the act of February 26, 1845 (5 Stat. 727), a collector who demands and receives illegal duties, which are paid to him under protest, is liable in an action of assumpsit for the amounts thus collected by him.</p> <p>5. Under the act of 1857. an appeal was taken to the secretary of the treasury from the decision of a collector as to the rate and amount of duties. On the trial of a suit against the collector to recover back the duties, the plaintiff gave evidence tending to show that he was justified in considering his appeal as having been decided against him, but the court directed a verdict for the defendant. Held, that the question as to whether there was evidence of a decision by the secretary upon the appeal, ought to have been submitted to the jury;</p> <p>6. Where, in June, 1863, the same precise question had been decided by the secretary, on appeal, against the plaintiff, and the secretary had published a circular to that effect, and, in September and October, 1863, the plaintiff presented the same question to the secretary, on appeal, and, up to January, 1866. be had made no response, 'the plaintiff was justified in considering his appeal as having been decided against him.</p> <p>7. An action against a collector of customs, to recover back money paid as duties, and alleged to have been illegally exacted, can be brought in tile circuit court, although the parties are residents of the same state.</p>

<p>[This was a libel by John W. Schmidt and others against the bark George Niebolaus and her cargo upon a bottomry bond.]</p> <p>The libel in this case was filed to recover the amount of a bottomry bond, executed by the master of the bark George Nicholaus upon the bark, her freight and cargo. The bark, which was owned in Hamburg, was bound from a port in the Pacific ocean, with a cargo of guano, owned by. others than the owners of the bark, to Hampton Roads for orders, and thence to some other port of the United States to discharge. In March, 1852, she put into Rio Janeiro in distress, and a survey being held, the needed repairs and supplies to enable her to prosecute her voyage and deliver her cargo were ordered. The master of the bark had' no funds to procure such repairs and supplies, and could not procure them either on his own credit, or on the personal credit of the owners of the bark. He therefore wished to raise money upon bot-tomry, and accordingly advertised for terms, but could only obtain the needed funds by a hypothecation of the bark, her freight and cargo, and at the rate of interest named in the bond. The funds were accordingly advanced by Messrs. Farrand & Wilmer, merchants at Rio, to the amount of $3,917.74, which was expended in the necessary repairs of the bark, and a bottomry bond duly executed to them by the master, purporting to bind the bark, her freight and cargo, for the payment, five days after the arrival of the bark at her port of discharge, of the said principal, and $940.26 premium, — amounting to $4,S5S. The bark afterwards pursued her voyage to Hampton Roads, and thence to the port of New-York to discharge. Upon her arrival here she was libeled for seamen’s wages, and sold for an amount little more than enough to satisfy the seamen’s claim. The present libel was filed by the libelants, who have become the assignees of the bot-tomry bond, against the bark, her freight and cargo, to recover the amount due. The balance of the proceeds of the bark and the freight are not sufficient to pay it, and the libelants are without adequate remedy unless they can resort to the cargo. The owners of the bark do not contest the right of the libelants to the proceeds of the bark and to her freight. But the owners of the cargo insist that the cargo is not holden for the libelant’s claim; that no state of facts existed at Rio Janeiro which authorized the master of the bark to bind even the vessel by a bottomry bond: and that there was no necessity for his hypothecating the cargo, because there were several freighting vessels at Rio bound for the United States, in which case i1 was the master’s duty to have transhipped the cargo, and therefore he had no right to hypothecate it.</p>

This was a libel filed by Schmidt, the holder of a bill of lading for goatskins. which on arrival of the vessel, the steamship Pennsylvania, at Philadelphia, he presented to the ship's agent, and delivery of which was refused pursuant to a cable telegram from the shippers.

<p>Case No. 12,466.</p> <p>Charteb Pakty — Net Measurement of Steamer —Cakoo Space Occupied by Coal.</p> <p>1. The owners of a steamer chartered her in London to S.. for a voyage from New Y'ork to the United Kingdom or Europe, by a charter party which described the vessel as “of the net measurement of 537 tons, or thereabouts.” On the arrival of the vessel in New Y’ork, the agent of S. made a writTen agreement with S. & D., whereby he chartered the vessel to them for a voyage from New York to Europe, for £1,500, for a full and complete cargo of lawful merchandise, the difference between the £1,500 and the amount of freight on the bills of lading to be settled before sailing. The agreement, after specifying certain conditions as to the loading of the vessel, added: “All other conditions ■as per charter party, dated London. &c.” This charter party was known to S. & D. when .they made the agreement with the agent of S. When the vessel came to be loaded, it appeared that she had on board, in a part of the space which was properly for cargo, a quantity of coal weighing 200 tons, and occupying as much space as would be occupied by 150 tons in measurement of such general cargo as S. & D. put on board the vessel; and, when S. & D. had put on board cargo till the vessel was so deep that the master refused to take any more, there still remained space for 50 tons more. She sailed with a cargo of 468 tons in measurement; and, but for the carrying of the coal above spoken of, she could have carried 668 tons. A vessel can -generally carry 25 per cent, of tons by measurement more than what is stated in her register as her “net measurement,” which, for this vessel, would have made 671 tons. S. •& D. filed a libel against S., to recover damages for breach of the agreement made between them, claiming to recover, as such damages, the difference between the freight earned on the goods actually received on board, and that which the vessel would have earned but for her having that cargo space filled with coal. Held, That the agreement between S. & D. and S. was a charter of the vessel.</p> <p>2. Under this contract, S. & D. were entitled to have, for their £1.500, the space of a net measurement of 037 tons for cargo; and unless they were allowed to have it, S. did not perform his covenant, that they should be allowed to carry a full and complete cargo, notwithstanding a clause in the charter, that the cargo should not exceed what the vessel “can reasonably stow and carry over and above her tackle, apparel, provisions and furniture.”</p> <p>3. S. & D., therefore, were entitled to recover the difference between the freight actually earned, and that which would have been earned if such covenant'had been fully performed.</p>

<p>Case No. 12,468.</p> <p>I Internal Revenue — Tax on Matches — Action to Recover Back — Validity of Assessment — Burden of Proof.</p> <p>[1. The payment of a tax, assessed upon manufactured articles by the commissioner of internal revenue, under protest is not a voluntary payment, and if the owner of the goods appeals. to the commissioner, as provided by law. and he decides against him, an action may then be brought to recover back the amount of the tax.]</p> <p>[2. It is the duty of a manufacturer of matches to see that no box contains more matches than the number indicated by the internal revenue stamp placed thereon, and if some of them do overrun, the commissioner may assess an additional tar thereon, notwithstanding that other boxes of the same lot fall short, so that in the aggregate there is no excess.]</p> <p>[3. An assessment by the commissioner of internal revenue is prima facie valid, and where he has assessed a certain lot of matches in boxes on the ground that the boxes contain an excessive number of matches, and it appears that some of the boxes did overrun, it will be presumed that all the boxes overran, and the burden is upon the complaining taxpayer to show what boxes did not overrun.]</p>

The bark Superb was seized upon process issuing in various actions, and sold under an order of this court, made October. 1850. and the proceeds paid into court. The libelants, Schmidt & Balchen. filed therein libel for advances and supplies made to the vessel on the 15th of September. 1850, and on the 10th of May, 1S52, obtained a decree in their favor.

[This was a bill in equity by Bennett B. Schneider against Franklin D. Jackson for an injunction and accounting. The bill charged the infringement of reissued letters patent No. 7,511, granted to Carl Yotti, February 13, 1877, the original letters patent, No. 182,973, having been granted October 3,187G.)

This was an action brought in the supreme court of New York, to recover back duties imposed by [Cornelius W. Lawrence] the collector of the port of New York on an importation of rocoa. The case was removed into this could; by certiorari.

<p>Case No. 12,470a.</p> <p>Patents — LampSuades—Specifications—Public Use.</p> <p>1. The claim of the patent being, “In a lamp having a burner, the combination of a shade holder made of material that will admit of the passage of light, and a shade or globe, arranged and constructed substantially as described. whereby the burner performs the required functions without the use of a chimney, as set forth,” and no description whatever of the shade to be used being given, either in the claim or the specification, and it appearing that one well-known form of lamp shade would not, if used in the combination, produce the result claimed, and that the state of the art limited the complainant’s patent to the method shown by him of combining certain forms of shade, shade holder, and burner, in such a manner as to enable the chimney to be dispensed with, hrhJ, that the patent did not describe the invention in the full, clear, and exact terms required by the statute, and was therefore void.</p> <p>2. Eight years before applying for a patent, the inventor voluntarily, and for a consideration. made and sold, without reserve, a device embodying his invention to a third party: intending the same to be publicly used by him, and it was so used. Held, that these facts show a public use which invalidates the patent.</p> <p>[NOTE!. An action between the same parties. brought to establish the validity of re-issued letters patent No. 7,511, and also of letters patent No. 191.224, will be found reported in 3 Fed. 95. E'or other cases involving this patent, see note to Case No. 12,469.]</p>

[This was a bill in equity by Bennett V. Schneider against Francis Thill, for the infringement of reissued letters patent No. 7.-511, granted to Carl Votti February 13, 1877, the original letters patent, No. 182,973, having been granted October 3, 1876.]

This was an application to set aside an injunction heretofore granted. The bankrupt [Francis Schnepf] filed his papers on the 9th of October, 1807, and was declared a bankrupt, and procured an injunction prohibiting ■creditors named Camme.ver & Mason from enforcing a levy, which the sheriff had made upon Schnepf’s property under a judgment against him which they had obtained in a ■state court. They now moved to set aside that injunction.

This was the sixth term since the action was instituted. The plaintiff, at last term, had leave to amend, by changing his action from debt to case, and laid a rule on the defendant to plead by the plea-day. now pleads non assumpsit, and moves for a continuance, the cause not having been at issue at the last term.

<p>Case No. 12,473.</p> <p>BANKHUPTCY— PltEFEItENCE— LIMIT OF TIME IN Making — Knowledge of Insolvency— SmtltENDEK OP PltEFEItENCE.</p> <p>1. The limitation within which a preference may be set aside is four months in voluntary and two months in involuntary cases.</p> <p>2. A part}' who receives a preference* with knowledge of his debtor’s insolvency and that a fraud on the act is intended, can prove but a moiety of his debt in either class of cases.</p> <p>3. But where he voluntarily restores to the assignee the preference which he has received, and there is no actual but only a constructive fraud, he will be allowed to share pro rata with the other creditors.</p> <p>NOTE. On the 27th of February. 1877, and before the expiration of the time limited by general order 84. for forming an issue to be" certified to the court for determination, the claimant filed a petition expressing his acquiescence in the foregoing opinion, and voluntarily offering to restore to the assignee the preference which he had received. Whereupon, there being no actual but only a constructive fraud, I directed the assignee to receive the same, with interest from April 1, 1870. and that the penalty imposed upon the claimant be remitted, and that he be allowed to share in common with the other general creditors in all dividends declared or to be declared. Flamen Ball, Register.</p>

These were 45 actions of debt on policies of fire insurance, brought by William Schollen-berger & Son, citizens of Pennsylvania, against the defendants, who were, respectively, corporations incorporated either by the parliament of Great Britain or by states other than Pennsylvania.

Motions for judgment non obstante veredic-to, on point reserved, and for new trial. Debt on a policy of fire insurance. The contract was made between the plaintiff and the company, acting by their local agents in Philadelphia. covering property in Philadelphia. After the service of the writ upon the local agents, a general appearance of the company’s counsel was entered, and subsequently leave was asked by the defendants to withdraw their ■counsel’s appearance.

<p>Case No. 12,477.</p> <p>Bankruptcy — Examination op Bankrupt’s Wipe —Counsel—Withholding Documentary Evidence.</p> <p>A bankrupt's wife, summoned as a witness-before the register, and required to produce a letter from her half-brother accompanying a gift of money with which a house contracted for by her husband was partly paid for. refused, by advice of the bankrupt’s counsel, to produce it. Held, that the witness was not entitled to-Imre counsel, nor had the bankrupt’s counsel a right to advise her to withhold such documentary evidence bearing on the subject of her examination: that the witness must produce the document: and that, the assignee might examine her as to all the facts to which it related.</p>

This is a bill in equity to set aside a judgment heretofore obtained in this court against the complainant, the district township of Newton, in Carroll county by the defendant [James Lombard], on account of the fraud of the officers of the township in issuing the warrants, and suffering judgment to be rendered thereon. Knowledge of these frauds is charged upon the agent of the defendant, who purchased the warrants and procured the judgment.

<p>[This was a bill by Martin Schrenkeisen, as-signee in bankruptcy of Alexander Stein, against John Miller.l</p>

<p>Case No. 12,481.</p> <p>Internal Revenue — Manufacturers of Bone— Bone Bi.ack — Charcoal.</p> <p>1. Animal charcoal or hone black, produced by the process of burning bone, or exposing it to the action of fire, in the same manner that wood is exposed to the action of fire, to produce vegetable charcoal, and bone dust, produced by the process of pulverizing or grinding bones or pieces of bone, whereby they are reduced to small fragments of no regular or uniform shape or size, are ‘‘manufactures of bone,” within the description of an internal revenue act taxing “manufactures of bone.”</p> <p>[Followed in Peters v. Robertson, 20 Fed. 819; Cited in Harrison v. Merritt, 23 Fed. 654; Erhard t v. Hahn, 5 C. C. A. 99, 55 Fed. 275.]</p> <p>[Cited in Attorney General v. Belle Isle Ice Co., 59 Mich. 164. 26 N. W. 313; Carlin v. Western Assur. Co., 57 Md. 520.]</p> <p>2. The exemption of “charcoal,” by such an act, from taxation, does not exempt animal charcoal or bone black, produced in the manner above stated.</p> <p>[3. Cited in Equitable Life Ins. Co. v. Gleason. 56 Iowa, 49, 8 N. W. 791, to the point that, in the interpretation of statutes, words of common use are to be taken in their natural, plain, and ordinary signification.]</p>

[The French composer, Waldteufel, in about ' 1S72, published the “Manola Suite de Vaises pour Piano.” About three years after this-j the complainants. Edward Schuberth & Co.. ¡ employed J. M. Lauder, a musical composer. ' to make a new arrangement of the piece. I This Mr. Lauder did, altering and simplifying ' the harmony, and in some cases altering the melody. He abridged the length of the introduction of the waltz and also the coda.

<p>[In the matter of Frederick Schuehardt and Lawrence Wells, bankrupts.]</p>

The libelants [Frederick Schuehardt and Frederick C. Gebhard] sold the ship Angelique May 7, 1853, and, in part payment of the purchase money, took from the purchaser his promissory note for $5,000, payable in six months, with a mortgage of the same date, on the moiety of the ship, to secure the payment of the note.

In admiralty. The ship was first attached, by process sued out of this court by material men, on the 27th day of July last, and was sold by decree of the court on the 31st day of August, 1853. The proceeds have been deposited in court to await the disposal of the numerous actions pending against them of the ship.

<p>Case No. 12,483c.</p> <p>Maritime Liens — Priority—Mortgages.</p> <p>[1. Mortgage liens in admiraltv have no superiority over subsequently created maritime liens.]</p> <p>[2. Maritime liens are to bo satisfied, as a general rule, in the order of the commencement of the suits in admiralty.]</p>

This was an action [by Frederick Schuch-ardt and another] against [Cornelius W. Lawrence] the collector of the port of New York, to recover back an excess of duties paid by the plaintiffs on sundry importations of gin.

In this matter, as will be recollected, some fifty or sixty libels were filed by material men, passengers, and others against the vessel, and decrees entered in many of them against her. The vessel was sold, and the proceeds brought into court. A libel was then filed by Sehuch-ardt and Gebhard against one-half of the proceeds, claiming to be entitled to the same as mortgagees of one-half of the vessel, in preference to all others.

This suit was brought [by Charles Schuess-ler against Charles H. Davis] for infringement of reissued patent No. 7,129, originally granted to It. Meyer, for “improved buckle fastenings.” January 19, 1867, and assigned to complainant. [The original letters patent, No. 61,628, were granted January 29, 1867.] The defendant claims to manufacture under patent originally granted him September 21, 1869, and reissued March 7, 1876, No. 6,974.

<p>This was replevin for a large quantity , of saw-logs, and is one of many similar cases pending in the court. The plaintiffs [Frederick Schulenburg, Adolf Boeckeler and Louis Hospes] cut the logs upon odd sections of the lands granted by congress “to the state of Wisconsin to aid in the construction of railroads in said state,” by act approved June 3, 1850 (11 Stat. 20). This act provided “that the land hereby granted shall be exclusively applied in the construction of the railroad for which it is granted and selected, and shall be disposed of only as the work progresses, and shall be applied to no other purpose whatsoever.” “That the said lands hereby granted to the state shall be subject to the disposal of the legislature thereof for the purposes aforesaid, and no other;” and “shall be disposed of by said state only in the manner following — that is to say, a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of road, may be sold; and when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of said road are completed, then another like quantity of land hereby granted may be sold; and so, from- time to time until said road is completed; and if said road is not completed within ten years, no further sales shall be made, and the land unsold shall revert to the United States.” On the 5th day of May, 1804, congress “extended” the above act of June 3, 1850, “to a period of five years from and after the passage of this act,” May 5, 1804 (13 Stat. 00). On the 10th day of March, 1869, the legislature of the state of Wisconsin passed an act of which the nineteenth section is as follows: “For the purpose of aiding in the construction of the railway hereby incorporated, the state of Wisconsin hereby grants and transfers unto the said company all the rights, title, interest, and estate, legal or equitable, now owned by the state in and to the lands heretofore conditionally granted to the Saint Croix & Lake Superior Railroad Company for the construction of a railroad and branches; and the said state of Wisconsin docs further grant, transfer, and convey unto the said railway company hereby incorporated the possession, right, title, interest, and estate, which the said state of Wisconsin may now have or shall hereafter acquire of, in, or to any lands through gift, grant, or transfer from the United States, or by any act of the congress of the United States amending ‘An act granting a portion of the public lands to the state of Wisconsin to aid in the construction of a railroad, approved June 3, 1856,’ and the act or acts amendatory thereof, or by any future acts of the congress of the United States granting lands to the state of Wisconsin, so far as the same may apply to and in the construction of a railroad from Bayfield, in the county of Bayfield, in a southwesterly direction, to the intersection of the main line of the Northern Wisconsin Railway, from the lake or river Saint Croix to Superior, to have and to hold such lands, and the use, possession, and fee in the same, upon the express condition to construct the herein described railway within the several terms and spaces of time set forth and specified in the next preceding section of this act; and upon the construction and completion of every twenty miles of said railway, the said company shall acquire the fee simple absolute in and to all that portion of the lands granted to this state, in any of the ways hereinbefore described, by the congress of the United States, appertaining to that portion of the railway so constructed and completed.” Laws Wis. 1869, p. 972. The said railroad, nor any part thereof, has not been constructed by the said railway company; and congress has passed no act since May 5, 1861, above-mentioned, extending the time for building the road beyond May 5, 1S69; nor has it passed an act declaring a forfeiture of the rights of the state under the said acts of June 3,1856, and May 5,1864, or declaring that the lands had reverted to the United States by reason of the failure to complete the railroad by the 5th day of May, 1869. The legislature of Wisconsin passed an act to protect these lands from trespassers. The defendant, Samuel Harriman. is the agent of the state of Wisconsin, duly appointed and commissioned, and as such seized logs which had been cut by the plaintiff in 1870 upon said railroad lands; and thereupon the plaintiff brought this action of replevin. The defendant claimed that the legal title to the logs was in the state of- Wisconsin. The plaintiffs claimed: (1) That the state of Wisconsin had no title to the logs, because the title to the lands from which they came had, before the logs were cut, reverted to the United States; and (2} if the lands had not thus reverted, that the title thereto was in the said railroad company by virtue of the ¡ above-mentioned act of the state legislature of the 10th day of March, 1S69.</p>

Writ of error to the district court of the United States for the Eastern district of Missouri. The action was one by the assignee [Rudolph Schulenburg], under section 35 of the bankrupt act, to recover the value of property alleged to have been fraudulently sold by the bankrupt to the defendants, Conrad Keh-ler and George Kabureck.

<p>[This was a libel by Alexander H. Schultz •against Edward Bosnian, owner of a domestic vessel, for supplies purchased by the master.]</p>

<p>Case No. 12,489.</p> <p>Bankruptcy — Mortgage to Secure Future Advances — Correction of Mistake.</p> <p>1. A mortgage to secure future advances is good as against the assignee in bankruptcy for the amount of advances actually made thereon.</p> <p>2. A mistake in the description of the premises in such mortgage may be corrected us against the assignee to the same extent as would have been allowed against the mortgagor.</p>

The plaintiff [Elizabeth F. Schumacher] in the above cause sued upon a policy of insurance for the sum of $2,000, issued by defendant May 13. 1866, upon the fife of her husband, who died in December, 1871.

<p>In bankruptcy.</p>

The Nancy, on her passage from Martinique to St Kitt’s sprung a leak, which being considerable, and one of the pumps being rendered useless, the crew agreed to stand for the first port Four days after this, they threw overboard part of the cargo; in ten days more, made the land, and sent on shore for a pilot.

<p>Case No. 12,492.</p> <p>Towage—Loss of Bahge—Negligence.</p>

In this case, the discharge of the bankrupt [Spencer D. Schuyler] was opposed on the ground that he, on the 7th of December, 1867, made a voluntary assignment of all his property, for the benefit of all his creditors, to Joseph Wescott; that he was insolvent at the time; and that he made such assignment with a view to prevent such property from coming to his assignee in bankruptcy, and from being distributed under the bankruptcy act, and to defeat the object of that act, and…

1[This was an action [by Samuel Schuyler] brought to recover $41,000, being the damages arising out of collision which happened in this port on the 9th of November, 1865, between the steamer America and the steamer Corsica. The Corsica was, at the time, proceeding down the North river, bound to sea. The America was below her and proceeding across the river from off the Battery to her pier at the foot of Sussex street, Jersey City.

<p>Case No. 12,497.</p> <p>Internal Revenue — Bonded Indebtedness of Corporation — Imposition of New Tax.</p> <p>1. The act of congress of July 14, 1870 [16 Stat. 256], re-enacts the sections of the act of 1864 [13 Stat. 223], in reference to the tax of 5 per cent, on the amount of interest upon a corporation’s bonded indebtedness.</p> <p>2. Congress has the right to impose a tax by a new statute, although the measure of the tax is governed by the income of the past year.</p>

[The defendant, General New'ton, is a colonel of engineers in the United States army, and has been detailed by the secretary of war to improve the navigation of the Hudson river. The complainant’s bill charges that General Newton proposes to build a dike across the east channel of the Hudson river, between Barren Island and New Baltimore, a portion of the river about fourteen miles below Albany, to the great and irreparable injury of the navigation of the river at that point.

<p>[In the matter of Julius Schwab, a bankrupt.]</p> <p>This was an application on the part of the petitioning creditors, in a ease of involuntary bankruptcy, for an order directing the as-signee to pay to them out of the assets the amount of their reasonable expenses incurred in procuring the adjudication of bankruptcy, and preventing the disposition of the property by proceedings in the state tribunals before the appointment of an assignee in bankruptcy. The petitioners filed their petition and procured a warrant to the marshal, and prior to the adjudication and to the appointment of the assignee, procured injunctions staying the proceedings in six actions brought against the bankrupt in the state courts, in which attachments had been issued, and levied upon the property of the bankrupt. The result of this action on the part of the petitioners was an adjudication of bankruptcy without opposition, and the securing for equal distribution of property valued at some thousands of dollars, which the assignee reduced to possession, and was about to distribute. The petitioning creditors now asked to be paid out of the assets their reasonable expenses of the proceedings taken by them.</p>

<p>Case No. 12,501.</p> <p>Writs — Original Process — By Whom Served— Service by Private Person.</p> <p>1. Since the act of June 1, 1872 (17 Stat 196), as well as before, original process directed to the marshal must be served by that officer or his deputy, and cannot be served by a private person, although such mode of service as respects process in the state courts, may be authorized.</p> <p>[Cited in Republican Val. R. Co. v. Sayre. 13 Neb. 282, 13 N. W. 404.)</p> <p>2. Subpoenas and notices directed to a witness or party need not, necessarily, be served by tibe marshal.</p> <p>NOTE. Service of process is a “mode of proceeding” within the meaning of the act of June 1, 1872. and being so, the mode of service (not the officer by whom made) prescribed by the state law must be followed, and the power of the federal court to prescribe or substitute any other mode is necessarily abrogated. So held by the United States circuit court, for the Eastern district of Wisconsin, by Mr. Justice Davis and Mr. District Judge Hopkins. Perkins v. Watertown [Case No. 10,991.]</p> <p>Construction of above act as respects service by publication. Bronson v. Iveokuk [Case No. 1,928].</p>

<p>[In the matter of Jacob Schwab and Daniel Deutsch, bankrupts.]</p>

<p>Case No. 12,502.</p> <p>Bankruptcy — Right op Creditor to Prosecute Claim — Discharge—Provable Debt.</p> <p>1. Section 5106 of the Revised Statutes, which enacts that no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit therefor against the bankrupt, until the question of his discharge shall have been determined, applies to all provable debts, as well to those which, under section 5117, would not be discharged, as to others.</p> <p>[Cited in Re Cohen, Case No. 2,961; Re Van Burén. Id. 16.833; Re Alsberg. Id. 261; Re Schwarz, 14 Fed. 788.]</p> <p>[Cited in Brooks v. Bates (Colo. Sup.) 4 Pac. 1,072.]</p> <p>2. A claim arising out of a contract for the purchase and sale of merchandise is a provable debt, within § 5106, although the sale was made because of a false representation by the debtor as to his pecuniary affairs, and the prosecution of such claim may be enjoined, under § 51Ó6, if it be prosecuted in an action sounding in damages.</p> <p>LCited in Re Pitts. Case No. 11,190; Re Van Burén, Id. 16.833.]</p> <p>[In review of the action of the district court of the United States for the Southern district of New York.’</p>

By HIRAM GRISWOLD, Register: It is admitted and agreed that at the time of the filing of the petition in bankruptcy, M. F. Schwartz, the bankrupt, was a citizen of the state of Kansas, and-was and had been domiciled in Kansas for more than one year previous thereto. That he was the head of a family. That he was a retail merchant of dry goods, clothing, hats, caps, boots, and shoes in Wyandotte, Wyandotte county, in said state.

Policy on the ship Margaret, at and from Batavia to Baltimore, dated January 19th, 1807; valued at 25,000 dollars, of which 20,-000 dollars were underwritten — warranted American property, proof to be made at Baltimore only. The order for insurance mentioned, that the outward cargo of this vessel had consisted of goods contraband of war.

Action for a return of premium, paid on a policy effected on the cargo of the Margaret, 20th of January, 1807, at and from Batavia to Baltimore, at 7% per cent.-, valued at 15.000 dollars; the coffee valued at thirty-four dollars per picul, the sugar fifteen dollars, and the pepper at twenty dollars. This is the same voyage as that mentioned in the case of the same plaintiffs against the Insurance Company of North America [Case No. 12,504], and the same evidence was given.

This was a motion, under section 14 of the act of 1836, to treble the damages found by the jury in an action, on the case, for the infringement of letters patent [No. 41232] for a new and useful improvement in grain separators, granted to John W. Free and Harrison Ogborn, January 12, 1864, and assigned to plaintiff [John Schwarzel], for the counties of Ross, Pike, Pickaway, Scioto, and Fay-ette, in the state of Ohio.

This was a case of collision occurring in the harbor of Portland, between the Scioto, as she was entering the harbor, and the Falcon lying at anchor.

<p>Case No. 12,509.</p> <p>Bankruptcy — Partnership—Failure op One to File Schedule — Discharges.</p> <p>Where a member of a bankrupt firm had failed to file schedule of his personal property, held, the other members would not, on that account, be refused a discharge.</p>

<p>Objections to proof of debt.</p>

<p>By JAMES.F. DWIGHT, Register:</p> <p>In the course of the proceedings before me, arose' a question pertinent to the proceedings, which was stated by the counsel on both sides, as appears by the papers hereto attached, which is referred to the court for decision, under section 4 of the act [of 1867 (14 Stat. 519)]. On the 18th of May, by order of the court, a reference was made to the register “to take and certify to the court, with all convenient speed, all such testimony as shall be offered before him on the part of either the said Demetrius G. Scofield, Samuel L. Scofield or John M. Moorhead, upon the issues raised,” in a petition of D. G. Scofield asking for adjudication in bankruptcy of himself and his firm consisting of others, Samuel L. Scofield and John M. Moorhead. John M. Moorhead denies the bankruptcy of the firm, and obtains a reference to take the testimony as aforesaid. Under the order, D. G. Scofield is examined by his own calling, and Moorhead cross-examines. Scofield’s attorney claims that he is responsible only for the register’s fees on the direct examination of his own witnesses, and Moorhead’s attorney claims that Sco-field is responsible for not only the register’s fees in the examination of his own witnesses, but their cross-examination, and also primarily for all witnesses called by Moor-head, the contesting party, and their points are stated and hereto attached.</p> <p>In my opinion Scofield is responsible only for the fees on the direct examination of his own witnesses. Each party the same, and either party is responsible for all time occu: pied in examining witnesses for their benefit, whether direct or cross. Which is respectfully submitted.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in rem, filed in the district court, by the owners of the schooner E. H. Parker, against the steamer Scotia, to recover damages for injuries sustained by the schooner, in a collision which took place between her and the Scotia, on the morning of the 20th of November, 1862, between five and six o’clock, in the lower bay of the city of New York, about a mile south of…

.[Appeal from the district court of the United States for the Southern district of New York.] This was a libel filed in the district… Held: that the collision might have been avoided If the helm of the Pet had been ported, -for which there was ample time; that, by the British act, the Pet was required to port; that, but for that act, the Pet would have been justified in keeping her course and in not porting; and that no circumstances were shown to render a departure from…

<p>Case No. 12,515.</p> <p>Salvase Service — Compensation.</p> <p>[Three vessels, with 35 men, were engaged four days in lightening and getting a vessel off the Florida Reef, and, but for the assistance rendered, both vessel and cargo would have been a total loss. The vessel was sold for $1,-616.30, and the cargo was invoiced at $10,000. Held, that 45 per cent, of the net value was. reasonable salvage.]</p>

<p>Case No. 12,514.</p> <p>Prize — Blockade—False Papers.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade, and because the papers of the vessel were false as to her destination.</p> <p>[A claim was made by the Housatonic, the Flambeau, the Flag and the Restless, four vessels which assisted in the capture of the Scotia, to participate in the proceeds of the prize. The claims were disallowed. Case No. 391.]</p>

Exceptions to the report of a commissioner in bankruptcy. In 1867, Dwight Scott was the sole owner of two propellers, the S. D. Caldwell !and the Ironsides. In June, 1868, both vessels were libeled, at Cleveland, for debts which were liens; and they were sold by order of the district court. Previous to the sale of them, Scott filed a petition in bankruptcy and was adjudged a bankrupt.

At Detroit, in said district, on the 7th day of November, A. D. 1870, before Hovey K. Clarke, register in bankruptcy.

<p>Case No. 12,619.</p> <p>Bankruptcy — Composition Meetino — Who mat Vote — Objections to Resolution — Best Interest of All — Attorney for Creditor.</p> <p>1. A creditor who has an attachment issued within four months before the commencement of proceedings in bankruptcy cannot vote at a composition meeting.</p> <p>[Cited in Re Shields, Case No. 12,784.]</p> <p>2. An order referring a proposition of compromise to a register should' require him to report whether the resolution of composition is duly passed at the first meeting, whether it has been confirmed by the required signatures, and whether the terms of the composition are for the best interests of all concerned.</p> <p>[Cited in Litchfield v. Johnson, Case No. 8,-387; Re Jacobs, Id. 7,159.]</p> <p>3. No second meeting of creditors, as such, is necessary to be held to confirm the resolution of composition.</p> <p>4. At the hearing for the ratification of the resolution, objections can be presented as to the due passing of the resolution, as to the confirmatory signatures, and as to what is for the best interest of all concerned.</p> <p>[Cited in Parwell v. Raddin, 129 Mass. 8.]</p> <p>5. None but unsecured creditors can object to the ratification of a resolution.</p> <p>6. A resolution cannot be defeated on the mere ground that by the defeat some peculiar benefit may accrue to the objecting creditor.</p> <p>7. The debtor is not required to appear at the hearing for a ratification, or submit any statements.</p> <p>8. The statute does not contemplate that the confirmatory signatures must necessarily be attached at the first meeting.</p> <p>9. The confirmatory signatures must be attached at or before the hearing for a ratification.</p> <p>[Cited in Home Nat. Bank v. Carpenter, 129 Mass. 4.]</p> <p>10. The meeting for the purpose of adding to or varying the original proposition is one to follow the confirmation and recording thereof.</p> <p>11. An advance in the percentage is demonstrative of the fact that the original proposition is not for the best interest of all concerned.</p> <p>12. Creditors must prove their claims in order to vote on a resolution of composition.</p> <p>13. In involuntary proceedings the petitioning creditors on whose motion an order to show cause has been issued need not prove their debts anew.</p> <p>14. The register is an officer of the court, and must take judicial notice of its judgments and decrees.</p> <p>15. When an attorney at law appears before a register to represent a person, he is to be accepted as such attorney unless some one puts him to proof, by a rule therefor, to show his authority. 1</p> <p>16. Tf a person who is not an attorney at law desires to represent another before a register, he must show a formal power of attorney.</p> <p>17. If a telegram is produced revoking a power of attorney, the register, if the facts justify it, may in his discretion suspend action until proof of the revocation and new appointment can be presented to him.</p> <p>18. If there is a concealment of assets or a failure to name all of the creditors, this does not necessarily render the proceedings void, but the question is for the determination of the court.</p> <p>[19. Cited in Sage v. Heller, 124 Mass. 214, to the point that, when no adjudication or assignment is made, a composition under the statute does not dissolve an attachment or affect the rights of the attaching creditor, who took no part in those proceedings.]</p>

The bill was filed against Blaine, Irwin and Carothers, in October, 1824. Carothers died before answer. His death was averred in the answer of Irwin. The answer of Blaine and Irwin was filed in September, 1825. Blaine died some time before October,‘182S, but no suggestion of his death was entered on the record, or any notice taken of it.

This was an action on the ease by Dwight Scott, owner of the propeller S. D. Caldwell, for damages caused by the neglect to open a bridge across the Chicago river, on account of which the propeller was frozen in, and delayed and damaged.

[This was a libel for salvage by Dominick Boyle, master of the steam tug Jacob Bran-dow, for himself and owners, officers, etc., of the tug, and Richard Scott, master of the steamer Planter, for himself and owners, officers, etc., of the steamer, against the schooner Clara E. Bergen and cargo.]

[This was a suit by Thomas A. Scott and others, trustees, against the Clinton & Springfield Railroad Company.] This cause, originally instituted in the circuit court of McLean county, Illinois, was removed to the circuit court of the United States for the Southern district of Illinois, in December, 1875, unaer the act of congress of March 3, 1875, and a motion having been made- by Henry Crawford on behalf of the respondents to strike the record from the files, and TREAT,…

[These were cross actions by John C. Riley and others against the steamboat Yorktown No. 2 and others, and by John Scott and John A. Dublé, owners of the steamboat Yorktown No. 2, against the steamboat Dick Keyes and others.]

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

<p>Case No. 12,529.</p> <p>Adverse Possession — Cotenants—Lavse op Time —Assignment—Notice.</p> <p>1. Lapse of time a good bar to a claim of title though the statute of limitations would not operate in the case.</p> <p>2. An adverse possession held by a tenant in common, to the exclusion of his eotenants, bars under the statute or by lapse of time.</p> <p>3. An assignment recited in a patent that the warrant was assigned by the representatives of A. B. is no notice to the purchaser that the assignment was made without authority.</p> <p>[Cited in Acer v. Westeott, 46 N. Y. 390.]</p>

<p>[This was a libel for wages by Eliza Scott against David Falles.]</p>

[Tlris was a libel by Scott, administrator of Ellis, a mariner, against the brig Greenwich.] The mariner died on the home passage. Payment to the time of his decease, agreed to be paid; but the residue for the voyage disputed.

<p>[This was an action by Joseph Scott and M. T. Scott against William Hawsman. Heard on motion for a new trial.]</p>

Action on fire policy. Defense, that the plaintiffs burned their own property, covered by the policy. Similar actions had been brought by the plaintiffs on other policies. By consent, certain special issues were submitted to the jury, and their answers were to be taken as applicable to all the cases. It was made a question on the trial as to the degree, or quantum of proof requisite to establish the charge that the assured had themselves burned the property.

In equity. Some time previously to 1849, Richard M. Scott, of Stafford county, Virginia, devised his St. Marysville plantation in that county to trustees for the benefit of his eldest son •during his life; and after his death, to Eliza Scott, wife of the devisor, for her life; charging the estate with a small annual rent per annum for the benefit of his heirs. He aft-erwards died.

<p>Case No. 12,636.</p> <p>Set Off — Action on Bond — Assignment—Pkes-ent Demand — Notice.</p> <p>1. J. S. executed his bond to T. M. R. who assigned it to J. At the time of the assignment, there was a running account between J. S. and T. M. R. The assignee instituted suit against the obligor, and some time afterwards, but before judgment, upon a settlement of accounts, between J. S. and T. M. R., there was found a balance due from T. M. R. to J. S., which was acknowledged at the foot of the account, by T. M. R„ who promised to pay it three years after the date of the settlement. Held, that this claim cannot be used as an offset against the bond, against the assignee, either at law, or in equity.</p> <p>2. A debt payable in future, cannot be pleaded in bar of a present demand.</p> <p>3. The obligor in an assigned bond, who has equitable discounts against it. ought to inform the assignee of his claims, when notice of the assignment is given to him.</p> <p>[Questioned in Stebbins v. Bruce, 80 Va. 398. Cited in brief in Washington v. Pollard, 5 Grat. 452.)</p>

In Maryland, in the year 1819, the appellant was not bound to prosecute his appeal and transmit the record until the term next after the approval of the appeal-bond.

This was an action brought by James B, Scott and James Lyle, trustees for Scott, Irvine & Co., against Samuel Lenox, surviving partner of Heron, Lenox & Co. subjects of the king of Great Britain, to recover damages for waste alleged to have been committed on fourteen half-acre lots in the town of Manchester, and state of Virginia, which lots were held by Samuel Lenox, surviving partner as aforesaid, as tenant by elegit.

<p>[This was a bill in equity, to foreclose a mortgage, by Thomas A. Scott and G. W. Cass, trustees, against the Mansfield, Cold-water & Lake Michigan Railroad Company.]</p>

<p>[This was a libel by Scott and Curtis against the Morning Glory.]</p>

On motion by the defendants [H. W. Otis and others] to remand cause to the state court. The suit was brought [by M. T. Scott] in the state court at the May term, 1875, and at the May term, 1877, it was by consent referred by the court to a referee for trial. This reference was made in pursuance of the Code of Iowa on that subject. The following sections of that Code relate to the powers and duties of a referee: “Sec. 2820.

Libel filed [by Dwight Scott] for the recovery of a bill for painting the propeller while lying in the port of Cleveland, Ohio.

<p>Case No. 12,545.</p> <p>Seamen — Wages—Absence without Leave — Judicial Discretion — Entry in Loo Book —Repeal of Statutes.</p> <p>1. The act of 20th July, 1790, § 5 (1 Stat. 133). so far as relates to absence without leave, and an entry thereof in the log-book, was repealed by the statute of 7th June, 1872, § 51, &c. (17 Stat. 273): and, if that statute is repealed, as to coasting voyages, by St. 1874, c. 260 (18 Stat. 64), the repeal does not affect rights accrued before the repeal.</p> <p>[Cited in Ross v. Bourne, 14 Fed. 859; Welcome v. The Yosemite, 18 Fed. 384; Brink v. Lyons, Id. 607; U. S. v. Buckley, 31 Fed. 808.]</p> <p>[Cited in Eddy v. O’Hara, 132 Mass. 60.J</p> <p>2. The forfeiture of wages for absence without leave is left largely to the discretion of the court; and, where such absence was not fully justified, but had caused no pecuniary loss to the master, a small deduction from the wages was made.</p> <p>TCited in Brink v. Lyons, 18 Fed. 607.]</p>

This was a libel in personam, by John Scott, against William H. Bussell, master of the ship Niagara, to recover for seamen's wages. It appeared that the libellant, a resident of Liverpool, shipped, at the port of New York, on board the Niagara, as cook, for a voyage to Liverpool and back, and earned wages on the voyage.

This was a writ of right brought by Robert E. Scott, Susan Scott and James C. Madison, citizens of Virginia, in which they demanded of the defendant [Henry Widdington] the land in controversy, &c. whereupon the said Robert G. Scott and Susan Scott say that they have a right to the farm and tenement aforesaid, with the appurtenances, and offer proof, &c. and issue, &c. After the evidence was heard, the defendant’s counsel moved the court to instruct the jury to find for the…

The libel in this ease was filed by [Dwight Scott] the owner of the schooner Constitution to recover damages resulting to the schooner from a collision with the propeller, in the month of August, 1855, while the schooner was lying windbound in the Welland canal. The usual allegations of carelessness and negligence on the part of the libeled vessel were contained in the libel.

<p>Case No. 12,548.</p> <p>Imprisonment for Debt — Pkison-Bounds Bond —Assignment.</p> <p>A prison-hounds bond may be assigned by a •deputy-marshal.</p>

This was a case of collision. [The libel was filed by Dwight Scott, owner of the schooner Constitution, against the propeller Young America.] A motion was made in the case to vacate an order taking the libel as confessed, and for leave to answer, based upon the sole ground that the alleged collision, as appeared from the libel, occurred upon waters beyond the jurisdiction of the court.

<p>[Appeal from the district court of the United States for the Eastern district of Pennsylvania.]</p> <p>In admiralty.</p>

The plaintiffs [Gustavus A. Scovill and others] were the assignees in bankruptcy of the Fort Scott Coal & Mining Co. The defendants [Lemuel Shaw and others] were the executors of Samuel Hooper, who died February 14. 1875, and they were appointed on the 15th of March of that year. By the law of Kansas any corporation may increase its capital stock to any amount not exceeding double the amount of its authorized capital.

<p>[This was an application by A. L. Scoville for an injunction against Toland and Clinton.]</p>

[This was a libel to recover damages for a collision. There was a decree for the libel-ants, with an order of reference. Case No. 12,554. The cause is now heard on exceptions to the commissioner’s report.]

<p>Case Wo. 18,564.</p> <p>Collision at Pier — Negligence.</p> <p>A scow, loaded with a deck-load of stone, was moored alongside a sloop at a pier. She took a lurch towards the sloop and cast off a small part of her load, then took a more violent lurch outward and dumped the whole of it, and rebounding violently, fell on the sloop and injured her. The owner of the sloop filed a libel against the scow to recover the damages, claiming that the rolling of the scow was caused by her being leaky and overloaded. The master of the scow contradicted this, and testified that it was caused by swells from a passing steamer, and by the scow’s striking the ground when she first rolled towards the sloop: Meld, that, in either event, the master of the scow was negligent,, for he was chargeable with knowledge of the depth of the water and the liability of swells from passing steamboats; and if the accident arose from the shallowness of the water, it was a fault to moor the scow there.</p> <p>[NOTE. The commissioner reported the damages to be more than the value of the vessel at the time of the collision. This was accounted for by the fact that extensive repairs had been made. Upon a hearing on exceptions to the commissioner’s report it was held that the repairs were imprudently made, and that the li-belants could only recover for the value of their vessel at the time of the collision. The report of the commission was therefore overruled. Case No. 12,555.)</p>

<p>Case No. 12,556.</p> <p>Bankrupt Act — Number and Value or Creditors — Attachinq Creditors.</p> <p>Creditors who have obtained liens by attachment within four months before the commencement of proceedings in bankruptcy, are not to be reckoned in computing the proportion of creditors who must unite in an involuntary petition.</p> <p>[Cited in Hatfield v. Moller, 4 Fed. 719.]</p> <p>NOTE. This case overrules [Oase No. 12.-557]: contra, In re Hatje [Id. 6,215]. See In re Broich [Id. 1,921]; In re Frost rid. 5.134]; In re Green Pond R. Co. [Id. 5,786]. As to dissolution of attachment by bankruptcy proceedings, Bracken v. Johnston [Id. 1,761]; Mc-Cord v. McNeil [Id. 8,714], Attachment creditor cannot force debtor into bankruptcy. In re Hazens [Id. 6,285].</p>

<p>In bankruptcy.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in rem, filed in the district court, by the owners of the canal boat McCord and her cargo, against the steamboat Scranton and the steam propeller William F. Burden to recover damages for a collision which occurred about eleven o’clock a. m., on the 9th of December, 1863, between the canal boat and the Scranton, in the East river, just below the Fulton ferry, on the…

These suits were brought by the plaintiffs on the chancery side of this court against James, Thomas, and Francis Deane, and others, their creditors, for. the purpose of enforcing their liens on the estate of James and Thomas Deane, created by two several decrees of the court of chancery of the state, pronounced in their favour, respectively, on the 20th of March, 1801.

This was an. action for a return of premium, paid upon an insurance on goods, laden or to be laden on board the Alert, at and from La Vera Cruz to New-York, with liberty to touch and trade at New-Orleans, or Havana, on the return voyage; beginning the adventure from and immediately after the loading of said goods on board the vessel, at La Vera Cruz. The policy was dated the 9th of October, 1801.

The facts in these cases, as they appeared by the bills and affidavits, were as follows: A. T. Black and others, trading as A. & C. Black, of Edinburgh, Scotland, were the proprietors of a certain publication known as the Encyclopaedia Britannica, and in 1875 they began the publication of the ninth edition of their work, which was imported into the United States and sold at $9 per volume, the work to be completed in twenty-one volumes.

Plaintiff [William A. Seripps] brought an action of trespass on the case in the superior court of Detroit to recover damages for being unlawfully put off a steamboat belonging to the defendants [George Campbell and others], upon which he had taken passage from Detroit to Duluth. Defendants, who were aliens, having removed the cause to this court, a trial was had and a verdict rendered in favor of the plaintiff for thirty dollars. Both parties now move for costs.

<p>Case No. 12,564.</p> <p>Notes — Failure of Consideration — Partial Failure — Contracts against Public Policy.</p> <p>1. Where the action is on a promissory note, a failure of the consideration is a good defence. And it is immaterial whether the consideration was land, or other property.</p> <p>2. A partial failure of consideration can not be set up as matter of defence.</p> <p>3. On this point there is a confliction in the decided cases, but the weight of authority re-auires a total failure of the consideration.</p> <p>4. Where the defendants gave their note for a tract of land, which belonged to the United States, and to which the plaintiff could have no title, the defendants may plead the fact, to an action on the note.</p> <p>5. A contract in violation of law, or against public policy, can not be enforced.</p> <p>TCited in Elminger v. Drew. Case No. 4,416; Tufts v. Tuftsi Id. 14,233.]</p>

This was a proceeding in invitum. The petition was formally answered under oath by the bankrupts [Scudder, Wilcox & Ogden], who alleged that no act of bankruptcy had been committed by them, and an order of reference to Commissioner Campbell was taken out by them on their objections. ' At the meeting before the commissioner, the counsel for the creditors contended that the parties sought to be declared bankrupts, having filed their objections to the petition for a decree, and…

<p>Case No. 12,565.</p> <p>Sale — Building Ship — When Title Passes — Possession and Sale by Agent — Register.</p> <p>1.Under a contract for building an entire vessel, no property vests in the party for whom the vessel is built, until she is ready for delivers-, and has been approved or accepted by such party; but that general rule does not prevail where the vessel is constructed under the superintendence of the party for whom she is built, or his agent, and payments for her. based upon the progress of the work, are to be made by instalments as the work is done. In such cases the person for whom the vessel is built is regarded as the real owner.</p> <p>[Cited in Clarkson v. Stevens, 100 U. S. 505, 1 Sup. Ct 207.]</p> <p>[Cited in Jones v. Wilder. 28 Minn. 245. 9 N. W. 711; Stevens v. Shippen. 28 N. J. Eq. 52S.]</p> <p>2. Delivery of a vessel by the builders of the hull thereof to one as agent of the real owners, of itself vests no title in such-agent, although the builders had no knowledge of the capacity in which the vessel was received by him. Unaccompanied by a written conveyance, such delivery must be understood as vesting the title in the real owners, and the taking of a bill of sale by such agent four months afterwards could not liave the effect to divest the owners’ title, and vest it in the agent.</p> <p>3. In the United States the title to a vessel may pass by delivery under a parol contract.</p> <p>4. Of itself, the register is not evidence of property, unless confirmed by auxiliary circumstances to show that it was made by the authority or with the assent of the person named in it, and who is subject to be charged as owner.</p> <p>5. A purchaser of a vessel from a person holding the same in trust for the real owners, having notice of the trust, is in no better situation .than the seller.</p>

<p>Case No. 12,566.</p> <p>Shipping — Registe» — Equitable Title — Practice in Equity — Parties.</p> <p>1. The registry acts of the United States do not require a disclosure of the equitable title of the vessel registered or enrolled, unless that title is in the subject of a foreign state.</p> <p>2. Where an agent is employed to procure a vessel to be built in his own name, and to transfer the title eventually to his employer, and he fraudulently transfers the title to a stranger, with notice, the transaction creates a trust properly cognizable in equity.</p> <p>3. In a suit in equity to enforce such a trust, all the equitable owners should be joined as parties, but if one is out of the jurisdiction and will not join in the suit, the court has power to proceed in his absence.</p> <p>[NOTE. Subsequently there was a hearing upon the amended bill. A decree was entered for complainant, with an order of reference. Case No. 12,365. An appeal from that decree was taken to the supreme court, where the decree was reversed. 2 Black (67 U. S.) 372.]</p>

<p>[In the matter of Isaac Scull, a bankrupt.]1</p> <p>creditors.</p>

This was an action of trover and conversion, brought for certain sails, rigging, masts, &c., which had belonged to a vessel of the plaintiff, wrecked on the coast of Maryland; and being got on shore, the vessel and tackle were sold at public sale, by the captain, upon notice, and were purchased by the defendant. The plaintiff had hired the vessel to the captain for seventy-five dollars a month, for as long a time as both parties should please.

<p>Case No. 12,570a.</p> <p>Contracts — Materiality, op Time of Making-Practice at Law — Arrest op Judgment.</p> <p>1. In an action on the case for failure to perform a parol contract, the time of making it is not material, and hence, where it was alleged to be made on the 19th of September, 1828, to take effect in 40 days, and the breach of it was assigned to have occurred the next day, it will be presumed, after verdict, that it was proven that the breach occurred after the expiration of 40 days; and it is error to arrest the judgment.</p> <p>2. The contract shows a cause of action.</p>

<p>Case No. 12,670b.</p> <p>Writs — Capias—Error—Correct Alias.</p> <p>A suit should not be dismissed because a capias not served was erroneous when an alias capias executed on the defendant is correct, as the court should not look beyond the last writ.</p>

<p>Appeal from Arkansas circuit court.</p> <p>[This was an action by Hewes Scull against Samuel C. Roane.]</p>

<p>Case No. 12,571.</p> <p>Seamen — Failure to Join Ship — Right to be Reinstated — W ages — Forfeiture.</p> <p>Where a seaman fails by his own fault to rejoin the ship at an intermediate port, at which she has touched in the course of the voyage, and she sails away without him, the master is not bound to reinstate him upon the return of the vessel to the same port in the course of her voyage.</p> <p>[Cited in The Erieson. Case No. 4,510.]</p>

In admiralty. Libel in rem by the owners of the schooner Sea Breeze against the steam tug Ellen, to recover the value of the schooner, sunk in Saco river from the alleged fault of the tug while having her in tow. The owners of the tug filed their claim and answer and denied all fault on the part of the tug, but alleged the disaster occurred from the fault of the master of the schooner, in not following in the wake of the tug as he was directed to do.

<p>Case No. 12,573.</p> <p>Bankruptcy — Discharge—Objections by Credit- or-Appearance — Speciei CATIONS.</p> <p>1. An appearance for a creditor in opposition to the discharge of a bankrupt, entered on an adjourned day of the hearing on the order, to show cause, after several adjournments have been had, is not too late.</p> <p>[Cited in Re Houghton, Case No. 6,730.]</p> <p>2. An appearance is sufficient if entered on the clerk’s docket on that day, but, under general order 24. written specifications must be filed within ten days thereafter, to entitle such creditor to be heard.</p>

This is an action of ejectment [by Pardon G. Seabury and others against Edward Field] instituted for the recovery of a lot of land forming a portion of property known as the “Beach and Water Lots,” situate in front of the city of San Francisco, intermediate low-water mark and the ship-channel of the bay and between Rincon and Fort Montgomery Points. The plea filed was a general denial, equivalent to a plea of not guilty at common law.

[This was an action of ejectment by Pardon G. Seabury and others against Edward Field and others.] A verdict was rendered at the present term of this court in favor of the plaintiffs [Case No. 12,574], and a motion is made for a new trial upon three grounds, all of which are enumerated in the opinion of the court.

[Appeal from the district court of the United States for the Southern district of New York.] John Davenport filed a libel in rem against the brig Sea Flower, in the district eourt. to recover the sum of 81.381 45 advanced for repairs to and other necessaries for the brig Sea Flower in the island of Bermuda.

<p>[This was a bill by George J. Seabury and Robert W. Johnson against John M. Gros-venor to restrain the infringement of a trademark.]</p>

[Appeal from the district court of the United States for the district of Maryland.] The steamers Sea Gull and Leary, plying out of the port of Baltimore in the trade of the Chesapeake, came in collision, whereby the Sea Gull injured the Leary, and caused the death of the wife of the libellant in this case, who was stewardess on the Leary.

<p>Case No. 18,578a.</p> <p>Shipping — Care in Navigation — Maritime Tort — Damages por Wrongful Killing.</p> <p>1. A steamer, leaving a crowded port, is bound to use special diligence and care in navigation; otherwise she will be held responsible for damages occurring to sailing vessels, in consequence of collision, in the default of clear proof of fault on their part.</p> <p>2. A wife, whose husband is engaged in navigating a row boat in the harbor of Baltimore, and is killed by collision with a departing steamer, navigating the waters of the harbor without sufficient caution, is entitled to recover damages in an action against the steamer.</p>

This was a libel in admiralty, by the owners of the ship Jabez Snow, to recover the value of a chain and anchor, furnished to the ship Sea Larlt, in September, 1857, at the Chincha Islands. Both vessels were of Boston, and met at the Chincha Islands.

<p>[In the matter of Conrad Seaman, a bankrupt.]</p>

<p>[This was a libel by Seaman and Gillespie against the steamboat Crescent City, to recover damages for a collision.]</p>

<p>Case No. 12,582.</p> <p>Salvage — Ice—Common Carrier — Liability of Owners for Salvage of Cargo.</p> <p>1.Where a railway company received freight in New York, which must be carried to New Jersey to be put on the railroad trains, and had made a contract with one A. to carry such freight from a dock in the East river to the station in Jersey City, A. agreeing to assume the risk of the transportation across the river, and a barge belonging to the company, loaded with such freight, was transporting it across the river, under the direction of A. or his employees, the barge, with another barge, being towed hy a steamboat, and the hawser parted, and the one barge was left to drift, while the steamboat took care of the other; and while she was so drifting, a large field of ice came up the river, and carried her along with it in such a direction that the barge was in imminent danger of being crushed between the ice and a pier above, and thereupon a steamtug, on the call of those on board the barge, went to her, and pulled her out of the ice, and got her into one of the slips, till the field drifted by, the value of the barge and cargo being from $80,000 to $45.000, and of the tug $10.000, and the service occupying about half an hour, held, that the service was a salvage service.</p> <p>2. The railway company were personally liable for the salvage.</p> <p>3. $500 was a reasonable salvage, besides $50 for injury to a hawser.</p>

This was an action brought by the plaintiff [Xoung Seamans), as indorsee of the executors, &c. of Amos M. Atwell, an insurance broker, to recover a premium note signed by the defendants [Caleb Loring and others], and dated the 7th of February, 1814, for the sum of $1,401, payable to the said AtweE, or order. in ninety days after date.

[Reuben] Searcy filed his bill, praying for relief against a judgment obtained at law against him by the defendant Pannell.

<p>Case No. 12,584a.</p> <p>Appeals— Exceptions Taken — Court not op Record.</p> <p>1. “Where it does not appear that exceptions were taken, the appellate court, which tries the case on the record alone, will presume the judgment to be correct.</p> <p>2. The superior court can only entertain a writ of error issued to, or an appeal from, a court of record.</p> <p>3. The court of a justice of the peace is not a court of record.</p>

[This was a bill in equity by James E. Searles and others against the Jacksonville, Pensacola & Mobile Railroad Company and others.] Heard upon application for injunction July 2, 1873, before BRADLEY, Circuit Justice, at chambers, in Washington, upon notice duly given.

<p>[This was a bill in equity by Anson Searles and others against Abraham R. Van Nest and others, for an injunction and account.]</p>

[This was a bill in equity by Anson Searles and others against Abraham R. Van Nest and others for the infringement of letters patent No. 70.627, granted to E. W. Scott November 5, 18G7, reissued March 6, 1S73, No. 5,400. There was a decree for complainant (Case No. 12,587), and the cause is now before the court on n rehearing.]

This was a suit for seaman’s wages. The libellant, H. Williams, alleges that in the month of December, 1845, while the sloop Searle W. Jacobs was at the port of Cherry Stone, in the state of Virginia, destined on a voyage to the port of New-York, David Van Wagner, the master of the vessel, hired the libellant as a mariner, at the rate of twenty dollars per month; that in pursuance of the agreement, on the 26th day of December, 1845, libellant went on board of said vessel,…

Appeal in admiralty from a decree of the district court of the United States for the district of Massachusetts. The libel was in the usual form of a libel in rem in a cause of contract civil and maritime, and was filed on the 17th of December, 1857, by Paul Sears, on behalf of himself and the other owners of the ship Bold Hunter, to recover a certain amount of freight earned by the ship on a voyage from Calcutta to Boston.

[Error to the district court of the United States for the district of Massachusetts.] The original action was debt for a penalty.

In June or July last, Emory H. Penniman, then the owner of the brig Carroni, being in this port, applied to the firm of Tappan & Starbuek of this city, to act for him as brokers or ship’s husbands of the vessel in making a voyage to Aspinwall with a cargo of coal, representing the vessel to be seaworthy and in good repair, and obtained from them an advance of $500 cash, upon the arrangement that her freight bills should be assigned them for their security, and that they…

[This was a libel in rem by Zachariah Seaver. against the bark Thales, and in personam against Capt. Howland, the master, for advances to the seamen, notarial and shipping fees.]

<p>Case No. 12.595.</p> <p>Administrator —Sale of Lands — Guardian-Sale by — Confirmation by Statute of Void Sale.</p> <p>1. A sale of lands in the Sacramento district in 1849 made by John Bidwell in the assumed character of administrator, upon authority to settle the estate of a deceased person giveii by Alcalde Schoolcraft, upon a verbal application, no judicial record of the proceeding having been shown, held to be void.</p> <p>[Cited in McNeil v. First Congregational Soc. (Cal.) 4 Pac. 1098.]</p> <p>2. Under the act of 1850, authorizing the ap.-pointment of guardians for non-resident minors having estates within the state, “after notice given to all persons interested in such manner as the judge shall order." an appointment of guardian without giving any notice whatever is void.</p> <p>3. In such case the record must affirmatively show that every act essential to give jurisdiction to make the appointment has been performed, or the appointment will be void.</p> <p>4. Wheie the appointment of a guardian is void by reason of its having been made without first acquiring jurisdiction by giving the notice required by the statute, all subsequent proceedings. including the sale of the ward’s estate, are void.</p> <p>5. The statute of 1866. making valid all sales under orders of the probate court, where there have been “defects of form, or omissions, or errors.” does not validate sales made where no jurisdiction to act at all has been acquired. It was only- intended to embrace cases where defects. omissions or errors have arisen in the course óf the exercise of jurisdiction already acquired.</p> <p>TCited in note in Hahn v. Kelly, 34 Cal. 393.]</p> <p>6. If -otherwise, the act itself is void for want of constitutional power in the legislature by a legislative act to arbitrarily transfer the property of one party to another.</p>

<p>Case No. 12,596.</p> <p>Habeas Corpus — Who mat Grant Writ — Army —Enlistment—Want or Age — Return of Writ.</p> <p>1. Under section 14 of the judiciary act [1 Stat. 8l]. justices of the supreme court and district courts have power to grant writs of habeas corpus where a person is imprisoned or restrained of his liberty, for the purpose of inquiry into the cause of the commitment; but the writ in no case extends to prisoners in jail, unless when they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are to be brought into a court to testify.</p> <p>2. Under that act a circuit court has no authority to re-examine a decision of a district court.</p> <p>3. The first section of the act of February 5. 18G7 [14 Stat. 385], confers upon all the judges and justices of the courts of the United States, in addition to the authority previously conferred, power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution or any law or treaty of the United States, and gives an appeal from the decision of an inferior to the circuit court.</p> <p>[Cited in U. S. v. Hanchett, 18 Fed. 28.]</p> <p>4. In case of the enlistment into the service of the United States, without the consent of parent or guardian, of a person under eighteen years of age, on a hearing under a petition for a writ of habeas corpus, parol evidence is admissible to show the age of the recruit.</p> <p>5. The certificate of enlistment is not conclusive that the recruit was of age sufficient to enter into the contract.</p> <p>6. The first proviso of section 20 of the act of February 24, 1804 [18 Stat. 10]. does not vest the exclusive jurisdiction of applications of this nature in the secretary of war.</p> <p>7. If the recruit was under the age of eighteen years, his certificate under oath that he was of the age required for lawful enlistment, would not be conclusive as to the actual fact.</p> <p>[Cited in Re Davison, 4 Fed. 509; s. c., 21 ' Fed. 622.]</p> <p>8. The act of March 3. 1815 [3 Stat. 224], repealed the act of December 10, 1814 [Id. 146], which made the enlistment binding upon all persons under the age of twenty-one years as well as upon persons of full age.</p> <p>9. By the act of the 24th of February. 1864, the secretary of war is empowered to order the discharge of all persons in the military service who are under the age of eighteen years at the time of the application for the discharge, provided it appears on due proof that such persons are in the service without the consent of parent, or guardian, provided bounties, advance, etc., are first repaid to the government and the local authorities.</p> <p>[Cited in Re Davison, 21 Fed. 623; Re Chapman, 37 Fed. 330.]</p> <p>10. But this does not give the secretary of war exclusive jurisdiction of such applications.</p> <p>11. This provision giving the secretary of war power to hear such applications," is not repugnant to, or a repeal of, section 14 of the judiciary act..</p> <p>12. In order to work a repeal by implication there must be a positive repugnancy'between the provisions of the older and later statute.</p> <p>13. Upon an application for a writ of habeas corpus before the district court, there was no de-fence that the recruit was awaiting a trial under a charge of desertion before a military court, and no evidence to that effect introduced before that court: Held, that at the hearing of the appeal before the circuit court, the suggestion that that fact was shown by the return could not avail the respondent, because the jurisdiction of the circuit court in this case was purely appellate.</p> <p>TCited in U. S. v. Fowkes, 53 Fed. 14.]</p> <p>14. The return on the writ should be signed by the person to whom it was directed.</p> <p>15. The proper course is for the petitioner to make his answer to the return on the writ, and not to make his allegations in full in the petition.</p>

In taxing the bill of costs in this case, the clerk refused to allow to the successful party any compensation for his own attendance, and for his travelling expenses, because no such allowance was, or is allowed by the laws of the state.

In equity. The complainant filed a bill to foreclose a mortgage of which he was the assignee. The bill alleged that the mortgage was given to secure certain notes executed by the mortgagor, which notes and mortgage were sold and transferred by the payees and mortgagees named therein, and by written assignment and delivery came to the hands of the complainant. Defendant demurred on the ground that the court had not jurisdiction of the subject-matter of .the action.

[In the matter of Isaac Seekendorf. a bankrupt.] By the Register: 2 [I. Edgar Ketchum. one of the registers of said court in bankruptcy, do hereby certify that in the course of the proceedings in said cause before me. the following question arose pertinent to the said proceedings, and is stated and agreed to by the counsel for the opposing parties, to wit: Mr. Du Bois Smith (substituted for Mr Kaufman), who appeared for the bankrupt, and Messrs.

This aetiou is brought to recover possession of lot 10, block 42, in the city of Minneapolis. Ovid Pinney and Hiram Osborne, it is conceded, were the owners in fee of the lot, August 19th, 1863. On August 9th, 1866, Pin-ney conveyed his interest, which was one-sixteenth, to Stewart, and on February 19th, 1870, Stewart conveyed to plaintiff.

Motion to remand to state court At the suit of the plaintiff two writs of foreign attachment, dated respectively October 3d and 29th, 1881, issued out of the circuit court of the county of Hudson, against the defendant, a New York corporation. Under these writs the sheriff attached the property of the defendant. Motions to dissolve the attachments were made and refused.

<p>Case No. 12,602.</p> <p>Bailment — Gratuitous Bailee — Record—Evidence of What.</p> <p>1. A bank applied to another bank to perform the service of loaning some money for it, requesting that a proper charge be made to it for the service. The latter bank made the loan. It had a running account with the former bank, but made no charge, in such account, for such service, and determined to accept no compensation therefor from the former bank, but did not communicate such determination to the former bank. The loan was made on a deposit of securities with the latter bank, which,'while in its custody, were stolen from it. «The depositor of the securities, in a suit against him by the former bank, recovered against it a judgment for the value ot the excess of the securities beyond the amount of the loan, which it paid. It then brought this suit against the latter bank, to recover the amount of the money loaned and the amount so paid to the depositor, on the ground that the latter bank was negligent in allowing the securities to be stolen. Held, that the latter bank was not a gratuitous bailee of the securities, as between it and the former bank.</p> <p>[Cited in Davisson v. Ford, 23 W. Va. 628.]</p> <p>2. The record of the suit brought by the depositor of the securities against the former bank was offered in evidence in this suit, on the part of the plaintiff, not only to prove the quantum of damages sustained by the plaintiff in consequence of the loss of the securities, but to prove the liability of the defendant for such loss: Held, that such record was not evidence of such liability.</p>

<p>Case No. 12,603.</p> <p>Corporations — Power to Hold Property — Legislative Restrictions.</p> <p>TA statute incorporating a Masonic association with power m acquire and hold real and. personal property to the amount of $50,000 (Act Mo. Peb. 13, 1864, Laws 1863-64, p. 387), contains an implied prohibition against the purchase of property to any greater amount; and an executory contract entered into by such corporation to assume the payment of $200,000 worth of bonds of another corporation in consideration of receiving stock of that corporation to the same amount cannot be made the basis of any liability, even in favor of persons who had purchased such bonds upon the faith of the contract.]</p>

The libel in this case was filed to recover for work done and materials furnished by the li-belants to the steamboat.

[This was a bill in equity by James E. Secor against the Toledo, Peoria & Warsaw Railroad Company.] A bill was filed in 1874, in the… Held: in accordance with all the authorities, that the appointment of the receiver, and the order to him to take possession of and operate the road, was exclusive in its character, and by its terms necessarily prohibited all interference with the road- by unauthorized .persons, and that such interference was of itself a contempt of the…

! This was a demurrer to a plea in abate- ! ment to a scire facias to make the executors | of the defendant, Emeline Taylor, parties to : this proceeding. The original proceeding ! was a libel in personam for a marine tort, ■ filed by the libellant, the Security Insurance i Company, against Emeline Taylor, executrix j of Isaac Taylor, deceased; John Campbell j and Hollingford Warfield alleging in sub-i stance that they were the owners of the- | steamer Geo.

<p>Case No. 12,608.</p> <p>Marshal — Failure to Take Sufficient Securi-tt — Pleading at Law — Plea in Bar.</p> <p>1. To an action on a marshal’s bond, for taking insufficient security on a replevin bond, a plea that a levy was made on goods and chattels. lands and tenements, sufficient to satisfy the judgment, is good in bar.</p> <p>2. Such a plea is good in bar to an action brought on an injunction or appeal bond.</p>

<p>Case No. 12,609.</p> <p>Judgment -Merger — Equitt—In Aid of Law— Negligence — Partnership—Mortgage.</p> <p>1. When a judgment is obtained against one of two partners on a joint promise, the contract is merged in the judgment; and an action at law can not be maintained against the partners on the same ground.</p> <p>2. Where a party has lost his remedy, through negligence at law, chancery will not aid; but where such remedy has been lost by accident, or otherwise, except by negligence, chancery will aid.</p> <p>[Cited in TJ. S. v. Ames, 99 U. S. 47.)</p> <p>3. Where one partner sells to another, who binds himself to appropriate the goods on hand, to the payment of the debts of the firm, the as-signee becomes a trustee to the creditors and the late partner, for the faithful performance of the trust.</p> <p>[Cited in Smith v. Dennison, 101 Ill. 550.)</p> <p>4. It is immaterial whether the bill in form be a creditor’s bill, if it contain upon its face matter for relief.</p> <p>5. A debtor of the judgment debtor, if he agree to pay the judgment creditor, may be decreed to make the payment.</p> <p>6. A mortgage can not be split up into different suits, on the different tracts of land mortgaged; .vet if one or more of such tracts have been sold by a prior mortgage, or if the mortgagor have no title to such tracts, they may be omitted in the bill to foreclose.</p>

<p>Case Ho. 12,610.</p> <p>Bankruptcy — Suit bt Assignee — Statute op Limitations — Adverse Interest.</p> <p>1. An assignee in bankruptcy filed a bill in equity against C., to recover from him moneys alleged to be due on an agreement made by C. with the bankrupts.. The defendant pleaded that the cause of action had not accrued within two years before the commencement of the suit, and that the defendant did not, at any time within two years after the cause of action accrued to the plaintiff against the defendant, make any acknowledgment or promise to come to any account for, or to pay or in any way satisfy the plaintiff in any sum or sums of money, for or by reason of anything alleged in the bill. The plaintiffs demurred to the plea. Held, that the limitation provided in the second section of the bankruptcy act [of 1867 (14 Stat. 518)] had no application to the suit, it being a suit merely to collect a debt in which the plaintiff claimed no interest adverse to the defendant, in any property of the bankrupts, and the defendant claimed no interest adverse to the plaintiff in any such property, and no ownership of, or title to. any specific property which belonged to the bankrupts.</p> <p>TCited in Re Krogman. Case No. 7,936; Davis v. Anderson, Id. 3,623; Bachman v. Packard, Id. 709; Norton v. Barker, Id. 10,349; Smith y. Crawford. Id. 18,030; Walker v. Towner, Id. 17,089.]</p> <p>[Cited in Beeson v. Shively, 28 Kan. 580.]</p> <p>2. That limitation of two years, moreover, applied only to controversies of which the circuit court would have jurisdiction, and the circuit court of this district would have no jurisdiction of this suit. The plea, therefore, must be overruled.</p>

In equity. This suit was brought, in the district court, by the plaintiff [John Sedgwick], a citizen of New York, as assignee in bankruptcy of Abraham Valk and James S. Yalk, who were adjudged bankrupts by said court, against the defendant [Henry Fridenberg], a citizen of New York, to set aside a transfer of property, made by the bankrupts to the defendant, as being void under the provisions of the thirty-fifth section of the bankruptcy act of March 2d, 1867, (.14 Stat.…

<p>[This was a bill in equity by John Sedg-wick, assignee of Frederick S. Kirtland and others, against George B. Grinnell.]</p>

<p>[This was a proceeding by John Sedgwick, assignee, against George B. Grinnell.]</p>

<p>[This was a bill in equity by John Sedg-wick. assignee in bankruptcy of Abraham and James S. Yalk against John Lynch.]</p>

On the 6th of January, 1857, Andrew Beiser, being insolvent, made an assignment of his property, real and personal, to William Menck, giving preferences among his creditors. Creditors' bills were filed against Beiser, the debt- or, and Menck, the assignee, under which Charles B. Bostwiek was appointed receiver of the property.

<p>Case No. 12,618.</p> <p>Bankruptcy — Unlawful Preference — -Sheriff’s Fees Paid.</p> <p>Where a creditor takes an unlawful preference by executions and seizes the bankrupt’s property, the assignee is entitled to recover from the creditor such property or its value, and in the accounting the creditor is only to be allowed credit for the actual expenses of sale, which does not include the sheriffs fees.</p>

<p>Case No. 12,617.</p> <p>Injunction — Bankruptcy—Restraint of Suitin’ State Court.</p> <p>An injunction may be issued out of the United States district court, sitting in bankruptcy, to restrain certain creditors of the bankrupt. from all further proceedings in a state court, and from intermeddling or interfering with the bankrupt's property, which had been fraudulently assigned by him. before the commencement of proceedings in bankruptcy, to an assignee of his own selection.</p> <p>[For a hearing on motion to dissolve the above injunction, see Case No. 12,616.]</p>

<p>Case No. 12,619.</p> <p>Bankruptcy — Receiver—State Assignees— Practice.</p> <p>1. A hill was fil'ed by an assignee in bankruptcy, to set aside an assignment made by thé bankrupts when insolvent, and an injunction was granted, in pursuance of the prayer of the bill, restraining the assignees from, in any manner, interfering with the property covered by the assignment; and it appeared that the property consisted in part of claims against other persons, in part of moneys deposited, in part of moneys loaned on notes secured by merchandise, and in part of other property, and that the assignees had, in pursuance of an ordep of a state court, given security for the performance of the trusts of the assignment: Beld, that a receiver should be appointed by this court.</p> <p>2. The assignees had no right to invest the funds entrusted to them, in loans on notes secured by merchandise.</p> <p>-3. The security which the assignees had given, under the state laws of New York, was not available in this court.</p> <p>4. The receiver should take possession of the property, collect all the collectible debts, and sell the merchandise, depositing hjs collections in the United States Trust Company, as fast as they should reach an amount to be named. ’</p> <p>5. The plaintiff would be appointed such receiver.</p> <p>[NOTE. Subsequently certain funds in the hands of the receiver were ordered distributed. Case No. 12,623. The court decreed that the settlement made bv James K. Place upon his wife of the real estate of Fifth avenue and the furniture therein was valid as against the creditors. Id. 12,620. This decree was, upon appeal to the circuit court, reversed upon this point, and affirmed upon other points. Id. 12,-621.]</p>

<p>This was a suit brought by [John Sedgwick], an assignee in bankruptcy [of James K. Place and James D. Sparkman, against James K. Place and others], to set aside, as void, various •conveyances made by the bankrupts. Among the property so sought to be recovered was a house in the Fifth avenue, in the city of New York, with the furniture, held by the wife of ■one of the bankrupts.</p>

<p>[Appeal from the district court of the Unit- j ed States for the Southern district of New ! York.] |</p> <p>In equity. In this case, several appeals were taken from a decree of the district court, made in a suit in equity brought in that court by [John Sedgwick] the assignee in bankruptcy of James K. Place and James I). Sparkman, composing the firm of J. K. Place & Co., to set aside various transfers of property made by the bankrupts. The decision of the district court is reported in [Case No. 12.020],</p> <p>FFor prior proceedings, see Case No. 12,022, and note.]</p>

<p>[Tbis was a bill by John Sedgwick, assignee in bankruptcy of James K. Place and James D. Sparkman, against James K. Place and others.)</p>

<p>Case No. 12,623.</p> <p>Bankruptcy — Assignment— Special Receiver— Distribution among Creditors.</p> <p>Where a voluntary assignment under the state law was adjudged valid, and debtors subsequently went into bankruptcy, a special receiver held moneys of bankrupts which had come to his hands through a voluntary assignment under the state law adjudged to be valid: Held, a proper portion thereof ought to be. distributed among the creditors in bankruptcy, not through the assignee in bankruptcy, but direct by such receiver to the proper distributees. Reference ordered to mas- ! ter to ascertain and report as to amount of dividend. distributees, etc., etc.</p> <p>[NOTE. Subsequently the district court decreed that the settlement by James K. Place upon his wife of certain real and personal estate was valid. Case No. 12.020. The circuit court, upon appeal, reversed the decision in this particular, and affirmed it upon other points.]</p>

<p>[This was an action at law by John Sedg-wick, assignee, against Thomas T. Sheffield.]</p>

<p>[This was a bill by John Sedgwick, assignee of Frederick S. Kirtland aud others, against Alexander T. Stewart and others.]</p>

<p>Case No. 12,626.</p> <p>Bankruptcy — Fraudulent Sales — Sales to Curtail Business.</p> <p>On a bill in equity brought to set aside the sale and transfer of certain stores by the bankrupts, held, that from the evidence it appeared that the stores were sold at a fair price, before insolvency, for the purpose of curtailing the business of the bankrupts, and hence the transaction cannot be impeached for fraud. Bill dismissed with coBts.</p>

Appeal by Samuel ,T. Seeley from the decision of the commissioner of patents refusing him a patent for an improvement in canal lock gates.

On motion for a new trial. James M. Seeley petitioned for a discharge, and the case was tried before a jury upon the following specifications in-opposition thereto: (1) A general assignment for the benefit of his creditors to Francis G. Russell, alleged to have been made in contemplation of bankruptcy, and for the purpose of preventing the property so assigned from coming into the hands of the assignee in bankruptcy, and being distributed in satisfaction of his debts.

<p>Appeal from the decision of the commissioner of patents awarding to Bean and Wright priority of invention for improvements in machines for winnowing grain, and awarding to them the right to receive a patent therefor, supposed to he in substance the same invention for which a patent was granted to Gris-wold and Seeley November 22, 1859.</p>

<p>Case No. 12,630.</p> <p>Penal Action — Voting—Declabation — Acting in Judicial Capacity.</p> <p>1. In an action on the case to recover the forfeit provided for in section 4 of the act of May 31, 1870 (16 Stat. 141), the declaration must aver that the plaintiff was prevented from voting, by force, bribery, threats, intimidation, or other such unlawful means.</p> <p>2. A declaration which alleges that the unlawful means by which the plaintiff was prevented from voting was the erroneous decision of the defendant, who was an officer of the election, upon a question of law, without averring that the decision was willfully or maliciously wrong, is insufficient.</p> <p>NOTE. Public officers, acting in a judicial capacity or in matters requiring the exercise of judgment and discretion, are not liable for damages resulting from their mistakes. Har-man v. Tappenden, 1 East, 555; Jenkins v. Waldron, 11 Johns. 120; Wilson v. City of New York, 1 Denio. 599: Weaver v. Deven-dorf, 3 Denio, 117; Griffith v. Follett. 20 Barb. 621; Mills y. City of Brooklyn, 32 N. Y. 489; Kendall v. Stokes, 3 How. [44 ü. S.] 87.</p>

The bill in this case was filed by the plaintiff [Lewis C. Segee],' a citizen of Connecticut, against the defendants [Henry Thomas and Lucy W. Thomas, his wife], citizens of New York.

This was a rule upon the marshal to return the capias ad satisfaciendum, issued in this case. Judgment had been obtained against Ingraham and two others. The capias ad satisfaciendum issued against all three; and the marshal now returns that the plaintiff’s attorney directed him not to serve it on Ket-land, one of the defendants, he having paid his part, and been released; and that another of the defendants could not be found. Ketland was not released.

Plaintiffs [Seidenbach, Schwab & Co.], who are citizens of Ohio, sued, in an action to recover money, the two defendants [J. T. Hollo-well and W. C. Watt], who are both citizens of the state of Arkansas, and who are inhabitants of the Western district, in the circuit court for the Eastern district, and sued out from this court a writ of attachment directed to the marshal for the Western district, but did not sue out any writ to the Eastern district Both defendants being…

<p>Case No. 12,636.</p> <p>Shipping— Master— English Vessel — Wages— Lien Claimed under English Statute.</p> <p>The claim of a master of a British ship to be paid his wages concurrently with the seamen, and in preference to the Claims of material men, disallowed.</p> <p>[Cited in Covert v. The Wexford, 3 Fed. 580. Quoted in The Graf Klot Trautvetter, 8 Fed. 836. Cited in The Brantford City, 29 Fed. 386; The Olga, 32 Fed. 331; The Angela Maria, 35 Fed. 431; The Scotia, Id. 909.1</p>

Appeal by G. M. Selden, assignee of D. S. McNamara, from the decision of the commissioner of patents refusing to grant his application for a reissue and division of his patent of Sept. 2S, 1S5S, for improvements in harvesters.

[Appeal from the district court of the United States for the district of Virginia.] The appellees, John Hendrickson and George Pryor, merchants in the city of New York, filed their libel in the district court of the United States, at Richmond, against the schooner Richmond, her freight, tackle, and apparel, and Cary Selden, the owner of the said vessel, living in the city of Richmond, to recover the amount of a bottomry bond, executed by Joseph P. Colvin, master of the said…

<p>Case No. IS,640.</p> <p>States — Moxet is Treasury Devoted to Particular Purpose — Misapplication— Creditor — Maxdamus.</p> <p>Where money in a state treasury devoted by the state constitution to the payment of a particular indebtedness has been applied by direction of the state legislature to another purpose, and, afterwards, money comes into the state treasury which a public creditor, who was entitled to the money first unapplied, seeks to have paid to himself in discharge of his claim: Held, that although a court of chancery might properly have enjoined the state treasurer from the original misapplication, on bill filed in time, yet that it has no power, after the misapplication, to restrain the state treasurer from applying to the general purposes of the state subsequently received moneys, not especially dedicated by law, nor to compel the treasurer by mandamus to substitute such general funds for the moneys already improperly paid.</p>

In covenant. 1. The true construction of the transaction, upon the face of the papers set out in the declaration, is that the proceeds of the letter of credit were to go into the hands of the bank, and were to' be .used when so realized in discounting from time to time, as realized, so much of the “good business paper” hy-pothecated by the Flanagans. 2.

<p>[This was a bill in equity by August Selig-man against Joseph Day and Nathan Hy-man.]</p>

This was an action of ejectment [by Bro-die Sellon against Fidelia D. Reed] to recover the possession of lot 4, block 5, in Galva, Henry county, tried before the court without a jury.

<p>Case No. 12,645.</p> <p>New Tkial — Costs—Weight of Evidence.</p> <p>I'NOTE. No opinion can be found in this case. The statement of the decision given is from N. Y. Times, Dec. 9, 1858.]</p>

This case arose out of the memorable action of the 5th of August, 1864, in the Bay of Mobile.

The plaintiffs in this suit, Selman & Son, were merchants in Baltimore, and the defendant, Dun, resident in Essex Co., Va. In the course of trade, the defendant gave to the plaintiffs his note for the sum of $690.47, payable at the Farmers’ Bank of Virginia, at Richmond, on the 1st day of May, 1S50.

In admiralty. This was a libel by William H. Wolf and Thomas Davidson, ship-builders and proprietors of dry docks in the city of Milwaukee, to recover for repairs and supplies furnished during the year 1872 to the scow Selt, a vessel owned in said city. The owner of the vessel not appearing, Osuld Torrison, a mortgagee, was ■ allowed by the court to appear as a claimant, and answer the libel.

<p>Case No. 12,650.</p> <p>Equity — Relief against‘Judgment at Law— Secret Agkeement — Fraud upon Coliti-gants — Contribution.</p> <p>NOTE. This case was affirmed by the supreme court, in 6 Wall. [73 U. S.] 327, in an opinion closely following the reasoning and conclusions of the circuit judge, and as the facts are fully stated in the reported case, it is not deemed necessary to publish anything further here. [The opinion of the circuit, judge is nowhere reported.)</p>

<p>Trover for a slave. This cause having come on to trial again upon the amended pleadings [Case No. 12,665],</p>

<p>Action to recover possession of real property.</p>

<p>Case No. 12,660.</p> <p>Judgment — Res Judicata — Wife’s Separate Estate — Actios for Rents and Profits.</p> <p>1. The judgment or order of a court is not an estoppel, unless the matter decided was within the purview of the proceeding before the court,' and directly within the issue made and tried therein.</p> <p>2. Where a wife mortgaged her separate property to secure the debt of her husband, and the mortgagee, before the sale of the same, to satisfy the debt entered and took the rents without the consent of the wife, he was not entitled to credit the same on the husband’s debt, but was liable to her. as for the use and occupation of the premises.</p> <p>3. In an action for mesne profits, the amount expended by the defendant while in the occupation of the premises for necessary repairs and legal taxes ought to be deducted from the gross rents or value theieof, and the balance is the damage which the plaintiff has sustained and which he is entitled to recover.</p>

<p>Case No. 12,661.</p> <p>Confiscation — Proceedings—Default—Form of Proceedings.</p> <p>1. Inasmuch as the confiscation acts of August, 1861, and July, 1862, have been several times considered by the supreme court in reported cases, and no question has ever been made by counsel or court of the constitutionality of those statutes, it is a fair conclusion that neither the bar nor bench doubted their constitutionality.</p> <p>2. This court will hold, therefore, for the present. those acts . to be constitutional, but will be gratified to have the question submitted to the •supreme court, and adjudged upon direct argument and consideration.</p> <p>3. Proceedings for condemnation of lands under these statutes, may be according to forms used in admiralty, but they must conform to the course of the common law in respect to the trial of issues of fact and exceptions to evidence, and can only be reviewed after final judgment or decree on writ of error, that writ being the process by which common-law proceedings are reviewed— appeal being the appropriate method in causes of admiralty and maritime jurisdiction.</p> <p>4. In this cause the proceeding haa properly been by writ of error.</p> <p>5. But there being no appearance in the court below, there could be no issue of fact, nor direction for tiial by jury, and therefore judgment was properly entered by default.</p> <p>• 6. If it appeared by the record that an issue had been made and tried by the court without a jury, and without submission by the parties, the judgment would have been reversed.</p>

<p>Claim for two leagues of land on the Sacramento river, rejected by the board, and appealed by the claimant [Charles D. Sem-Ple].</p>

<p>Case No. 12,663.</p> <p>Maeitime Liens — Release of Vessel on Bond— Remedy of Lienholdek,</p> <p>TA vessel discharged from arrest upon admiralty process by the giving of a bond or stipulation for her value, or for the payment of the amount claimed in the libel, returns to her owner freed from the lien upon which she was arrested, and in the absence of fraud can never be seized again for the same cause of action, even by the consent of the parties.]</p> <p>[Cited in The William F. McRae, 23 Fed. 558.]</p>

Libel for salvage. The scow Senator was bound on a voyage from Saginaw to Toledo, with a cargo of lumber. Having encountered a storm, she was found, on the night of the 22d of April, 1869, to be leaking. When she had arrived off Monroe light, and some five to seven miles distant from it, she became so waterlogged that she could not proceed.

James Moffat and Alonzo N. Moffat li-belled the schooner Senator upon a claim and account certified by her master as correct, for $400, for towage services August 14th, 1873. The defenses set up will appear in the opinion of the court.

<p>Case No. 12,667.</p> <p>Collision — Steamers in East River — Lights —Whistles.</p> <p>1. A collision occurred in the evening of October 1, 1875, about oft pier 1, East river, in New York harbor between two steamers, the T. and S. M. N. The T. was bound from pier 5, East river, to pier 14. North river, to lay up for the night. The S. M. N. had towed a bark in from sea and anchored her between Bedloe’s Island and the Battery, and was bound for pier 16, East river. Both boats had their lights set and burning. The pilot of the T. averred that a ferryboat having passed ahead of him going to the northward, he ported his wheel following her up, and as she passed him he saw both the red and green lights of the S. M. N. ahead of him about 400 to 600 yards off, his boat at the time making seven or eight miles an hour; that he at once blew one whistle and ported his wheel and kept on a port wheel till the S. M. N. came in collision with the T., striking her on the port side nearly at right angles; that the S. M. N. answered his single whistle with a single whistle, but that her pilot starboarded his wheel instead of porting it, and that when the vessels were three or four lengths apart he rang his jingle bell, to give the T. more soeed. and if possible, get by. The story of the S. M. N. was. that she made the green light of the T. on her starboard bow, whereupon the pilot of the S. M. N. blew two whistles and put her wheel slightly to starboard, and that the T., after waiting about a minute, answered with one whistle and ported her wheel and ran across the course of the S. M. N. and thus caused the collision. Held, that it is difficult to believe that, after the pilot of the S. M. N. had answered the single whistle of the T. with a single whistle, he starboarded his wheel.</p> <p>2. If the account of the pilot of the T. were true, he was in fault, because as soon as he saw that the S. M. N. after having answered his whistle with one whistle, was running down on him with a starboard wheel, he should at once have stopped and backed, instead of increasing his speed.</p> <p>3. On the evidence, the S. M. N. blew two whistles before the T. blew one. and at that time the green light of the T. alone was visible, and the S. M. N. did not answer the single whistle of the T. with a single whistle.</p> <p>4. The T. was solely in fault for the collision.</p> <p>[On appeal to the circuit court, the decree of this court was affirmed. Case unreported.]</p>

<p>Case No. 12,668.</p> <p>Wharfage — Lien—Seizure of Government Propertt — Costs.</p> <p>1. A steamboat, owned by the municipality of the city of New York, and employed in transporting the harbor police, is exempt from liability to seizure to enforce a claim for wharfage in the admiralty.</p> <p>[Cited in The Fidelity, Case No. 4,757.]</p> <p>2. The libellant having asked no costs but disbursements, no costs but disbursements were awarded against him on a dismissal of the libel.</p>

This case came before this court by appeal from the district court, in which a petition was filed on the 4th of December, 1828, by Davis & Brooks, merchants of the city of New' York, stating that they were owners of one-half of the brig Seneca, then lying in the port of Philadelphia, and that the remaining half part belonged to Captain Henry Levely; that Captain Levely had had possession of the brig for several months, having the sole control thereof, and had proceeded on…

This was an aetio-n on the case [by Alfred T. Serrell against Denmark F. Collins and Abijah Pell] tried by Judge Ingersoll and a jury, for the infringement, of letters patent [No. 5,575] for “improvement in machinery for mating moldings,” granted to the plaintiff May 16, 1848, reissued January 7, 1851 [No. 187], and again reissued June 21, 1833 [No. 243].

Bill in chancery [by Richard H. Sessions, Daniel H. Sessions, and Sandford C. Faulkner against John M. Pintard], for an injunction. determined before the Hon. DANIEL RINGO, District Judge, holding the circuit court. Absent the Hon. PETER V. DANIEL, Associate Justice of the supreme court.

Action for damages. Demurrer to petition on the ground that the city is not liable in the absence of ah averment that it had notice of the defect in the street which caused the injury, for which the plaintiff sues.

Action on four policies of insurance: two on the cargo underwritten, for 11,000 dollars, and the other valued at 1,000 dollars, on board the William, at and from New-York to Bara-coa, Nevitas, and Matanzas, in the island of Cuba, and back; to return one per cent, for all ports she shall not stop at; declared, in a written clause, to be on goods and specie, . both or either valued on the voyage outward at 12,000 dollars, with the usual printed clause of warranty against any…

<p>Case No' 12,676.</p> <p>Seamen’s Wages — Misconduct or Mate— Abandonment op Watch — Disrating.</p> <p>[1. For the mate, during his watch in the night, to go below and turn into his berth, leaving the ship with no officer in command of tiie watch, is sufficient, when unexplained or unexcused, to justify the master in disrating him. and sending him forward as one of the crew.]</p> <p>\2. Where it is shown that the mate was in his berth during the time for his watch on deck, it is not necessary to prove affirmatively that he was called, on the change of the watch, but it will be presumed, until the contrary is shown, that the ordinary routine was pursued, and the burden is upon him to show any facts which would excuse or exculpate him for the apparent neglect of duty.]</p>

In admiralty. Tbis was an appeal from a decree of the district court [of the United States for the district of Indiana] dismissing a libel filed by Henry Huber and others for salvage against seven coal barges found adrift on the Ohio river. argued: First That salvage services were in their nature the same everywhere, and as meritorious when rendered upon a river as on the high seas; and that the decisions of the supreme court of the United States, following the case of The…

This was an action of assumpsit, originally commenced in the state court, and removed from thence to this court, the plaintiffs [the president, directors, etc., of the Seventh Ward Bank], being a corporation in New York, and the defendant [Edward Han-rick], a citizen of Alabama. The action was brought on the following promissory note: “New York, October 31, 1835.

The following tacts appeared: On the forenoon of the thirty-first day of May, 1804, the United States public armed steamer Vicksburg, attached to the North Atlantic blockading squadron, and then cruising on what was known as the outside blockade, discovered a steamer lying to, some fifty miles from the coast of North Carolina.

This was a bill in equity [by Joshua S. Severance against the Continental Insurance Company] to reform a policy of insurance, and for general relief.

<p>'Writ of error to the Clark circuit court.</p>

“Ambrose H. Sevier (trustee for Matilda Johnson), a citizen of Arkansas, plaintiff, complains of Addison White, a citizen of Alabama, and Milton White and Newton White, citizens of Virginia, defendants of a plea of debt, that they render to the plaintiff the sum of $60.000, his debt, and $15.999.91) for his damages, and $00 costs, with interest, &e.; for that, theretofore, to wit, on the 27th day of April, 1869, at a term of the circuit court of the county of Desha, in the…

This was a libel by a material man for the price of materials furnished for, and used in the construction of a new ship.

[This was a libel by Charles Sewell and others against nine bales of cotton, to recover salvage compensation. The case was referred to Thomas Hart, Jr., Esq., as commissioner, to report upon the question of the distribution of the salvage award. The report filed by him was as follows:]

This case came tip on a writ of habeas corpus issued, on the petition of James W. Seymour, to the sheriff of the city and county of New’ York, in whose' custody he was held.

This was an action by Mary A. Seymour for damages for personal injuries caused by the alleged negligence of the defendant. About ten o’clock in the forenoon of the 30th of August, 1870, the plaintiff purchased of the defendant a passenger ticket from Chicago to Galesburg, and proceeded to the defendant’s train of cars.

On July 19, ‘1873, judgment was recovered by the plaintiffs in this action against the Phillips & Colby Construction Company, in the circuit court of the Northern district of Illinois for $119,061.46 damages, and - $130.92 costs.

[These were two suits in equity, by William H. Seymour and Dayton C. Morgan, against James S. Marsh & Co., of Lewisberg, Pa., and Marsh, Grier & Co., of Williamsport, Pa., respectively. for the infringement of the Seymour patent and the Palmer and Williams patent.

This was a bill in equity [by William H. Seymour and Dayton S. Morgan, against David M. Osborne, William A. Kirby and others) to restrain the defendants from infringing the following letters patent: 1. Letters patent [No. S,192] for an “improvement in harvesting machines,” granted to Aaron Palmer and S. G. Williams, July 1. 1851, reissued to them April 10, 1855 [No. 305], and again, in two divisions (Nos. 4and 5), January 1, 1801 [No. 1,110).

The plaintiffs [Mark T. Seymour and others] recovered a judgment in this court against the Phillips & Colby Construction Company, in July, 1873, and thereupon the defendants in that case sued out a writ of error to the supreme court of the United States, and gave a supersedeas bond, to which the defendants in this case are parties, as obligors.

This was an action of ejectment [by 'William H. Seymour and others, against Daniel Sanders and wife] to recover possession of eighty acres of land in Goodhue county, Minnesota. The plaintiffs allege that they were owners of the land November 1st. 1S72, and that the defendants unlawfully detain the same.

This was a libel by George S. Townsend, owner of the steam tug Mary, to recover the damages sustained by her in a collision with the steamboat Shady Side, which occurred on the 16th of March, 1875.

<p>[Appeal from the district court of the United .States for the Southern district of New York.]</p> <p>This was a libel in rem, filed in the district court, for a collision. That court decreed for the libellant, with costs [Case No. 12,691], and awarded to him $5,000, as the value of his tug at the time of her loss, as a total loss, with interest; $600. as the expense of raising her. with interest: $250 for the time and disbursements of the libellant, after the collision. in finding his tug and preserving her; and $300 for her furniture lost, not appurtenances, with interest; in all, $6,803.10. for which amount, with interest, and $720.37, costs, being, in all, $7.016.05, a decree was entered. The claimant appealed to this court. This court found the following facts: “At about eight o’clock in the morning of March 16, 1875. the steam tug Mary, owned by the libellant, and which had been laid up the night before on the upper side of pier 52, East river, New York, near the bulkhead in the slip between piers 52 and 53. left her berth to back across the slip, and take on her fenders, either at pier 53, or at a brig lying alongside that pier. The brig lay at the lower side of the pier, with her bow toward the bulkhead of the slip,. and her stern about seventy feet inside the outer end of the pier. The brig was about one hundred feet long. Pier 52 was about two hundred feet long, and pier 53 about two hundred and eighteen. The slip between them was about five hun-dren and fifty feet wide. The tide was strong ebb, and a thick fog was prevailing. The Shady Side was a side-wheel steamer, running on a ferry between pier 22, East river, and Morrisania. She left her pier at 7.45 that morning, bound up the East river, on a trip to connect at Morrisania with the Port Chester Railroad, at 8.25. When she was about opposite Catharine street, the fog growing thicker, she was slowed down, and her course, which, to that time, had been well-out in the river, going up parallel with the ends of the piers, was changed so as to head, as was1 supposed, about, for the end of pier 53. That pier could not be seen at the time, and the course was shaped by compass. .At pier 38 the fog lighted up again, and she was. run at full speed until she reached pier 45, when, the fog again becoming thicker, she was slowed once more, and her course changed. so as to bring her in nearer the piers. She passed pier 52 not a great distance away, and headed on her course, which would take her somewhat inside the end of pier 53. That pier could not then be seen from her. When the Shady Side was passing pier 52, the Mary was in the slip, about halfway across from pier 52 to the brig. She lay a little angling across the slip, her stern being nearer the brig than her bow. Her stern was not then as far out toward the end of the pier as was the stern of the brig. Her engine was stopped, though she still had a little sternway on. The intention was to have her taken by an eddy in the slip over towards the brig. The wheelsman on the Shady Side first saw the Mary when he, in the pilot, house, was about opposite, or a lit-tie past, pier 52. The attention of the captain was at once called to the Mary, and he rang the bell to stop and back, and hove the wheel hard over to starboard. The Shady Side was at the time headed for the Mary, and under strong headway. The Mary, seeing her coming, commenced backing, but, before the Shady Side could be stopped, or the Mary got out of the way, the vessels came together, the Shady Side striking the Mary on her port side, about twenty feet aft of the stem, cutting into her nearly as far as the keel. The force of the blow was such as to throw the captain of the Mary, who was standing on the outside of the pilot house, and another man on deck, overboard. The engineey.o’f the Mary got on board the Shady Side, without shutting off his engine, which was backing. The engine kept up its backward motion until the vessels got separated,. and then the Mary was carried about two-thirds the way across the river, and down as far as the bridge pier, where she sank. The ¡Shady Side kept on under headway until she came within a few feet of the brig. When she stopped, she was headed so as to strike the brig about fifteen feet from the stern. The collision occurred a considerable distance inside the ends of the piers. The Mary did not sound her whistle when she left her berth, or at any time while moving in the slip. She at no time went outside the slip. The Mary was about sixty-eight feet long, and the Shady Side about one hundred and sixty-eight. Some time was spent in searching for the Mary, after she sank. She was found in very deep water, and in a much frequented part of the harbor. Some difficulty was experienced in getting parties willing to contract for raising her. She was at last raised, however, and taken to the Hoboken flatB. The price paid for this work was six hundred dollars. While she was lying on the flats, an effort was made to have the claimant agree that she should be considered a total loss, and the rights of the parties determined accordingly. The claimant not assenting to this, the contractors for raising her commenced a suit, against her, in admiralty, to recover the amount due them. This was done with the consent of the libellant, and, a decree having been obtained for her sale, she was bid in by the libellant for eighteen dollars. After this was done, the libellant paid the debt. He made no defence in the admiralty suit. Soon after the purchase was made at this sale, she was taken by the li-bellant to a dry dock in New York. where some repairs were made. But little was done, however, and she was taken down to pier 52. After lying there awhile, she was removed to a small creek on 'Long Island, and there beached. When she was raised she was not worth repairing. The cost of repairs, added to the expense of raising, and a proper allowance for demurrage, would amount to more than she would be worth when repaired. The value of the Mary, at the time of the collision, was thirty-five hundred dollars. Her value when raised was equal to the expense incurred in searching for and raising her, but no more."</p>

This was a suit [by Frank Sbaefer and others] against the defendant [Edgar Ketchum] as collector of internal revenue for the Ninth district, New York, to recover certain tax claimed to have been illegally collected on a quantity of lager beer.

<p>Case No. 12,694.</p> <p>Bankruptcy— Voluntary Petition — Delay in Surrendering Assets. — Custodian.</p> <p>Where debtors had been adjudged bankrupts on their own petition, but delayed to surrender their assets to the register, held, that an order should be issued for the immediate surrender thereof to the register, and the appointment by him of a proper custodian.</p> <p>[Cited in Re Brinkman, CaBe No. 1,884.]</p> <p>[Cited in Williams v. Merritt. 103 Mass. 187.]</p>

<p>[In the matter of Nathan B. Shafer and ' John S. Wesselhoefft, bankrupts.]</p>

Mr. Hugh Butler presented the petition of M. A. Sliaffenburg for a writ of habeas corpus. The petitioner was the late United States marshal for the territory of Colorado, and was convicted by the United States district court under an indictment founded upon section 5438 of the Revised Statutes of the United States, and sentenced to imprisonment for the term of two years in the penitentiary of the state of Kansas.

<p>[This was a bill by Shaffer against Friteh-ery & Thomas, praying that certain judgments be set aside.]</p>

<p>[This was a bill by Eliza Shakeley and others against A. M. Taylor and others. Heard on demurrer to the bill.]</p>

These were libels filed by the owners and the master of the schooner Adelaide, to recover the damages occasioned by a collision between her and the ship Shakspeare, which occurred on the night of January 4. 1870, off Barnegat.

<p>In bankruptcy.</p>

<p>Case No. 13,702.</p> <p>Shipping — Damage to Cargo — Peril op the Sea —Negligence—Burden op Proof— ™ Duty op Master.</p> <p>1. A ship took on board at Manila a large quantity of mats of sugar, to be brought to New York, under bills of lading containing the usual exception of perils of the sea. On the voyage she met with heavy weather and sprung a 'leak so that, after having jettisoned a part of her cargo, she arrived at her dock with ten feet of water in her hold, her crew having become so worn out by labor that after she had passed quarantine a gang of fresh men was sent to her, who were, however, able to control the leak with the ship's pumps. The consignees of the ship at once agreed with the owner of a steam pump and the pump was put on board the ship, and by the next morning the water in the ship had been pumped down as far as the suction pipe of the steam pump reached, which was just about at the bottom of the sugar. During the following day, the pump, which was in charge of an engineer and fireman employed by its owner, was worked at intervals as the water rose high enough to reach the suction pipe. The discharge of the cargo had been commenced and continued during that day. During the following night, none of the ship’s officers or crew being on duty, the steam pump stopped working, and the water again flooded the lower hold where the sugar was stowed. The consignees of the sugar filed a libel against the ship, claiming to recover damages for a failure to deliver the sugar In like good order as when received, as she had contracted in the bills of lading to do; and the owners of the ship set up as a defence that the damage was occasioned by peril of the sea. Held, that, the leak being shown to have been a peril of the sea. the ship had made out her defence as to the cargo jettisoned, and ns to the sugar washed out by the leak and the injury caused by the leak to that which remained, up till the time when the water was first pumped out of the ship by the steam pump.</p> <p>[Cited in The Sloga. Case No. 12.950: The Chasca. 23 Fed. 160.]</p> <p>2. The duty of the ship, on arriving at the dock, was to use whatever extraordinary means were accessible to prevent further injury' to the cargo; and that the employment of the steam pump was an act of the master, in performance of that duty, and not an act of the master as agent of the cargo in extraordinary peril.</p> <p>[Cited in The Charles J. Willard. 38 Fed. 762.]</p> <p>3. The persons working the steam pump were therefore the agents of the ship and not agents of the owners of the cargo.</p> <p>4. The ship, therefore, was resoonsible for the proper performance of duty by those in charge of the steam pump.</p> <p>5. Although the original leak was a peril of the sea. the owners of the cargo, having shown that the leak could have been controlled by the use of means which were available, and that such leak had not been controlled, had made out a case of negligence on the part of the ship.</p> <p>6. The ship, having failed to give any explanation of the stoppage of the steam pump on the night in question, was liable to the owners of the cargo for all the loss and damage to the cargo which arose from the flooding of the ship on that night.</p> <p>7.The ship was liable for ifll the loss of sugar occasioned by the suction pipe being so short that the water must rise on the cargo in order to be within reach of the pump.</p> <p>TNOTE. The claimants desired to introduce evidence before the commissioner to whom the case was referred, pursuant to the above decree, tending to show that the water did not rise so high on the morning of the 29th as it had been previously, and an application was made to the district court for a reconsideration of this finding of fact, and to ascertain whether this question was open upon the reference. The court decided that this question was immaterial. 4 Fed. 925.</p> <p>(The commissioner assessed damages at $30.-328.63. For a hearing on exceptions to this report, see 16 Fed. 570.J</p>

<p>Case No. 18,704.</p> <p>Deposition — Custody—Rejection.</p> <p>1. The law requires the deposition taken under the act of congress [4 Stat. 197], to be re-, tained by the officer, until he deliver the same into court, or shall, together with a certificate of the reasons for taking it, etc., be by him sealed and directed to the court.</p> <p>[Cited in U. S. v. Tilden, Case No. 1G.320.]</p> <p>2. The law did not intend that either party should have possession of the deposition, until it shall be published by the special or general order of the court. A deposition not so put up and directed, will be rejected.</p>

<p>Case No. 12,705.</p> <p>Counsel Fees — Admibaltt—Payment out or Fund in Court.</p> <p>[A libel was filed by a mortgage lienholder against the proceeds of a vessel sold under decree, in suits by material men, seamen, and others, general maritime lien creditors. Had the validity of the mortgage lien against the proceeds been established, it would have absorbed the total proceeds, leaving nothing to the general lien creditors. Held, that the counsel who successfully resisted the claim of the mortgagees was entitled to a fee out of the proceeds. Fee of S250 awarded.]</p> <p>[Cited in Re Schwab, Case No. 12,498.]</p> <p>[See note to Case No. 12,483b.]</p>

The handwriting of a party cannot be proved by a comparison with the handwriting of his power of attorney filed in the cause, there being no proof of the latter. offered to prove the handwriting of Fox, by comparing it with his signature to the power of attorney filed in this cause, considering it as a matter of record.

<p>This was a bill in equity [by John R. Shap-ley against James RangeleyJ. Among other things it alleged, that John Spring and Olive Spring, his wife, on the 4th of January, 183U, mortgaged to the president, directors. and company, of the Saco Bank, the mansion-house of said Spring, and several lots of land adjoining, and a three acre piece, being the same bargained to Thomas Gerrisli. The object was to secure a note from Spring, to said corporation, of the same date for $6000. payable in two years with interest. The bill further averred, that on the 14th of April, 1832. Spring conveyed to Ether Shepley his right to redeem said three acre piece, and which right on the 5th of April, 1843, said Ether conveyed to the complainant. It was then alleged, that the bank on the 9th of May or June, 1833, through said Ether Shepley, their attorney, entered the mansion-house of Spring, to foreclose said mortgage, but did not go upon the three acre piece, which was near in the same town, but separate; and leaving said Spring still in possession of all the mortgaged premises. It was next alleged, that the bank, on the Bull) of September. 3833, conveyed all its property in trust to Jona. King, George Thatcher, and Samuel Hart-ley, and on the last day for the redemption of the mortgaged premises, said Spring applied to King, the business member of the trustees, and ottered to settle the amount due. But as most of the payment was proposed to be made by a check drawn on the Manufacturers’ and Traders' Bank in Portland by David Webster, payable at a future day, it was arranged to postpone the completion of the business till that day; when the check being paid, and the balance in money, the notes and mortgage deed were the next day given up to Spring, and a release executed to said Webster, the drawer of the check, of all the premises and the rights of the Saco Bank therein. This was done at the request of Spring, and through his agency, in the absence of Webster; and the deed was drawn by said Ether Shepley, and acknowledged before him. It was further averred, that Webster, on the 18th of April, 1838, conveyed his interest in the premises to one Daniel Burnham, and he conveyed the same to Rangeley, the respondent. That Rangeley had also, on the 9th of July, 1839, extended an execution on the same for a judgment recovered by him against Webster; that the mortgaged premises, independent of the three acre piece, were worth more than the money due Webster for his advances; and after asking a disclosure on certain points, the bill prays that the three acre piece “stand discharged, redeemed, and relieved free of, and from said mortgage, and that the levy of said Rangeley on the same, may be declared to be inoperative in law, and that Rangeley may be required to release all right to your orator to said three acres, or be perpetually enjoined from selling the same to the injury of the title of your orator.” The answer of Rangeley admitted most of the facts averred, and, among other things, the continued occupation of all the premises by Spring -to this time; but denied that without the three acre piece, they- value was sufficient to pay the amount due to Webster from Spring, and averred that the title in the whole passed to Webster from the Saco- Bank, and had been attached by Rangeley in his suit against Webster, before Webster conveyed to Burnham, and was now by his extent vested absolutely in himself. Rangeley. It is not deemed important here to notice the other pleadings or the evidence in the ease; but they will hereafter be referred to when material to the points on which the bill .is disposed of. [See Case No. 12,756.]</p>

<p>Case KTo. 12,708.</p> <p>Prize — Violation or Blockade — Enemy Property — Loyal Owner — Bringing in Captured Crew.</p> <p>1. Vessel and cargo condemned for a violation of the blockade, aDd as enemy property.</p> <p>2. The master, who was part owner of the vessel, and who was the only witness examined in preparatorio, testified that he was ignorant of the blockade: but the court, on all the facts, held that he knew of it.</p> <p>3. A loyal citizen, or a resident of a loyal state, cannot, tvith impunity, employ his vessel in trade with the enemy, or in favoring the insurrection.</p> <p>4. The omission of the captors of a vessel to bring in the captured crew will not inure to defeat a capture by a government vessel.</p>

2 [Equity. The bill in this case, filed by the assignee in bankruptcy of Stokes & Co., set up that between July. 1874, and January 16,1878, Stokes & Co. issued receipts for goat skins and sumac, purporting to be stored upon the premises of Stokes & Co.; that the holders of said receipts obtained from defendant loans, pledging said receipts as security therefor; that at the time of the advances an agent of defendant examined the goods, ascertained that they corresponded with…

<p>Case No. 12,709.</p>

<p>Case No. 12,710.</p> <p>PoBiac Lands — Patent to Husband and Wife— Names.</p> <p>In an action at law, a patent to a married settler, under the donation act of Oregon, and his wifq, India, can not be contradicted and avoided by showing that the true wife of such settler was another person named Angeline.</p> <p>[Cited in Oahn v. Barnes. 5 Fed. 332; Cutting v. Cutting, 6 Fed. 268; Pengra v. Munz, 29 Fed. S36J</p> <p>[NOTE. A suit was subsequently brought by the defendants to enjoin the plaintiff from enforcing the judgment obtained by him in the above action. There was a demurrer to the bill, which was overruled, and the relief prayed for was granted. Oase No. 13.410.]</p>

<p>Case No. 12,711.</p> <p>NOTE. There were a number of similar cases, but this was the only one tried. The principles embodied in this decision were affirmed in the supreme court of the United States, in the case of De Treville v. Smalls, April term, 1879., That opinion has been followed in three' later cases by the same court. See 98 U. S. 517, and 99 U. -S.- 441 and 496. -Judge Emmons dictated the syllabus in this case as he did in Memphis v. Brown [Case No. 9,415]. The case was first published in the Western Jurist</p>

This was an appeal from a sentence of the district court, entered, pro forma, against the appellant.

<p>Case No. 12,713.</p> <p>Judgment — Default — Case Reopened — Execution Issued.</p> <p>If execution issue before the end of the term in which the judgment was rendered, it may, on motion, be quashed and the judgment rescinded.</p>

The following is the substance of the agreed statement upon which the case was argued: This is an action on a policy of insurance, issued by the defendant upon the life of the plaintiff’s intestate, Noah G. Shat-tuck. The plaintiff [Mary W. Shattuck] is a citizen of the state of Massachusetts.

[This was a libel by George Shaw and others against the steamboat Bridgeport (Charles Weeks and Robert Haydock, claimants), to recover damages sustained by collision.]

<p>Case No. 12,719.</p> <p>Customs Duties — Fees to Collector — Appeal— Action to Recover.</p> <p>By the 15th section of the act of June 30, 1864 (13 Stat. 215), the decision of a collector of customs, as to fees, charges and exactions claimed by him in the performance of . his official duty, is declared to be final and conclusive, unless an appeal is taken to the secretary of the treasury, and it is provided that no suit shall be maintained to recover any such fees, &e., alleged to have been erroneously or illegally exacted, until the decision on such appeal is had. A vessel from a foreign port, with dutiable goods on board, arrived at New York, and-was there sold, under a décree on a libel in admiralty, to the plaintiff. The duties on the goods not-being paid or secured,-the inspectors in charge, under the order of the collector, took the goods to the publ1'- stores, according to the provisions of section' lJ of the act of March 2,-1799 (1 Stat. 669), and of the act of March 2,-1861 <12 Stat. 209). The collector exacted from the plaintiff the fees, charges and expenses connected with the removal of the goods, as a condition of granting to him a clearance for the vessel for an -outward voyage. The plaintiff paid the amount, under protest, but did not appeal to the secretary of the treasury, and then brought this suit to recover back the amount paid: Held, that, although the exaction waR in fact, not warranted by law, the suit could not he maintained, because of the failure to appeal to the secretary of the treasury.</p> <p>[Cited in Hedden y. Iselin, 31 Fed. 270.]’</p>

<p>[Appeal from the district court of the United States for the Southern district of New York;]</p> <p>This was a libel in personam, filed in the district court, to recover wages' due to the libellant [Albert E. Shaw] as master of a vessel owned by the respondent [Thomas Collyer]. The district court, at the hearing of the cause, heard sufficient evidence to show that the libellant had, as master of the vessel, been in the employ of the respondent, and that the principal question was as to the amount due for the service, if any, and referred it to a commissioner to take proofs as to the nature, extent,' and value of the (service, and as to the payments made, or other deductions to be allowed, if any, and report thereon. The cage was heard; accordingly,- before the commissioner, and a balance was reported in ’favor of the libel-lant, of $334.74, which report was subsequently confirmed by the district court, and a decree was entered for that amount against the respondent [case unreported], who then appealed to this court.</p>

This was a libel for freight upon a charter-party. In December, 1S5S, the libellant chartered the schooner B. F. Reeves, of which he was master, to the respondent, for a voyage from North river, North Carolina, to Wood’s Hole and Boston, with a cargo of ten hundred and thirteen cedar spars, for buoys, to be landed in part at Wood’s Hole, and the remainder in Boston, for the round sum of $1000, to be paid at said Wood’s Hole and Boston, in proportion to the amount of cargo to…

<p>Case No. 12,721.</p> <p>Seamen — Wages—Surgeon—Decrease in Rise.</p> <p>A surgeon ships at Philadelphia, in time of war, for Bourdeaux and back again. While the ship is at Bourdeaux, peace takes place. The ship returns to Philadelphia, which terminates the voyage. The surgeon’s wages shall not be lessened on account of the decrease of the risk on the homeward voyage.</p> <p>[Cited in Gurney v. Crockett, Case No. 5,874; . Waring v. Clarke, 6 How. (40 U. S.) 480.]</p> <p>An appeal — and the court of appeals confirmed the above sentence; and gave the ap-pellee costs of suit, and interest on his wages, from the date of the decree in the admiralty.[Case not reported.]</p>

This was a petition by Jane Shaw, wife of Alpheus Shaw, who was decreed a bankrupt March 2, 1842, praying that certain notes, which had descended to her from her father, and which were included in the schedule of the bankrupt’s property annexed to his petition and delivered to his assignee [Nathaniel Mitchell], may be re-delivered to the administrator of her father’s estate, in order that the same may be administered by him and distributed to her as her distributive portion…

<p>Case No. 12,723.</p> <p>Insurance — Fjbe — Loss — Examination op As-subed — Pboof op Loss — Fbaud— Setting Aside Vebdiot.</p> <p>1. The examination of an assured who claims-loss by fire under an insurance policy, stipulating that he “shall, if required, submit to an examination under oath by any person appointed by the company, and subscribe thereto when reduced to writing,” should be written by a disinterested magistrate, and not by the agent of the company.</p> <p>2. Such examination, taken at a late hour of night, when the assured- is unwell, and written by the agent of the company, carries with it a suspicion that it may not fairly state the whole truth.</p> <p>3. A verdict wili be set aside, when the jury appears to have, been influenced by passion, or prejudice, or unwittingly to have fallen into a plain mistake; but it will not be set aside because it does not accord with the views of the court.</p> <p>4. Falsehood and fraud by an assured in his proof of loss required by a policy of fire insurance, containing the usual provision that such fraud shall invalidate the policy, bar his suit upon the policy, and when proved upon the trial, require the court to set aside any verdict in-favor of the assured.</p>

<p>Case No. 12,726.</p> <p>Charter Party — Consignee — Presumption- of Knowledge — Freight Money — Nudum Pactum — Costs.</p> <p>1. A consignee of a charterer, and dealing with him in that character, must be presumed to know the contents of the charter-party.</p> <p>[Cited in Hatch v. Tucker, 12 R. I. 505.]</p> <p>2. He cannot deal with the charterer as owner for the voyage, when by the charter-party the entire possession and control of the vessel remains with the master and owner.</p> <p>3. If the consignee, in such case, credits the freight on the consignment to him, on debts owing him by the charterer, he will not thereby acquit himself of liability to the master therefor.</p> <p>4. The payment to the charterer will be on the responsibility of the charterer, and not on that of the vessel or her owner.</p> <p>5. The master, notwithstanding any interference or direction of the charterer, has a right to retain the goods until his lien shall be satisfied, and he may sue the consignees after delivery to them of the goods, and recover the freight, at least to the amount due on the charter-party.</p> <p>6. Where the consignee has notice that freight must be paid to the master and not to the charterer, it imposes the like obligation upon him as if so reserved in the bill of lading.</p> <p>7. A consignee has no right to appropriate' moneys due for freight to satisfy advances made by him to the charterer, although the bill of lading directs the freight to be paid to the consignee. But a direction to the consignee by the master, to pay a sum out of the freights to the charterer, will be equivalent to payment to the master.</p> <p>8. An agreement by the master to pay a debt of the charterer to the consignee, without any consideration, is a nudum pactum, and void.</p> <p>9. A receipt, alleged to be given through mistake, may be explained by parol evidence.</p> <p>10. A libellant who demands an entire sum, when part of it has been paid according to his directions, and compels the respondent to defend, impairs his equity to costs in a court of admiralty.</p> <p>11. A respondent who contests the entire demand of a libellant, when a portion of it is justly claimed, although he defeats the suit in the main matters in contestation, loses his equity to costs.</p> <p>12. Admiralty courts, in adjudging costs in their discretion, regard the essentia] merits and equities of the parties rather than the result of the litigation.</p> <p>[Cited in brief in Lubker v. The A. H. Quinby, Case No. 8,586.]</p> <p>13. They may withhold costs from both parties when neither proposes to do what is substantially just between them without litigation.</p> <p>[Cited in The Sarah Harris, Case No. 12,346.]</p>

[This was a bill in equity by the Shaw & Wilcox Company of Bridgeport, Connecticut, against George W. Lovejoy, to enjoin the infringement of reissued letters patent No. 1,-031, granted to J. Shaw April 5, 1864, the original letters patent, No. 35,842, having been granted July 8, 1802.]

In bankruptcy. The petition herein was filed by J. H. Heinsbeimer and others against Patrick Shea and AA'illiam Boyle, June 7, 3869, charging that they, being partners, traders, etc., committed an act of bankruptcy, in this, •‘that within six months next preceding the date of this petition, the said Patrick Shea and AYilliam Boyle did commit an act of bankruptcy within the meaning of said act, in that they did, on the 2Sth of Jan-uaiy, 1869, fraudulently suspend and stop the…

<p>Case No. 12,729a.</p> <p>Infaxcv — Contracts — Partnership — Ch arter-Party — Breach -Acceptance op Notes —Amount of Recovery.</p> <p>[1. A minor partner is not liable on partnership contracts.]</p> <p>[2. The acceptance of notes as a liquidation of a claim for breach of charter-party, but not in satisfaction thereof, does not bar the admiralty jurisdiction, if the notes are surrendered into court for cancellation but the amount of the recovery is fixed by the notes.]</p>

<p>Case No. 12,730.</p> <p>Admiralty — Condemnation in Foreign Court— Right to Inquire into.</p> <p>Condemnation in a French court of admiralty of property carried into the ports of an ally, connot he inquired into by the courts of this country.</p> <p>This decree was affirmed, on appeal to the circuit court. LCase unreported.'l</p>

Suit by [Sumner W. Shearman and others] assignees in bankruptcy [against Osmer A. Bingham and others] to recover money alleged to have been paid to the defendants by the bankrupt as a preference. The case was heard on an agreed statement of facts, the material parts of which appear in the opinion.

Assumpsit by [Sumner W. Shearman and others] assignees to recover money alleged to have been paid by the bankrupts to the defendants [Osmer A. Bingham and others] by •way of preference. A plea in abatement set up that the writ did not show jurisdiction in this court, and that in point of fact there was none, because the proceedings in bankruptcy were pending in the district court of Rhode Island.

This was a petition for a habeas corpus on account of what was averred to be an unlawful imprisonment of the petitioners [Thomas Sheazle and others] in Leverett Street Jail, by means of an illegal warrant from James Buchanan, secretary of state, executed by the marshal of the district of Maine.

[In'the matter of Daniel Sheehan, a bankrupt] On motion to dismiss the petition for adjudication of bankruptcy, and all the proceedings had thereunder. The petitioning -creditor’s debt is alleged in the petition to be founded on a judgment of the circuit court of the county of Wayne, state of Michigan, for six thousand fire hundred dollars in her favor and against the alleged bankrupt, for damages for a breach of promise to marry. The judgment was entered March 7th, 1873.

This matter was heard upon a motion on behalf of the petitioning creditor: First, for an adjudication of bankruptcy against the respondent; or, second, for a reasonable allowance to the petitioning creditor for disbursements in the way of counsel fees and other expenses incurred, the respondent [Daniel Sheehan], having tendered payment of the petitioning creditor’s claim, and shown that there are no other creditors to the requisite amount to proceed against him under the…

Case, for a malicious prosecution. To set aside an office judgment at the third term after it was rendered, the defendant pleaded a special justification which went to show probable cause for the prosecution. The counsel for the plaintiff objected to the receiving the plea, and cited Bull. N. P. 14; Sutton v. Johnstone, 1 Term R. 493; Cox v. Wirrall. Cro. Jac. 193; Downman v. Downman, 1 Wash. [Va.] 29; Farmer v. Darling, 4 Burrows, 1971.

<p>Case No. 12,742.</p> <p>Intebvexing Creditobs —Dismissal of Proceedings.</p> <p>1. When, on the return day, or adjourned day, of a rule to show cause in a ease of involuntary bankruptcy, the petitioning creditors fail to appear, or to proceed, any creditors to the required amount may intervene, and pray an adjudication on the original petition. It is not necessary that such intervening creditors should constitute one-fourth in number of the creditors, or represent one-third in value of the debts due by the debtors.</p> <p>2. The dismissal of proceedings in invitum is regulated by the forty-first section of the act [of 1867 (14 Stat. 537)]. A motion to dismiss will be denied unless the requirements of the act be complied with. The court will withhold its approval whenever the granting of the motion will defeat tne object, or contravene the policy of the act. Where a motion to dismiss is denied, and the petitioning creditors decline or omit to proceed in the cause, any creditor of the required amount may intervene and pray an adjudication; and this is allowed as the necessary result of the provisions of section 41, and independently of the express permission given in section 42.</p>

The declaration was served on the 11th of April; a rule to plead in twenty days or judgment was entered, and on the 4th of May, on proof of personal service of the declaration, judgment was entered, and habere facias possessionem issued. On the 16th of October. 1827, Mr. Rawle, Jun., moved to set aside, on his affidavit, that before any entry of judgment, he called on the clerk, and directed him to enter an appearance for the defendant, which he promised to do.

These two eases were heard together. The first was a libel against a part-owner of the ship Uriel, to recover wages, as first mate, from San Francisco, via Calcutta, to Boston, at .$50 per month, from J.une 20th. 1851. to April 26th, 1852; the second, a libel against the master of the Uriel, to recover damages, for a wrongful discharge of the libellant, at Calcutta.

In this case [by J. A. Sheirburn against . W. L. Hunter and others] the intervention of a jury was waived, and the issues of fact as well as law submitted to the court.

<p>Case Ko¿ 12,746.</p> <p>Notes — Equities between .Original Parties — Rule in New York — Bankruptcy—Amount Provable — Following State Decisions.</p> <p>The bankrupt, in 1869, executed a note for ten thousand dollars, payable, in three years, to one C., for the purpose of settling an account between them. It was indorsed by C., and left in his nossession. A disagreement arose, however, about the items of the settlement, and no final agreement was made as to the disposition to be made of the note. One T. purchased the note before maturity, and without notice of any equities between the maker and payee, for one thousand five hundred dollars. All the parties were citizens and residents of the state of New York. In an action on the note in the state court, T, recovered a judgment for the whole amount of the note, which judgment was reversed on appeal and a new trial granted, unless plaintiff should consent to reduce the judgment to the amount paid by him and interest. On proof of claim, held, that the judgment of the appellate court was not a conclusive determination of the rights of the parties in this proceeding; that the note having been negotiated in the state of New York, and all parties being residents thereof, the rights of the claimant are controlled by the law of that state, and that in accordance with the decisions of that state, the claimant is only entitled to prove for the amount paid by him with interest.</p>

<p>Case No. 12,747.</p> <p>Bankruptcy — Dischakge — Fifty Per Cent Clause— Consent of Creditors — Debts Contracted before Jan. 1, 1869 — Judgment—Act June 22, 1874, Sec. 9.</p> <p>1. A voluntary petition in bankruptcy was filed on November 10, 1873. The only debt proved was a judgment against the bankrupt in favor of S., recovered March 1, 1873, which judgment was recovered on a former judgment entered on July 26, 1862, which was recovered on a promissory „ote endorsed by the bankrupt. The bankrupt applied for his discharge and S. objected that he could not be discharged, because the assets of his estate were not shown to be equal to 30 per cent of the debt proved and no consent of S. to his discharge had been given. Held, that the debt of S., under the ninth section of the act of June 22, 1874 (IS Stat. 180), was not the judgment but the endorsement. and was contracted prior to January 1, 1869.</p> <p>[Cited in Re Derby. Case No. 3,816; Re Townsend, 2 Fed. 563.)</p> <p>2. The bankrupt was entitled to be discharged without showing any percentage in assets, or any assent of S..</p> <p>[Cited in Re Gifford. Case No. 5,408.]</p> <p>3. The act of June 22, 1874, did not repeal any part of section 5112 of the United States Revised Statutes, or of any prior enactment embodied therein; except the provision requiring "fifty percontum of such assets.”</p> <p>4. The decision in Franeke’s Case [Case No. 5.046], is reaffirmed.</p>

This was an application for an injunction and a receiver, in a suit in equity [by Smith Sheldon and others against Henry O. Hough-ton], -,

This was an action to recover $15,804, paid by plaintiffs [F. H. Sheldon & Co.) to defendant [Samuel Swartwout], under the following circumstances: The plaintiffs are extensive importers, residing in this city, and in the month of April last, imported a quantity of cambric linen or Batiste handkerchiefs, by the ship Charlemagne, from France. The-handkerchiefs were cut off from the piece, and hemmed and stitched in France.

<p>Case No. 12,760.</p> <p>Bankruptcy — Attachm ent — Jcdg m ent — Li en .</p> <p>1. Where a creditor commenced suit, and attached goods and chattels of the debtor, and obtained judgment and an order of sale. of the attached property, and petition in bankruptcy . was subsequently filed and the debtor adjudged a bankrupt, the bankruptcy proceedings do not invalidate the judgment lien, although no execution or order of sale had been issued on the judgment.</p> <p>[Cited in Claridge v. Kulmer, 1 Fed. 402.]</p> <p>2. The attachment had become merged in the judgment, and section 5044 of the bankrupt act only operates to dissolve attachments pending when the bankruptcy proceedings are commenced.</p>

In equity. Motion for a provisional injunction to restrain the defendants from infringing letters patent [No. 18,635] for “an improvement in limekilns,” granted to Powell Griscom and Charles S. Denn, November 17, 1857, to which a specification of additional improvements was annexed February 23, 1858 [No. 192).

This was an action, of assumpsit brought by the plaintiffs [Philo ’S. Shelton and others] against the defendant [Arthur W. Austin], as collector of the port of‘Boston, to recover back certain duties, which, as they alleged, the defendant unlawfully exacted of them, and which they paid under protest.

<p>Case No. 12,753.</p> <p>Bankruptcy — Citizenship — Limitations — Proven Debt — Discharge—Who may Oppose.</p> <p>1. A debt against a bankrupt’s estate may be proven before a United States commissioner, although the bankrupt and creditor both reside in the same judicial district.</p> <p>[Cited in Re Merrick, Case No. 9.463.]</p> <p>2. A debt barred by the statute of limitations of the state in which the bankrupt resides, may still be proven against his estate in bankruptcy.</p> <p>[Cited in Re Cornwall. Case No. 3.250; Re Noesen, Id. 10.288; Nicholas v. Murray. Id. 10,223.]</p> <p>3. A creditor who. after making his deposition to prove his debt, retains possession of the deposition. and does not allow it to pass into the hands of the assignee in bankruptcy, is not a creditor who has proven his debt.</p> <p>4. Any creditor of a bankrupt may onpose the discharge, whether he shall have proven his debt or not.</p> <p>[Cited in Re Boutello. Case No. 1.705: Re Groome, 1 Fed. 469.]</p> <p>[Cited in Burpee v. Sparhawk. 108 Mass. 114.]</p>

This was a hearing, on proofs taken, on a petition filed by Hiram Fisher, assignee of the bankrupt above named, against Andrew V. Stout. Prior to the 26th ol' February, 1867, the bankrupt and one William D. Cochran were in partnership, perhaps with two •other persons, under the firm name of Shep•ard & Cochran, in the city of New York.

The facts of this case, as they appear in the pleadings and evidence, are shortly as follows: • .Tohn .Spring and Olive, his wife, on the 4th of January, 1830, mortgaged the land in controversy, together with other real estate, lying in the town of Saco, to the Saco Bank, to secure the payment of a note of $0000.

Upon petition of creditors, the debtor had been adjudged a bankrupt. Motion was made for leave to dismiss proceedings and to settle with the debtor.

This was a libel in personam, by [Francis Sheridan] the carpenter against [Edward S. Furbur and another] the master and first mate of a vessel, for an assault and battery upon the high seas. The libellant had been ordered by the first mate, several days before the assault complained of, to open a port-hole, which job was still unfinished, when the second mate, at the time the only officer on deck, ordered the libellant to assist in washing down the deck of the .vessel.

This action of replevin was discontinued at the last term (the return term), by the non-appearance of the defendants [King and Langley], no steps having been taken by the plaintiff to continue the process. now moved to reinstate it upon affidavit of himself, and one of the defendants, stating that the clerk was at the last term ordered to enter Mr. Ashton’s appearance for the defendant.

By section 1 of the bankrupt act, the Several district courts of the United States are constituted courts of bankruptcy, and the provision is, that they shall have original jurisdiction in their respective districts in all matters and proceedings in bankruptcy, and that they might hear and adjudicate upon the same, according to the provisions of the bankrupt act.

<p>Case No. 12,763.</p> <p>Courts —Jurisdictional Amount — Notes — Notice of Protest — Presumption.</p> <p>1. Jurisdiction is taken from the damages laid in the writ and declaration, and not from the amount due, proved by the plaintiff.</p> <p>[Cited in brief in Healy v. Prevost. Case No. 6,297. Cited in Yictor Sewing-Mach. Co. v. Mingos, Id. 16,936: Kanouse v. Martin, 15 How. (56 U. S.) 208; West v. Woods, 18 Fed. 665.]</p> <p>[Cited in Abbott v. Gatch, 13 Md. 335.] .</p> <p>2. A notice of the protest and non-payment of a note to the indorser, is good, if directed -to a post office where the party is in the practice of receiving his letters, though it may not be the nearest post office.</p> <p>3. A promise to pay by an indorser is presumptive evidence of notice, as it acknowledges a legal liability.</p>

<p>[This was an action on a note by Robert S. Sherman against Horace H. Comstock.]</p>

This was a bill in equity Tby Hoyt Sherman, assignee, against the International Bank and others]. tiled for the purpose of reaching certain assets which, it was alleged, belonged to the bankrupt, B. F. Allen, and which were then held by some of the defendants.

<p>Case No. 12,767.</p> <p>Collision — Vessel at Anchor — Inevitable Accident.</p> <p>1. A brig, a schooner, and a bark lay at a wharf at Galveston, Texas. A heavy storm arose, which broke the brig loose from the wharf, but she was brought up by her anchors about 75 or 100 yards from the schooner. Not long after, the bark was driven against the schooner, injuring her, so that there was danger of her sinking at the wharf. The master of the schooner thereupon, in order to save her, cut her adrift, but, before her .anchors could be let go, she was driven upon the brig, in spite of all efforts to the contrary. The owners of the brig filed a libel against the owners of the schooner to lecover for the damage: Held that, inasmuch as the act of the master, in cutting loose frcm the wharf, was a voluntary one, the collision was not an inevitable accident.</p> <p>2. The schooner was liable for the collision.</p> <p>[Cited in The Chickasaw, 38 Fed. 361.]</p> <p>NOTE. This decision was affirmed by the circuit court, on appeal, in August, 1873. In its opinion, the court (Woodruff, Circuit Judge) said: “I think the conclusion of the district court in this case was correct. In a voluntary endeavor to deliver the aopellants’ vessel and cargo from the .great peril of loss, the master cut her loose, in circumstances involving great risk.of collision with the respondents' vessel, and, after she was cut loose, he omitted to east her anchors, or put up a sail, or, in fact, do anything to arrest her, and for the .like reason, ■ namely, that taking such measures might prevent his delivering the vessel and cargo from the peril he was seeking to avoid. His acts and omissions in this respect were at the risk of his own vessel and her owners, and they are responsible. The master had no more legal right to do acts or omit precautions, which acts and omissions directly tended to injury to another, in order to save property to its owners, than he would have in order to earn property for them. On the question, whether the grounding of the libellants’ vessel and the resulting damage were* caused by the collision, the testimony is conflicting. But I find no sufficient reason for reversing the conclusion of the commissioner and of the district judge. The decree must be affirmed, with costs.</p>

Assumpsit, by Sherman, Hall and Co., against the Pennsylvania Railroad Company to recover the value of fifty-three sacks of wool. A stipulation was filed by counsel waiving a jury trial and referring all facts to the circuit judge under section G49-of the Revised Statutes (page 117), and requesting the court to pass upon, and find specially the facts alleged in the points submitted.

<p>Case Ho. 12,770.</p> <p>Bankruptcy — Securities prom Insolvent Debt- or — Assets—Receipt for Undelivered Goods — Securitt on Personal Property-.</p> <p>1. Where a creditor obtains a security upon property, the debt being incurred and the security obtained in good faith, making the security available at a time when the creditor knows that the debtor is insolvent does not prevent the security operating to the benefit of the credit- or.</p> <p>2. And wlipn in such case the security given the creditor was a receipt for coal.- not separated, but remaining mingled with other coal in the yard of the debtor, and the creditor took possession of such coal, after discovering the insolvency of the debtor, but before the filing of the petition in bankruptcy, held, that the assignee in bankruptcy could not maintain a suit to re■■•cover the value of the coal.</p> <p>3. Though the transaction was nothing more than security in the nature of a chattel mortgage on personal property remaining in the hands of the mortgagor for the benefit of the mortgagee, yet under the ruling of the supreme court it must be held, that the security can be maintained for the benefit of the creditor.</p> <p>•4. Clark v. Iselin. 21 Wall. [88 U. S.J 360, commented on.</p>

This case came on for trial upon the declaration, answer and reply thereto, and upon the facts as admitted by the pleadings, and as stipulated by the parties. The case being thus submitted, tlie court specially found the facts to be as follows, to wit: 1.

<p>[In the matter of Benson Sherwood, a bankrupt.]</p>

The register certifies that in the course of the proceedings the following question arose, to wit: The bankrupt in this case [Benjamin Sherwood], living at Honesdale, the county seat of Wayne county, filed his petition on the 30th day of July, 1867, and on February 6, 1868, the register certified to the court his conformity'to the bankrupt act.

<p>In equity. Suit [by Adiel Sherwood against Richard Burgess] to quiet title to real estate.</p>

After the decision in the case of The Emily [Case No. 4,452] the.claimant [Ebenezer B. Sherwood] brought an action in this court against the insurers of the Emily, to recover the.amount so decreed against that vessel, he having paid it.

[Appeal from the district court of the United States for the district of Massachusetts.] Libel [by William Sherwood against Isaac Hall and Thomas Curtis] in a cause of damage for abduction of the libellant’s son on a voyage from Boston to Trieste, and back again to Boston. The facts of this ease will sufficiently appear in the opinion of the court.

This was a libel for seaman's wages. The libel set forth a contract on the part of the libellant, to serve as steward on board the ship Elizabeth, on a voyage from Portland to New Orleans and from thence t The respondent admits the contract as alleged in the libel, and admits that he degraded the libellant from the office of steward and put him before the mast, and justifies the act by the allegation that on the outward voyage to New Orleans he was found to be unfaithful and…

<p>Case No. 12,779.</p>

Appeal [by Samuel S. Sherwood] from the decision of the commissioner of patents, upon an interference declared [awarding priority of invention to Sylvester I. Sherman for an improvement in skeleton hoop-skirts].

Case for fraud and deceit in the sale of a vessel. There were five counts in the declaration.

‘[This was an action of trespass on' the case by Richard Sherwood against Richard Sutton for fraud and deceit in the sale of a vessel. “There was a verdict in favpr of plaintiff for $4.364.50. Case No. 12,781. ' The cause is now heard upon a motion in arrest of judgment.]

September 14, 1875. Armill brought an action in the district court of Iowa, in Scott county, against Shields, by attachment, and upon the… Held: at which said Shields proposed a composition with his creditors, which was duly accepted and confirmed by the requisite number of creditors, and. upon hearing before the court, approved and ordered recorded as provided by law. Shields was not adjudged a bankrupt, nor was any assignee appointed, nor any assignment made of his estate.

This action was brought to recover the contents of a promissory note, dated at Providence. &c., given by the defendant [Levi Wheaton] to the plaintiff [Jacob Shieffelin], payable at a certain time, which had elapsed before the suit was brought. The defendant pleaded a discharge under the insolvent act of Rhode Island, after the note was given and before it became due. To this plea there was a general demurrer and joinder.

On April 30, 1877, a petition on the part of firm creditors of the firm of Huber & Mohr was filed in the district court for the Eastern district' of Pennsylvania, on which they were adjudged bankrupts. On April 24, 1877, three executions had been issued against C. Lewis Huber, one of the members of this firm, out of the court of common pleas of Lehigh county. One by Walter P. Huber, guardian of Chas.

<p>Case No. 12,788.</p> <p>B a nkhuptoy — Com POSIT] oX.</p> <p>[In the matter of Shine & Sons, bankrupts.]</p>

<p>In bankruptcy.</p>

<p>Case No. 12,792.</p> <p>Shipping Commissioners — Fees — Clerk Hire— Office Expenses.</p> <p>Under tin- act of June 7, 1872, (17 Stat. 202,) authorizing the apoointment of shipping commissioners, (now title 58 of the Revised Statutes.) although it is provided that ‘‘the salary, fees and emoluments” of a commissioner shall not be more than $5.000 per annum, and that “any additional fees shall be paid into the treasury of the United States,” and that the commissioner may engage clerks “at his own proper cost,” and that hi shall lease, rent or procure premises “at his own cost,” yet the necessary and proper expenses of his office for clerk hire, and rent of premises, and other matters are first to come out of the fees he receives, and then he may retain, as his emolument, out of such fees, $5,000 per annum, and then any of the fees which remain are to be paid into the treasury.</p> <p>[Cited in Ee Accounts of Shipping Commissioner of Port of New York,' Case No. 12.-793; ü. S. v. Eeed, 9 C. C. A. 503, 61 Fed. 415.]</p>

<p>Case No. 12,790.</p> <p>War — Recoyert op Monet Paid rou the Release op Captured Property.</p>

<p>Case No. 12,798.</p> <p>Shippixr Commissioner— Port op New Yobe — Accounts — Salaries op Deputies.</p> <p>1. The question of the salaries of employees in the office of the shipping commissioner of the port of New York, considered.</p> <p>[Cited in Re Accounts of Shipping Com’r of New York. 17 Fed. 139. 20 Fed. 212.]</p> <p>2. The question of allowing to be paid out of the receipts of the office in one year, expenses incurred in the previous year, and not then paid because the receipts of that year were not large enough for the purpose, considered.</p> <p>3. The shipping commissioner has, under section 4505 of the Revised Statutes of the United States, the power to appoint clerks with the title of deputy commissioners.</p>

<p>Case No. 12,794.</p> <p>Counties — County Warrants — Defences — Rights of Holder.</p> <p>1. Warrants issued by counties in Arkansas are not commercial paper, free from legal and equitable defences in the hands of a subsequent holder, but such holder takes them subject to such defences.</p> <p>[Cited in Goldman v. Conway Co.. 10 Fed. 889.]</p> <p>[Cited in Board of Suo’rs v. Catlett's Ex’rs (Va.) 9 S. E. 1001.] '</p> <p>2. Under the laws of Arkansas, warrants issued for more than the sum actually due a claimant in order to make the warrant worth in money the amount of the debt due from the county, are void as to the excess, and may be defended against accordingly. The act of the county authorities, in auditing the claim and issuing the warrants, is not conclusive, as a judicial determination, upon the parties.</p> <p>[Cited in Board of Com’rs of Hamilton Co. v. Sherwood, 11 C. C. A. 507, 64 Fed. 107.]</p> <p>3. Under the circumstances, the court treated the holders of such warrants as the equitable assignees of the valid legal claim of the payee, or of the holder's proportionate share of such claim where several warrants were issued therefor, subject to any payments the county may have made to any holder of a warrant representing a portion of such claim.</p> <p>[Cited in Wood v. Louisiana, Case No. 17.948; Cause v. Clarksville, 1 Fed. 357; Thoma-son v. Searcy Co.. 6 C. C. A. 674. 57 Fed. 1033.)</p> <p>4. The statutes of Arkansas, as to calling in warrants “in order to cancel, reissue, and classify the same,” construed.</p> <p>NOTE. Tiie circuit court of the United States for the Eastern district of Arkansas, April term, 18715, upon a review of the legislation of that state touching the indebtedness of counties on warrants, and the provisions of the new constitution on the subject of county indebtedness. decided the following propositions:</p> <p>1.That the county court, in case the county 18 indebted, owes a legal duty to the creditor, or warrant-holder, to exert the power of levying taxes to the maximum limit allowed by law, if necessary, to pay the outstanding indebtedness of the county. The maximum rate can in no event be exceeded. Dill. Mun. Corp. § 689.</p> <p>2. That a creditor, who has obtained a judgment in this court against a county, may. after proper demand on the county court to discharge its duty in this regard, and a neglect or refusal on the part of the court to comply with such demand, have a mandamus to compel the performance of such duty. There must be such a demand, or averment of facts of such a nature as will dispense with the demand.</p> <p>3. Under the new constitution [article 16, § 9l. as to indebtedness then existing, there is a duty, which creditors may enforce, resting on the county court, to levy a. tax, not exceeding one-half of one per cent. Such tax. when levied and collected, cannot “be used for any other purpose” than the payment of such indebtedness (article 16. § 11), and.must, according to our present impression, although the court does not hold itself concluded on the point, be collected in money, and, not in other warrants. See U. S. v. Miller County [Case No_ 15,776).</p>

[Appeal from the district court of the United States for the district of Louisiana.] About half past two o'clock on the morning of the 11th of February. 1872, the steamers Sabine and Richmond collided with each other a short distance below Twelve Mile Point on the Mississippi river. As a result of the collision, the Sabine sank in about five minutes, and the Richmond received some damage.

This action was brought in trespass to recover the value of twenty-five head of cattle carried away by the defendants on the óth of May, 1803. Two of the defendants. Trip-lett and Yerkey, appeared by counsel and pleaded not guilty.

<p>[Appeal from the district court of the United States for the district of Massachusetts.]</p> <p>• Libel in personam for seamen's wages. At the hearing in the district court, there was a decree for the libellant [.Tames Titus] for twenty-eight dollars, and costs, the original demand being over fifty dollars. [Case unreported.] The respondent [Charles Shirley] appealed, but there was no cross aj>-peal by the libellant.</p>

<p>Case No. 18,798.</p> <p>Notes — Consideration—Agreement to Pat Expenses — Contract.</p> <p>1. An agreement to pay ten per cent, if a certain note, given some time before, should not be paid punctually when due, is without consideration, and cannot be enforced.</p> <p>[Cited in Adams v. Hastings, 0 Cal. 12".]</p> <p>2. But where in such agreement the maker of the note bound himself to pay the note to him in Missouri, the residence of the payee, and in the event of failing to pay, that he would pay the expenses of the payee in coming to Indiana to collect it, may be enforced.</p> <p>3. The consideration arises from the expense incurred, by reason of the default of the maker of the note.</p>

<p>Case No. 12,799.</p> <p>Bankrottcv — Omission from Schedule — Fraudulent Transfer — Discharge—Opposition to.</p> <p>1. Where a bankrupt omitted to state in his schedule the amount of money in the hands of a receiver appointed by a state court in a suit between him and his co-partner in relation to partnership property, but stated that the partnership assets would not more than pay the expense of their litigation, and that he was not able to state their exact amount: Held, that the omission was no ground for refusing a discharge; and that an affidavit to the truth of the schedule was not prima facie perjury.</p> <p>2. A suit was brought by a partner against his co-partner in a state court, charging waste, and praying the appointment of a receiver. A receiver was appointed, and took control of the partnership assets. Soon after, the plaintiff in that suit was adjudged a bankrupt on his own petition. Held. that the proceedings in the state court did not amount to a fraudulent transfer by the bankrupt of bis property, so as to preclude him from bis certificate of discharge.</p> <p>3. Opposition to the discharge of a bankrupt must be in writing, and must disclose the name of the opposing creditor or creditors.</p> <p>NOTE. A mere failure on the part of tbe bankrupt to schedule property is not a ground for refusing his discharge. Though the act makes a concealment of the same a ground for such action, it must be averred and proved that it was willful. In re Bidom TCasc No. 4.335], But leave will be given to the bankrupt to amend his schedule; then he will be entitled to a discharge. In re Connell fid. 3,110].</p> <p>Swearing to schedules from which certain property is omitted is not perjury unless the schedules were willfully so sworn to. In re Keefer. [Case No. 7.0301: In re Rathbone [Id. 11,580]; In re Wyatt [Id. 18,106].</p>

Shoemaker filed a bill in this court against French for an injunction to prevent his act- . ing or claiming to act as president at the Alexandria and Washington Railroad Company, and the court passed an order directing French to be served with notice of motion, for injunction. After this order was passed. French filed his bill in the state court at. Alexandria, praying an injunction against Shoemaker for matters cognate to the bill in this court.

<p>Application for an injunction.</p>

[In the matter of Joseph Shoeubex-ger, a bankrupt.] . The question in this case now before the court arises upon exceptions to the report of Register Ball, upon an application of the assignee to expunge the proof of debt with security by the Western German Bank.

[This was a bill in equity by Sheridan Shook and others against Arthur McKee Rankin and others.] Complainants’ bill alleged that prior to February 1, 1875, a dramatic composition or play, entitled “Les Deux Or-phelines,’' was designed and composed in the French language by Adolph D’Ennery and Eugene Cormon, residents and citizens of France.

(This was a bill in-equity by Sheridan Shook and others against Arthur McKee Rankin and others.] Motion for a preliminary injunction to restrain the performance by the defendants of the play called “The Two Orphans.”