Volume 23 — Federal Cases

[In the matter of Ezra M Stevens, a bankrupt.] [At a court of bankruptcy held at the courthouse in Catskill in said district, on the 24th day of January, 1871, before Mr. Theodore B. Gates, register of said court in bankruptcy, this being the day to which the first meeting of creditors in the above-entitled matter. had been duly adjourned, I sat at the place above designated for the purpose of holding such first meeting.

This was a case of voluntary bankruptcy. The petition was filed on the 30th day of September, 1869, and at the request of the bankrupt a provisional assignee of his estate was appointed.

<p>Case No. 13,393</p> <p>tuitviviKG Partner Adjudged Bankrupt — Joint Assets to be Taken Possession of.</p> <p>1. A surviving partner will be adjudged bankrupt on an act of bankruptcy committed by him in the course of the administration of the assets of the dissolved partnership, notwithstanding that the separate estate of the deceased partner is sufficient to pay all his debts, joint and separate.</p> <p>[Cited in Re Redmond, Case No. 11.632; Mc-Kenney v. Baker, Id. 8.853; Adams v. Terrell, 4 Fed. 802; Re Sauls, 5 Fed. 717.]</p> <p>2. The messenger will in such case take possession of the joint assets in the hands of the bankrupt surviving partner, and also of his separate propertv.</p> <p>[Cited in Re Webb, Case No. 17,317.]</p> <p>STEVENS, In re. See Case No. 6,346.</p>

<p>This was a bill in equity brought by Henry J. Stevens, assignee in bankruptcy of C. S. P. Bowles. W. B. Bowles, R. P. M. Bowles, and Henry C. Stetson, partners under the firm name of Bowles Bros. & Co., against Nathan Appleton and P. H. Story. The bill alleged that the said C. S. P., W. B., and R. P. M. Bowles, and H. C. Stetson, and Nathan Appleton, were and had been co-partners, and were and had been members of a partnership, doing business as bankers at Paris, London, New York, and Boston, under the firm name of Bowles Bros. & Co.; that on Jan. 20, 1873, a petition was filed in this district against the said Appleton, praying that he might be adjudged a bankrupt; that on Jan. 29, he was so adjudged, and that F. H. Story was appointed assignee, and all the property of Appleton was conveyed and assigned to him. That since the 21st of January, there had always remained, and still were, assets and debts of said partnership. That on Feb. 3, 1873, a petition was filed in the district court of this district against Bowles Bros. & Co., and they were adjudged bankrupts Feb. 3, 1873, and the complainant was appointed assignee; that the property of said Appleton, assigned to said Story as his assignee, was much more than was necessary to pay all his separate debts and liabilities; that Appleton was a general member of the partnership of Bowles Bros. & Co., when their debts and liabilities were incurred, and was therefore liable for such debts. The bill prayed that Appleton and Story might be decreed to convey to the complainant all the estate and property of said Appleton, assigned to said Story, and all rights therein, and the proceeds and accrued income thereof, and be enjoined, paying or releasing any of the same, or if not, that then all that remained after discharge of all the debts' of said Appleton. The respondents demurred to the bill.</p> <p>This proceeding is authorized by the bankrupt act [of 1807 (14 Stat. 517)]. Section 2 of the bankrupt act gives the circuit court jurisdiction of all suits in equity; by the assignee against any person claiming an adverse interest; or by such person against such assignee, touching any property or' rights of property of said bankrupt transferable to or vested in such assignee. This bill ' is maintainable on either ground. It is a bill by the plaintiff. It is a bill against Story. By section 14 of the bankrupt act there pass to the assignee all the bankrupt’s rights in equity, all debts due him, all his rights of action for property or estate, or for any cause of action arising from contract. By section 36 of the bankrupt act, all the joint property of the firm, and all the separate estate of each of the partners, is taken and passes to the assignee. The demurrer admits that Appleton is a partner. Therefore his property has passed to the plaintiff, and the plaintiff can maintain this suit against Story as a person withholding property from him. Bills in equity are appropriate ancillary methods in the administering of partnership estates, when some or all of the partners are in bankruptcy. Such proceedings may be by or between several assignees. Colly. Partn. §§ 844, 857; Ex parte Voguel, 1 Atk. 132; Hankey v. Gar-' rat, 3 Brown, Ch. 458; Burnside v. Merrick, 4 Mete. (Mass.) 537. Original bills for such purposes are disused now' in England, but, by reason of statutes or of rules, are sometimes adopted in the discretion of the court. This demurrer raises only the question of the legal possibility of such proceedings. No other mode of reaching Appleton’s property, for the benefit of the partnership creditors, is so simple, proper, and convenient as this. The proceedings to apply Appleton’s property to the payment of the partnership debts may be taken either by the defendants or by the plaintiff or the partnership creditors. Therefore it must be open to the plaintiff or the partnership creditors to take measures to obtain the application of Appleton’s property to the partnership debts. Besides the present, there seem to be only five modes of' proceeding possible: — By the petitioning creditor amending his petition by joining Appleton as a partner, and praying that he may be included in the adjudication of bankruptcy. By a new petition against all the partners, praying that both the preceding adjudications may be annulled. By consolidating the proceedings on the petition of the plaintiff. By proof of claim by the plaintiff as assignee against Appleton’s estate. By proof of claims by the creditors separately against Appleton’s estate. The plaintiff submits that the present method is preferable to either of these five. By the petitioning creditor amending his petition hy joining Appleton as' a partner, and praying that he may be included in the adjudication of bankruptcy. By a new petition against all the partners, praying that both the preceding adjudications may be annulled. There is no authority to annul the previous adjudications. The petitions were valid, and the adjudications in due form. The court has no authority to annul the adjudications. By consolidating the proceedings on the petition of the plaintiff. A petition for consolidation is a very unfit way to try disputed questions. There is no authority for using it for that purpose. In the English practice it is never used when it is in dispute that they are partners. The petition for consolidation in fact, says, “Here are several persons, the property of each of whom is admitted to be liable for a certain class of debts; we pray the court to administer them together.” In the present, the very fact of the joint liability is in question. The result of a petition after consolidation could be in no way different from that which would be reached by the present proceeding. The plaintiff, being chosen by the creditors of the partnership, would, by the provisions of section 36 of the bankrupt act, be entitled to have all the assets in the hands of either of the defendants placed in his custody. That is precisely what he seeks by the present proceedings. His duty to distribute them would be the same when he should get them under this bill as when he should get them under a petition for consolidation. Besides, if necessary, this bill may be treated as a petition for consolidation. The same order could be made under this bill which could be made under said petition. It is often an objection in bankruptcy proceedings that less formal measures have been taken than the bankrupt act requires, as for instance, that a summary petition has been brought, when the party should have filed a bill in equity; but it is no objection that proceedings have been too formal; that the rights of defendants have been too carefully observed; or that the parties have proceeded by a regular bill, when a summary petition would have sufficed. Any allegations in this bill unnecessary for a petition, can be rejected as sur-plusage. and it will then stand as a petition praying for this court to exercise its general supervisory jurisdiction under section 2 of the bankrupt act. Such a petition, if it be the proper way of proceeding, would be within the jurisdiction of this court. English Bankrupt Act 1869, § 102; Lancaster v. Choate, 5 Allen, 530, 534, et seq. By proof of claim by the plaintiff, as assignee, against Appleton’s estate. The result would be the same as in this case. But the conclusive answer to this mode of proceeding is that what the plaintiff seeks, and what he is entitled to, is not to. prove a debt, but to take possession of property. By proof of claims by the creditors separately against Appleton’s estate. Bach creditor may prove his debt against Appleton’s estate, if the court should allow him to do so. This course would be unjust to the bankrupts, of whom the plaintiff is assignee. Whether they get their discharge may depend upon the dividend which the partnership pays. It is very unjust to the .creditors. It compels them to prove twice over a debt against one firm; and much expense would be uselessly incurred in a double administration. This bill is a way of trying the question more favorable to the defendants than any other could be. They have on this an appeal to the supreme court. They have to meet the question once for all. Especially does it make a compromise possible. Such compromise might be most advantageous both to Appleton and to the creditors of Bowles Bros.; and if the court overrule this demurrer, it may be possible for the parties, with the sanction of the court, to effect a compromise which will bind all persons. • c</p> <p>Has this court original jurisdiction in equity, or otherwise, to determine that a firm composed of all the persons named in this bill, including Appleton, shall be declared partners and bankrupt; or is that power exclusively confided by law to the district court? Such, in effect, is the entire scope of the bill. It is clear, on the face of the bill, that no decree, declaring a firm thus constituted to be bankrupt, has hitherto been made. It is an elementary principle that, to sustain a decree declaring a partnership bankrupt, some act of bankruptcy must be shown to have been committed or acquiesced in by each of the members, and each is therefore entitled to be heard in the usual form and before the usual tribunal. Beasley v. Beasley, 1 Atk. 96; Mills v. Bennett, 2 Maulé & S. 556; Allen v. Hartley, 4 Doug. 21. If. then, this court is to declare the partnership-(constituted as averred in the bill) to be bankrupt, it must, under this bill, take and hear all the proofs as to each member of the alleged partnership, in the same manner as the •district court is required to do on an original, application. In fact, it must exercise a concurrent original jurisdiction in bankruptcy with the district court, for which there is no warrant in the statute. But it is assumed by the bill that where a decree of the district court exists, declaring certain parties to constitute a firm and to be bankrupt, authority is vested in this court, in equity, to reform the decree and add to the designated members of the firm others, so that the original decree shall be amended and stand. But it is obvious that such an exercise of jurisdiction is, in all respects, identical with the original jurisdiction of the district court, and is a jurisdiction nowhere conferred on this court; and further, that the proceeding, if it could be maintained, must be instituted by creditors and by them only. But what is fatal to the bill is, that it proceeds upon the ground that the firm of Bowles Bros. & Co. was not constituted as is alleged in the decree declaring it bankrupt, but of the parties named in that decree and also of Nathan Appleton. This averment makes the former decree wholly void. The plaintiff, therefore, cannot be aided in the present case by the nominal existence of such a decree; and thus the bill must rest, if sustained, solely upon the ground that this court is a court of original jurisdiction in bankruptcy. There cannot be a joint adjudication against three, four, or five of the members, and that such an adjudication is absolutely void is well settled. Allen v. Hartley, 4 Doug. 21; IVats. Partn. 244 (179); Streatfield v. Halliday, 3 Term R. 779. The statute 32 & 33 Viet. c. 71, § 100, has so far changed this in England, that a creditor of a firm may petition for an adjudication of bankruptcy against any one or more of the firm, and thus sever what, except for the statute, would be a joint claim. Robs. Bankr. 573. But the United States bankrupt act makes no provision of the kind. It contemplates no other adjudication in bankruptcy. against a partnership, except one in which all the members of the firm are named and embraced, and where all the partners have been notified and had an opportunity to be heard. See section 30. It may not be improper to add that if this court had power and jurisdiction to amend a former decree, and add new parties to that decree, still the result of such reformation would not, as matter of course, enable the plaintiff to take from the assignee of Mr. Appleton the assets which, under an earlier decree declaring Mr. Appleton individually a bankrupt, have passed to his as-signee. The course to be adopted, where a partnership has been declared bankrupt subsequent to a decree of bankruptcy against an individual partner, depends entirely upon the attitude of things when the decree declaring the partnership bankrupt is passed, and rests in the discretion of the court, whether the continued administration of the separate estate can be most advantageously allowed to stand or the whole administration confided to the assignee of the firm.</p>

[This was a bill in equity by James Stephens against Isaac H. Cady to restrain the infringement of a copyright. See note to Case No. 13,400.] This case having been remanded to this court by a decree of the supreme court (see 14 How. [55 U. S.] 528), now came on for a final decree.

<p>Bill in equity [by Daniel B. Stevens against John S. Eldridge. Henry N. Farwell, and Mark Healey, trustees of the New York & Boston Railroad Company, and William T. Hart, and Charles P. Clark, trustees of the Boston. Hartford & Erie Railroad Company] to compel certain alleged trustees of the New York & Boston Railroad to account for and pay over to the complainant certain money they might have received from said road; that they might be removed, and others appointed in their places; ■ and that a receiver might be appointed to receive and hold the alleged trust property; and that the alleged trustees of the Boston, Hartford & Erie Railroad might be restrained from exercising any further control over the said road. The bill alleged, in substance, that the New York & Boston Railroad was established December 30, 1802, and made a deed of trust of all its property and franchise from Brookline, Massachusetts, to Daysville, Connecticut, where it crossed the Norwich & Worcester Railroad, to Daniel S. Whipple, Hiram Allen, and John M. Wood, for the payment of a series of bonds and interest not exceeding $500.000, in order to build the road, and for paying preexisting debts, entitling the bondholders to the security derived from the mortgage. That on December 30, 1802, the trustees issued a large amount of bonds as authorized, some of which were issued to the complainant; that by the proceeds thereof the road was built, and that the same were a lien on the road; that in 1864 the Boston, Hartford & Erie Railroad took possession of the Boston & New York road, and ran and managed the two roads, which were then united; that thereupon Hart, Oliphant, and Clark were appointed trustees of the Boston, Hartford & Erie road, and at the date of the case continued to run and manage the same, and received the income and earnings, but refused to pay the Boston & New York bonds, although they were a prior lien on that road. That Eldridge, Earwell, and Healey succeeded Wood. Whipple, and Allen as trustees of the New York & Boston road, but that they had for a long time abandoned their trust, and suffered Hart, Oliphant, and Clark to usurp and manage the united roads, and that no interest was paid and no payments made on the bonds of the complainant. The bill charged that Eldridge, Earwell, and Healey should be removed and a receiver appointed. The bill was filed November 5, 1873. Healey appeared December 1, 1S73, and filed an answer. Hart and Clark demurred to the bill January 5, 1874. On September 17, 1874, an order was passed that the bill be taken pro confesso as to Farwell. Service was made on Eldridge, and the cause was set down for hearing on demurrer. Amendments were made to the bill, and the decease of Oliphant was suggested November 3, 1875, and the order that the bill be no further prosecuted as to him was entered, and that it be taken as confessed as to Eldridge and Far-well. The hearing was upon the demurrer of Hart and Clark.</p>

[This was a suit by Henry Stevens against David and Willard Felt, to enjoin the alleged infringement of complainant’s patent for a coloring fluid.]

[This was an action at law by William H. Stevens and others against Andrew W. Gill and others to determine conflicting claims to mining property.]

[This was a suit by James Stevens against Rcyal Gladding and Isaac T. Proud to restrain the infringement of a copyright. There was a decree dismissing the bill, case unreported.

This was a qui tarn action brought against the defendants [Royal Gladding and Isaac T. Proud], to recover certain penalties under the act of congress for the protection of copyrights [4Stat. 436]. The plaintiff [James Stevens] was the author of a map of Rhode Island, and sued the defendants, who are booksellers at Providence, R. I., for selling copies of the map.

Bill in equity by patentee against an alleged infringer to ascertain the amount of profits arising from the use of the patented invention, and to compel payment thereof. The bill was filed after the expiration of the original and extended term of the patent — it was brought, indeed, within three days of the lapse of six years after the expiration of the extended term.

<p>Case No. 13,403.</p> <p>[See Case No. 13,402.]</p>

This was a motion by the plaintiff [William S Stevens] to quash a writ of certiorari, by which this suit, brought in a state court, was removed into this court.

<p>[This was an action of assault and battery by Stephen Stevens against Edward Lloyd.]</p>

<p>[This was a bill in equity by John G. Stevens and others, trustees, against the New York & Oswego Midland Railroad Company and others, to foreclose a certain mortgage.]</p>

[This was a bill in equity by John G. Stevens and others, trustees, against the New York & Oswego Midland Railroad Company and others, to foreclose a certain mortgage. The receivers applied for injunctions to restrain the tax collectors from proceeding to interfere with the property, by selling it. under warrants to satisfy certain state taxes. The applications were denied. Case No. 12.405. The cause is now heard on motion for an order of distribution. See, also, Id. 6,443.]

This was a bill in equity [by Samuel A. Stevens, trustee, against William A. Pritch-ard], founded upon certain reissued letters-patent for an improvement in making boots and shoes.

Ejectment [by Robert Stevens against Nathaniel S. Ruggles and others] for certain real estates in Newport. The statement of facts was as follows: That Thomas Teagle Taylor, late of Newport, in the state of Rhode Island, made and executed his last will and testament at said Newport, in the year 1709, (which was subsequently duly proved,) and died about the year 1774, seized and possessed of the demanded premises.

<p>Case No. 13,409.</p> <p>Admiralty — Jdkisdiction—Maritime Liens — Repairs — Waiver.</p> <p>[1. Every contest or dispute between the owners and mariners and the owners and builders or equippers- of a ship, for navigation on the sea. is of a maritime nature, and cognizable in the admiralty.)</p> <p>[Cited in The Richard Busteed, Case No. 11,-764; Davis v. The Seneca. Id. 3,650; Water-bary v. Myrick, Id. 17.253. Approved in Thaclcerey v. The Parmer of Salem, Id. 13.-832; Ludington v. The Nucleus, Id. 9,508.)</p> <p>[Cited in Re The Josephine, 39 N. T. 20.)</p> <p>[2. By the general maritime law a shipwright has a lien for the value of materials, labor, etc., expended by him in repairing a vessel in port.)</p> <p>[Cited in Zane v. The President. Case No. 18.201; The Jerusalem, Id. 7.294; Ramsay v. Allegre, 12 Wheat. (25 U. 8.) 626; Cunningham v. Hall. Case No. 3.481; Phillips v. The Thome® Scattergood. Id. 11,-106; New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. (47 U. S.) 390.)</p> <p>[3. A maritime lien for repairs may be relinquished or lost by acts which show that other securities have been substituted and accepted therefor, and the court, in examining the testimony applicable to this point, will make every presumption that a jury ought to make on the trial of questions of fact.)</p> <p>[Cited in The Utility, Case No. 16,806; Leland v. The Medora, Id. 8,237.)</p> <p>[4. The admiralty jurisdiction over a maritime cause is, in its nature, complete. It extends to the person as well as to the res, and cannot be confined to one of the remedies on a contract when the contract itself is within the cognizance of the court.]</p> <p>[Cited in De Lovio v. Boit. Case No. 3,776; The Panama. Id. 10.703; U. S. v. New Bed-ford Bridge, Id. 15,8G7.]</p> <p>[5. Cited in De Lovio v. Boit, Case No. 3,776, to the point that the statutes of Richard II. have received in England a construction which must at all times prohibit their extension to this country; that no principles can be extracted from the adjudged cases in England which will explain or support the admiralty jurisdiction, independent of the statutes, or the works of jurists who have written on this general subject.]</p> <p>[Cited in Waring v. Clarke, 5 How. (46 II. S.) 473, 490.]</p>

[This was a bill by James B-. Stevens against Cragie Sharp. The defendant in this suit had already obtained a judgment in this court (Case No. 12,710), and this action is brought to restrain the execution of it.]

[This was a libel for salvage by Hiram E. Stevens and owners of the steamboat Eliza against the steamboats. S. W. Downs and Storm and cargo of the Storm.]

<p>Case No. 13,412. -</p> <p>Evidence — Materiality — Hearsay —Wills— Competency op Testatok — Time op Making — Presumption op Sanity — Signing.</p> <p>1. Question upon the validity of a will and i-estament. The defendant's counsel offered evidence to prove that a former will, executed by the testator, had been purloined by the plaintiff. This evidence is improper, as it is not pretended that the contents of that will are to be proved, as the plaintiff relies altogether on the validity of another and subsequent will.</p> <p>2. The declarations of a party to a deed or will, whether prior or subsequent to its execution, are nothing more than hearsay evidence; and nothing could be more dangerous than their admission as evidence, either to control the construction of the instrument, or to support or destroy its validity.</p> <p>[Cited in Caeman v. Van Harke, 33 Kan. 338, 6 Pac. 624; Comstock v. Hadlvme Ecclesiastical Soe., 8 Conn. 264; Collagan v. Burns, 57 Me. 471; Couch v. Eastham, 27 W. Va. 803; Dickie v. Carter. 42 111. 389. Distinguished in Dinges v. Branson, 14 W. Va. 114; French v. French, Id. 507. Cited in brief in Gibson v. Gibson. 24 Mo. 228. Cited in Herster v. Herster. 122 Pa. St. 256, 16 Atl. 346. Cited in brief in Hoshauer v. Hoshauer, 20 Pa. St. 400. Cited in Kitchell v. Beach, 35 N. J. Eq. 454. Cited in brief in Kenyon v. Ashbridge, 35 Pa. St. 159.-Cited in Lewis v. Douglass, 14 R. I. 607; Linton’s Appeal, 104 Pa. St. 238: Mooney v. Olsen. 22 Kan. 76. Distinguished in Neel v. Potter, 40 Pa. St. 484. Cited in brief in Robinson v. Adams, 02 Me. 381; Robinson v. Brewster, 140 Ill. 655, 30 N. E. 683.]</p> <p>3. What constitutes a sound and disposing mind or memory in a person making a will.</p> <p>[Cited in brief in American Bible Soc. v. Price, 115 Ill. 625. 5 N. E. 120. Cited in Bennett v. Bennett, 50 N. J. Eq. 446, 26 Atl. 573. Cited in brief in Brinkman v. Rueggesick, 71 Mo. 553; Hovey v. Hobson, 55.Me. 269; Hovey v. Chase, 52 Me. 309. Cited in Lee’s Case, 46 N. J. Eq. 201, 18 Atl. 528; In re Pensyl’s Will, 157 Pa. St. 405. 27 Atl. 672; Reynolds v. Adams, 90 Ill. 149; Rusling v. Rusling. 36 N. J. Eq. 607: White v. Starr, 47 N. J. Eq. 258, 20 Atl. 880.]</p> <p>4. The only point of time to be looked to by a jury, who are to decide upon the competency of a testator to make a will, is that when the will was executed.</p> <p>[Cited iu Turner v. Hand, Case No. 14.257.]</p> <p>[Cited in Craig v. Southard. 148 111. 45, 35 N. E. 361; Greer v. Greers. 9 Grat. 333; Harden v. Hays. 9 Pa. St. 103: Wilson v. Mitchell. 101 Pa. St. 503: Waddington v. Buzby. 45 N. J. Eq. 174, 16 Atl. 601; Toe v. McCord, 74 Ill. 45.]</p> <p>5. What is the nature of the evidence, and how it is to be estimated, in relation to proof of the execution of a will.</p> <p>6. Construction of the statute of New Jersey relative to the execution of wills.</p> <p>7. The will in this case was upon strictly legal principles, signed by the testator, his hand being, with his own consent, guided by another, and the will afterwards acknowledged by him.</p> <p>[Cited in Blair v. Sayre. 29 W. Va. 613. 2 S. E. 97. Cited in brief in Vandruff v. Rine-hart, 29 Pa. St. 233.]</p> <p>8. The presumption of law is always in favour of the sanity of the person whose will is brought into question, at the time the will was executed; and the burthen of proof lies upon the person who asserts unsoundness of mind: unless a previous state of insanity has been established; in which case the burthen is shifted to him who claims under the will.</p> <p>[Cited in brief in Farrell v. Brennan, 32 Mo. 331; Hill v.'Hill, 53 Vt. 579; Williams v. Robinson, 42 Vt. 661.]</p>

<p>Case No. 13,413.</p> <p>Mixes — Lode or Ledge — Apex — Poi.i.owixg Vein.</p> <p>1. A vein, lode or ledge, within the meaning of the act of congress, is a mineral body of rock within defined boundaries in the general mass of the mountain.</p> <p>[Cited in Iron Silver Min. Co. v. Cheesman, 110 U. S. 034, 6 Sup. Ct. 483; Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 143 U. S. 394, 430, 12 Sup. Ct. 501.]</p> <p>[Cited in Bullion. B. & C. Min. Co. v. Eureka Hill Min. Co., 5 Utah. 3. 11 Pae. 540; Illinois Silver Mining & Milling Co. v. Raff (N. M.) 34 Pac. 544.]</p> <p>2. The top or apex of a vein is the highest point where it approaches nearest to the surface of the earth, and where it is broken on its edge, so as to appear to be the beginning or end of the vein. If a vein, at its highest point, turns over and pursues its course downwards, then such point is merely a swell in the mineral matter, and not a true apex.</p> <p>3. Where there is a true apex within the surface boundaries of a claim, the claimant can follow the vein in its downward dip beyond his vertical side lines, and he may follow the vein beyond such side lines at any point where the : apex is within his surface lines, even though his location for the full length of the claim be not along the line of such apex; and he is entitled to follow the same in its departure from the perpendicular, in any degree, until it reaches the horizontal.</p> <p>[Cited in Consolidated Wyoming Gold Min. Co. v. Champion Min. Co.. 63 Fed. 552.]</p> <p>[Cited in Bullion. B. & C. Min. Co. v. Eureka Hill Min. Co., 5 Utah, 3, 11 Pac. 53G.]</p> <p>[For subsequent proceedings, see Case No. 13,414.]</p>

<p>Case No. 13,414.</p> <p>Mixing Laws — Definition of Tekms — Right to Follow Dip — Ciiahacteh of Deposit</p> <p>[1. The words, “in place.” as used in the act of congress of May 10. 1S72, as descriptive of the lodes or veins for which mining claims may lie taken out under the act, mean the general body of the country, which remains in its original state, unaffected by the action of the elements. as distinguished from the superficial mass known as alluvium, detritus, or débris. It is what miners usually call the “country.” or the “country rock.” And a vein or lode is “in place,” within the meaning of the act, when it is inclosed in the general mass of this rock.]</p> <p>[2. “Vein.” or “lode,” as used in the act, embrace any description of deposit which is inclosed in the general mass of the country rock, without regard to the technical geological distinctions in respect to beds, segregated veins, gash veins, true fissure veins, or mere deposits; and it is immaterial as to the character of the vein matter whether it be in a solid, or in a loose, disintegrated, state.]</p> <p>[3. “Top.” and “apex,” as used in the act of congress, mean that part of the vein or lode which comes nearest to the surface, and may include a part which stands in the solid rock below a considerable body of the superficial mass.]</p> <p>¡4. Under this act a location may include 1.500 feet in length along the linear course of the lode and 150 feet on each side of it.]</p> <p>[5. If a locator fails to locate his claim parallel with the apex of the vein, so that the latter passes out through a side line thereof, he can take nothing thereunder except what lies within the boundaries of his claim, and cannot follow the lode if it passes beyond the vertical side lines.]</p> <p>[G. The right given by the statute to follow the dip of a vein, although it “may so far depart from the perpendicular * * * as to extend outside the vertical side lines,” is not limited to veins having an inclination of 45 degrees or less from the perpendicular, but extends to all veins which do not lie in a practically horizontal position.]</p> <p>[7. If in following a vein or lode, which is found at the point of union between rocks of different ages and different formation, as in the case of porphyry and lime, the line of contact should be found barren of ore for a considerable distance, not by reason of a mere interruption or break, extending only a few feet, but because the two kinds of rock come together, and carry nothing whatever between them, then the deposits should no longer be- called a vein or lode, and the owners of the claim would have no right to another body of ore found at a considerable distance beyond.]</p> <p>[See Case No. 13.413.]</p>

<p>[This was an action for wages by J. D. Stevenson, United States shipping commissioner, against Charles Hare.]</p>

<p>Case No. 13,417.</p> <p>Insolvency — Dischauge — Effect in Axotheii State — Constitutional Law.</p> <p>A certificate of discharge under the bankrupt or insolvent laws of one state cannot be pleaded in bar of an action brought by a citizen of another state.</p>

<p>Case No. 13,419.</p> <p>Bankruptcy — Voluntary and Involuntary Proceedings — Adjudication — Motion to Set Aside — Schedules.</p> <p>Creditors petitioned to have debtor declared bankrupt; process issued thereupon, and bankrupt, by indorsement on copy of said petition served upon him, admitted the truth of the allegations therein contained, except as to those of fraud, and before the day to appear and show cause, the bankrupt filed his voluntary petition in the same court and was adjudicated bankrupt by proper register. On motion to set aside the said adjudication of bankruptcy as void, held. that the same was nugatory and of no effect pending the proceeding in involuntary bankruptcy. Adjudication accordingly set aside and debtor adjudged bankrupt by the court on petition of creditor!, and schedules previously filed by him ordered to be' held as filed under such adjudicati.-n.</p> <p>[Cited, but not followed, in Re Flanagan, Case No 4.850.J</p>

<p>Case No. 13,420.</p> <p>Bankruptcy — Exemption—Partnership Estate.</p> <p>No individual exemption can be allowed out of the partnership estate at the expense of the joint creditors.</p> <p>[Cited in Re Boothroyd. Case No. 1.652; Re Corbett. Id 3.220; Re Hughes, Id. 6.842.]</p>

Debt for $330.50. on the defendant’s note dated 23d of April, 1807, payable 180 days after date, to W. Hodgson, and by him assigned to the plaintiff. The defendant pleaded, 1. Nil debet. 2. A set-off of a note due to him from Hodgson before notice of the assignment of defendant’s. note to the plaintiff. 3. A set-off for goods sold and delivered to Hodgson before notice of the assignment. To these pleas there were general replications and issues.

This bill is filed by the complainant [Adam D. Stewart] as one of the residuary legatees under the will of Elizabeth Orr, and prays for an account. He avers that the defendant [John Barcroft.executor of Elizabeth Orr] has kept and applied the funds received by him as executor to his own use; that he has called upon the defendant to pay that part of the legacy that the complainant is entitled to, but he has utterly refused to do so.

<p>[This was a suit by John Stewart against Morgan S. Drasha and others.]</p>

[This was a bill in equity by Thomas J. Stewart against William Fagan and others.] The bill alleged that the complainant was the indorser and holder of a large number of drafts, drawn by “Miles Owen for steamer Katie”, on one J. Pinckney Smith, and accepted by him; all dated April 6, 1872, except three, dated November 1, 1872, and transferred by the payees to complainant; all of which were due and unpaid.

Ill chancery, on attachment process, under claim of lien bv lumber dealers, .-.nd against nonresident defendants. George W. Beach was, in 1877. a shipbuilder in Norfolk, conducting a shipbuilder’s yard and an iron works adjacent. In the winter and spring of that year he was engaged in building two brigs for the defendants. Gor-goza’s Sons, and one or two or more other vessels for other persons.

<p>Case No. 13,428a.</p> <p>Recoups — Authentication'—JunGF.’s Ceutificate —Nonsuit—At What Time mat be Entered.</p> <p>1. Under the act of 1790 [1 Rtat. 122] the certificate of a judge styling himself “one of the judges” of a court, is not a sufficient authentication, but it must apnear that be is the chief justice, or presiding judge or magistrate.</p> <p>2. A plaintiff may suffer a nonsuit at any time before the jury find a verdict; but it is too late after a court has decided on the plea of nul tiel record.</p>

<p>Case No. 13,430.</p> <p>Statute of Frauds — Deiit of Another — Original Promise — Consideration.</p> <p>1. A judgment was obtained by plaintiff againsi W., and a levy made on his real property to satisfy the same. H. verbally promised to pay plaintiffs the amount of said judgment in six months if he would forbear to collect the judgment against W.. and extend the time of the payment of the judgment. Held. that such promise by H. was an original and not a collateral promise, and was not required to be in writing within the statute of frauds of the state of Ohio.</p> <p>[Cited in Riffe v. Gerow, 20 W. Va. 462, 2 S. E 106.]</p> <p>2. The agreement of the plaintiff was a sufficient consideration for the promise of H. to pay the amount of the judgment.</p>

<p>Case No. 18,429.</p> <p>Marshal — Term of Office Expired — Service of Writ.</p> <p>1. The service of a summons, by a deputy marshal, the day after the new marshal has filed his bond and taken the oath, the process having before been in the hands of the deputy, is good.</p> <p>2. But this does not apply to the service of an execution. “If the marshal die. is removed from office, or his commission expires.” he has no power to sell if he has made a levy, but another execution must be issued to his successor.</p>

<p>Case No. 13,433.</p> <p>Judgment — Rights Established — Raii.uoad Companies — County Aid Bonds — Coupons.</p> <p>1. Undei chapter 907 of the Laws of New Y'ork of 1869. passed May 18th, I860, the coun-1y judge of Tompkins county adjudged that certain persons, who petitioned that the town of L., in that county, might issue its bonds in aid -of a railroad, were a majority of the tax payers representing the majority of the taxable property of the town, and entered the judgment of record. Under chapter 925 of the Laws of New York of 1871 passed May 12th. 1871, a certiorari was issued. May 27th, 1871, to the county judge, to review that judgment. In August following, the bonds, with coupons, were issued. In May, 1872, the judgment of the county judge was reversed. Some of the coupons passed to the plaintiff, and he brought suit or, them in this court, and had judgment against the town. Bailey v. Lansing [Case No. 738]. In this suit by him on others of the coupons: Held, that the former judgment did not conclusively establish his right to recover in this suit, field, also, that, because of the reversal of the judgment of the county judge, the town was not liable in this suit.</p> <p>2. After the commencement of the proceeding by certiorari, there was no authority to issue the bonds.</p> <p>[NOTE. On writ of error this was affirmed by the United States supreme court in Stewart v. Lansing. 104 U. S. 505. ' Mr. Chief Justice Waite, in delivering the opinion of the court, said that, as between the railroad company and the town, the judgment of the state supreme court, reversing and annulling the order of the county judge, invalidated the bonds, being equivalent to a refusal by the county judge to make the original order. As between the town and a subsequent bona fide holder, the bonds would be good, but under the rule that, where fraud or illegality in the inception of a negotiable paper is shown, an indorsee, before he can recover, must prove that he is a holder for value, the burden of proof was on Stewart to show' that he was a bona fide holder. On this point the judgment, in his favor in the prior suit on the coupons was not conclusive, since it did not necessarily involve ownership of the bonds, for coupons are negotiable instruments, capable of separate ownership and transfer. Although the court in its opinion in that suit “used ianguage broad enough to cover the bonds, this language must be confined in its effect to the issues on trial; that is to say. the ownership of the coupons alone.” The testimony in the subsequent suit was very .defective, failed to show the exact facts as to Elliott & Co.’s parting with the bonds, or even that the plaintiff was actually in existence, or whether Elliott & Co. knew of the judgment of the state supreme court annulling the bonds. The counsel for the plaintiff was counsel for Bailey in the prior action, and for the railroad company when the bonds were got from the commissioners so that a full discovery could easily have been made. “While it would not. perhaps, have been improper for the court, in the exercise of its rightful discretion, to leave the case to the jury on the evidence, we cannot say it was error not to do so. In Pleasants v. Fant, 22 Wall. (89 U. S.l 122. it was held that ‘if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence uTas not sufficient to warrant’ a particular verdict, the jury might be so instructed. The record in the Bailey suit was certainly admissible in evidence upon the issue as to the bona fide ownership of the coupons of July. 1872.” From Stewart, by one intermediate transfer, the bonds came into the possession of John T. Lytle. The town in May. 1887, began an action in the supreme court of New York to compel Lytle to deliver up the bonds for cancellation, and to enjoin him from transferring them pending the suit. Lytle removed the suit to the circuit court of the United States for the Northern district of New York, and filed a cross bill to compel the payment, of the bonds. A decree was given for the complainant, requiring Lytle to surrender the bonds for cancellation, and dismissing the cross bill. Lytle appealed to the supreme-court, which affirmed the decree. Lytle v. Town of Lansing, 13 Sup. Ct. 254, 147 U. S. 59.]</p>

<p>Case No. 13,433.</p> <p>Bankruptcy — What are Acts op — Preferences.</p> <p>[1. The second section of the bankrupt law (5 Stat. 442) declares “that all future payments, securities, conveyances, or transfers of property, or agreements made or given by any bankrupt in contemplation of bankruptcy, and for the purpose of giving any creditor, indorser, surety, or other person any preference or priority over the general creditors of such bankrupt shall be utterly void and a fraud upon this act.”' Held, that the acts thus designated are in themselves acts of bankruptcy.]</p> <p>[2. Assuming that the giving of a preference is not an act of bankruptcy, unless it be done voluntarily, and that, as held in England, what is done upon the demand of a creditor is not voluntary, yet the giving of a warranty of attorney to a mere indorser, whereby he secures priority, must be held a voluntary act. for such indorser is without legal right or power of coercion.]</p> <p>[3. The expression, “in contemplation of bankruptcy,” is equivalent, or nearly so. to the phrase “in expectation of stopping payment.” |</p> <p>[4. On June 3d a firm gave a warrant of attorney to confess judgment to persons who .had indorsed for them, and 10 days later refused to pay their debts. One of the partners testified that the firm considered itself solvent and was in good credit until the 3d of June. Held, that the inference was that they did not consider themselves so after that date, and that it was reasonable to hold that the preference was given “in contemplation of bankruptcy.”]</p>

<p>Demurrer to a bill in equity.</p>

This was a bill in equity, brought by [Alexander T. Stewart and others] certain judgment creditors of a mercantile firm of Horton & Brother, of the city of Providence, against Gideon L. Spenser, and Thomas Pierce, Jr., and others, to set aside an assignment of property made by Horton & Brother, for the benefit of their creditors.

[This was a bill in equity by Stewart against J. K. Smith and others.] The bill in this cause, was taken for confessed, for want of appearance and answer within three months after filing the bill, according to the 0th rule of the rules of chancery practice, prescribed by the supreme court of the United States for the circuit courts; and an interlocutory decree was passed for a sale of the property, and at the end of the decree it was stated that it would be final, “unless…

Action to recover for damages by the explosion of the steamboat Lansing, while being used by the defendant under contract with tlie plaintiff, the owner.

This was an appeal from the district court of the United States for the Eastern district of Missouri, brought to this court on a petition for review filed by the bankrupt. Seven specifications were filed in the district court against the discharge of the bankrupt, all i of which, with the exception of the fifth. ¡ were overruled by the district court.

<p>Case No. 13,440.</p> <p>Banks — Bills—Actios to Recover — Pleas.</p> <p>1. The Bank of Missouri having bills to the amount of one hundred thousand dollars of the Bank of Illinois, the latter bank agreed to draw drafts on New York for the amount, and leave its bills in the hands of a third party as collateral security, and also to place ten thousand dollars in addition in bills, to cover damages of protest. The bills were protested — and suit brought against the Bank of Illinois on the protested bills: the above agreement cannot be pleaded in bar of the action.</p> <p>2. Nor can an agreement, should the drafts be protested, to deliver an amount of the said bills, to cover the damages, be so pleaded.</p>

In admiralty. The libel alleged that on the first of November, 1847. the sloop was moored safely to the pier or wharf, and that about 9 o’clock in the evening the steamboat was observed coming down the river, the tide being at flood; that there was sufficient time and tide for the steamboat to be kept clear of said sloop; that the sloop was lying at her moorings. and could not possibly get out of the way; that there was room for the steamboat to pass, yet the said steamboat…

The defendant, the master of the Hope, lying at Laguira, took in a parcel of coffee the property of Mr. Lancaster, and gave a bill of lading, to deliver the same to Mr. Kerns of Philadelphia, to which port the vessel was destined.

The libelants were proprietors of the Novelty Iron Works, in New York City, and by their agent furnished in 1S51. to the steamer Buckeye State at Cleveland, Ohio, where the owners and builders of the boat resided, a portion of the fixtures to the engine. John B. Philips was the owner. She ran through three seasons of navigation from Cleveland and Detroit to Buffalo, a port of the state where the libelants resided.

This was a bill in equity [by J. P. Stillman & Co. against the White Rock Manufacturing Company and others] filed in May, 1845. The complainants were alleged to be citizens of the state of Connecticut, and the respondents,' a corporation in Rhode Island, ■whose members were citizens of this state, and Babcock & More, a mercantile firm belonging to the same state.

<p>Case No. 13,447.</p> <p>Bankruptcy — Appointment op Trustee.</p> <p>It is a substantial objection to the approval of a resolution of creditors, under section 43 of the act. appointing a trustee and committee to supervise his action, that the committee is composed of only two, of which one is the trustee.</p> <p>[Cited in brief in Re Cooke. .Case No. 3,109. Cited in Re Zinu, Case No. 18,210.]</p>

At the meeting of creditors for the choice of assignee, held before Hiram Griswold, register, the Capital Bank of Topeka filed its proof of debt for two thousand dollars. The proof of debt disclosed the fact that the debt was secured by a mortgage upon the real estate of the bankrupt, the real estate being the homestead of the bankrupt and occupied by him as such.

The plaintiffs, citizens of the state of Arkansas, brought this action in this court against the Empire Insurance Company, a corporation created under the laws of the state of Illinois, to recover under a fire policy issued by the defendant in the state of Arkansas upon property therein situate, and which is alleged to have been destroyed by fire, so as, by the terms of the policy, to' impose a liability upon the defendant company.

[Appeal from the district court of the United States for the Eastern district of Missouri.] The insurance company appeals from a decree of the district court, in admiralty.

<p>Case No. 13,451.</p> <p>Bankruptcy — Appeal—How Issues Tried— Former Judgment — Defenses to.</p> <p>1. When a supposed creditor takes an appeal from a decision of the district court rejecting his claim in whole or in part, and the case comes into the circuit court, it is to be there reconstructed; the creditor is required to file a declaration at law, and the issues are then to be made up and the case tried in the same way as a case at law originally commenced in the circuit court.</p> <p>2. An answer to a declaration upon a judgment obtained against the bankrupt before bankruptcy, which simply sets up matters which were available to the bankrupt as a defense to the original suit, but does not allege fraud, accident, mistake or collusion, held, bad on demurrer; and this although the judgment was by default.</p> <p>3. Semble, that where the assignee has a defense to the judgment, which is available in equity but not at law. it should be asserted by independent suit on the equity side of the court.</p>

<p>Case No. 13,452.</p> <p>Salvage — Vessel Aokift in Hah boh.</p> <p>This was an action [by Adrian Stilwell and others against the canal-boat Major Anderson], brought to recover salvage. The canal-boat, in January, 1SG4, had been made fast to another vessel in the port of New York, and during the nighttime was cut adrift by ice running in force in the bay, and was carried by an ebb tide from her moorings toward the sea, without any person on board. Being discovered in that condition by the libelants, they went out to her in a small boat, took possession of her, and made her secure. Her owners having demanded possession of her, it was given up to them, but the libelants thereafter filed this libel, which the claimants resisted on the merits, and also on the ground that the subject was not within the jurisdiction of the admiralty.</p>

<p>Case Wo. 13,453.</p> <p>Patents — Novelty—Invention—Making Model —Boii.eu Filtek.</p> <p>1. The first claim in reissued patent, for feed-water heater and filter, granted to E. R. Stil-well, August 24. 1869, which is for “filtering materia] F. between a series of shelves and outlet r, substantially as described.” held valid, notwithstanding the fact that filters bad been used for freeing the feed water for boilers, from the matter held in mechanical suspension therein, and the further fact, that heaters, composed of a series of shelves, had been used, for a similar purpose, to remove from the water the matter held in solution, and a portion of that held in suspension.</p> <p>2. Although the operation of neither the shelves nor the filter is affected by the union of the two. in the same machine, a new result is produced, inasmuch as the water is passed into the boiler in a condition different from that which would have been produced by either of the devices separately.</p> <p>3. The Stilwell patent is not invalidated by the earlier English patent of Wagner, since it Is doubtful whether Wagner’s device could be practically used with success.</p> <p>4. There is no force in the objection, that the Stilwell patent does not specify what filtering materia] is to he used. The patent permits the use of any suitable filtering material, and persons skilled in the art could at once use the invention without experiment or additional invention.</p> <p>5. The mere making of a model by a party, held not to constitute invention, as against a patent subsequently granted to another for the same thing.</p>

This was a bill [by Charles N. Stimpson and others against Alanson E. Brooks] to stay the infringement of letters patent. A motion -was made on the bill, supported by affidavits, for an injunction. The motion was opposed by the answer of the defendant, and by affidavits on his part. Mr. Justice Nelson, before whom the motion was made, denied it, with costs.

<p>Case No. 13,455.</p> <p>Patents — Penal Action — Limitation — Statute —Repeal—Penalty.</p> <p>1. Tlie two years’ limitation of suits for penalties contained in tlie 32d section of the crimes act of April 30. 1790 (1 Stat. 119), is repealed by implication by the 4th section of the act of February 28. 1839 (5 Stat. 832), which extends the time to five years.</p> <p>[Cited in U. S.- v. Cook. 17 Wall. (84 U. S.) 173; U. S. v. Brown, Case No. 14,6G5.]</p> <p>2. The penalty of not less than one hundred dollars, provided in the fifth section of act of August 29, 1842 (5 Stat. 544). for the offence of marking the word "patent,” on unpatented articles, is a penalty of one hundred dollars, and no more.</p> <p>[Cited in brief in Hankins v. People. 106 Ill. G30, 634: Illinois Cent. It. Co. v. People, 143 Ill. 437, 33 N. E. 173.]</p> <p>[Cited as to form of action in U. S. v. Morris, Case No. 15,814.]</p>

Stimpson brought sixteen suits against different railroad companies or proprietors for infringing his patent for railroad curves [granted September 26. 1S351. The validity of his patent having been settled by a previous decision, the only question in these cases was the amount of damages which it was agreed should be assessed in all the cases by the same jury.

This was a demurrer to a bill in equity. The bill was filed by Sophia E. Stimpson, in her own right, and as trustee of Julia M. Colburn, and the said Julia M. Colburn, in her own right, against Rogers, Smith & Co., a Connecticut corporation, and William Rogers, Geoyge W. Smith and Elisha Colt.

<p>Case No. 13,458.</p>

[Appeal from the district court of the United States for the Northern district of Illinois.] [This was a bill in equity by James Stin-son against Jesse S. Hildrup and others.] A motion was made in .this case, in the district court, by the defendants to dismiss the bill for want of the proper signatures of counsel; and there was also a cross motion by the complainant to amend the bill by adding to the signature the words, “of counsel.” On the 15th of November the court…

<p>This was a libel on a bill of lading against the owners of the schooner Waldo.</p>

[This was a bill in equity by A. G. Sto-baugh, assignee, against J. J. Mills and Thomas L. Pitch, trustees. Heard upon bill, answer, and exhibits.]

The whole proceeding is irregular. When special bail is entered after the expiration of the six weeks after the return of the writ, notice must be given though the bail is unexceptionable. Here special bail was entered after an exception, and without notice, which was a fraud on the plaintiff.

<p>Case No. 13,464.</p> <p>'Ban'kuuptcy — Execution—Lien—Assignee.</p> <p>An execution against a bankrupt was delivered to a sheriff prior to the filing of the petition in bankruptcy. The assignee in bankruptcy took possession of the bankrupt’s property before the return day of the execution. The execution creditor, before such return day, proved his claim in bankruptcy as a claim secured by a lien as thus arising. On 1 .■ application of such creditor the assignee was ordered to pay, out of the proceeds of the property which he had sold, the amount of the execution, with interest.</p> <p>[Cited in Crane v. Penny, 2 Fed. 189.]</p>

<p>Case No. 13,465.</p> <p>Execution — Replevin Bond — Sale op Land-Valuation Laws.</p> <p>1. Securities on a replevin bond are entitled to have their land sold, under the law in force at the date of the bond.</p> <p>2. A sale on other principles will be set aside on motion.</p>

[Error to tlie district court of the United States for the district of Maine.] This was an action of debt by the United States to recover certain duties and penalties for the alleged illegal importation of shingles into the port of Bangor, in the district of Maine.

Trespass and ejectment [by Bela J. Stod-dard and others against Enos Gibbs] for certain land in Portsmouth, in the state of Rhode Island. Plea, the general issue. At the trial in June term last, the jury found a special verdict.

This action embraces three original actions brought by plaintiff against defendant upon certain promissory notes and accounts. The defendant admitted the demands, but pleaded a set-off. It appears that defendant was the general agent of plaintiff for the sale in the Northwest of an American reprint of the En-cyclopaedia Britannica, issued by plaintiff in parts, at Philadelphia. The work was to be sold by subscription, and to be furnished to defendant at certain rates.

This was a libel to recover the sum of $1,-0S3.S5, as a balance, due on a written charter party, made at New York, between the master of the schooner Indus, owned by Benjamin Stokely and others, the libellants, and the respondent, Haskell G. Smith, on the 20th of May, 1S5S. The charter party chartered the vessel to the respondent, for a voyage “from the port of New York to Port au Platte, St. Domingo, or, in case of that port being blockaded, to another open port on same…

[In the matter of Edward S. Stokes, a bankrupt.) I, Edgar Ketchum. one of the registers in said court of 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 was stated and agreed to by the counsel for the opposing parties, to wit: Mr. John Winslow who appeared for the bankrupt, and Mr. G. A.

<p>Case No. 13,476.</p> <p>Bankruptcy — Discharge — Debt Contracted by Fraud.</p> <p>Objection to discharge based upon the fact that the debt was contracted by fraud, is not good, for such debt will not be affected by the discharge.</p>

Writ of entry sur disseisin of the demand-ant. Plea, nul disseisin. ■ At the trial the demandant claimed title to the premises as follows: One Benjamin Stokes died seised of the premises in 1756, leaving a daughter, Rebecca Stokes, his heir at law, who died afterwards, in 1765, as the demandant alleged, without any lawful heirs.

<p>Case No. 13,478.</p> <p>Bank — Imi'ekpect Organization — Stockholders —Liability as Copartners.</p> <p>•1. The Bloomfield Bank was organized and commenced business without paid-up capital, without a sworn statement of its paid-up capital to the state auditor, and without any certificate from the state auditor authorizing the association to commence business — all these things being required by statute. Code Iowa, § 1570. Held, construing said section with other provisions of the statutes of Iowa, that, notwithstanding these failures, there was an imperfect organization, and it was not the case of no corporation in which the incorporators would be liable to creditors as partners.</p> <p>2. If a corporation proceeds to exercise its powers without the performance of the required conditions, it proceeds irregularly, and both the corporation and its individual members may be subjected to the penalties and liabilities prescribed by law; but it does not follow that the corporation, by reason of its delinquency in this regard, loses or forfeits ipso facto its corporate existence.</p> <p>3. Under the statutes of Iowa, a corporation for pecuniary profit becomes a body corporate ns soon as the articles of incorporation are filed in the office of the recorder of deeds.</p>

W. B. Stokes, Lucius W. Stockton, and Daniel Moore, surviving partners of R. C. Stockton, were contractors under the name of Richard C. Stockton, for carrying the mail, and besides performing the duties stipulated in their contracts, performed extra services, for which extra services the then postmaster-general (Major Wm.

[This was an action at law by William B. Stokes and others against Amos Kendall.) Motion in arrest of judgment.

<p>Case No. 13,481.</p> <p>Equity — Presumption—Admission op Interest— Rights to Fund.</p> <p>1. Where a defendant who has received a joint debt, admits the joint interest of the laintiff, but does not state its amount, which e had an opportunity of knowing, the plaintiff’s interest, nothing appearing to the contrary, shall be deemed to be an equal interest.</p> <p>2. Where it appears that a plaintiff is entitled to the whole of a given sum in certain given rights, it is no objection to his recovery of it that it is not shown how much he is entitled to in each right.</p>

This was a bill of interpleader, brought by the complainant [Phineas J. Stone], as president of an institution for savings, to determine to which of two claimants a fund or deposit in the bank belonged. “If the settler proposes to convert himself into a trustee, then the trust is perfectly created, and will be enforced so soon as the settler has executed an express declaration of trust, intended to be final and binding upon him. and in this case it is immaterial whether the…

The case was, that the Washington, the property of defendant, in her passage from Batavia to Philadelphia, observing a schooner, the property of the plaintiff, on her outward passage, and with colours flying, bore down upon her, supposing she wished to speak her. Upon approaching her, the wind variable and dying away, it was found she would not obey her helm, which was put in the proper situation to avoid running against the schooner.

[This was a libel by Alden Stone, Williams, and others against the schooner Relámpago (Wakeman, master), to recover passage money.]

Case [by Amasa Stone against William and Amasa Sprague] for an infringement of a patent right for a new.and useful improvement on looms, not known or used before. Plea, not guilty, with notice of special de-fence.

<p>Case No. 13,490.</p> <p>Specific Performance — Part Performance— Limitation of Actions — Time When Statute Begins to Run.</p> <p>1. A specific execution of a parol contract for the sale of lands will be decreed by a court of equity, when it has been partly performed.</p> <p>2. But in the sense of equity, when a specific performance of such a contract is sought, those acts only are considered as part performance ■which would operate as a fraud on parties unless the whole contract is executed.</p> <p>3. The payment of part of the price .is not such an act. But admitting the purchaser to take possession under the contract, and to lease tlie land, or make improvements imon it. is. in the sense of a court of equity, a part pe-formance.</p> <p>4. By the statute of limitations in Maine, in an action on a mutual and open account current, the right of action for the whole balance is deemed to have accrued at the time of the .last item proved in the account. But if a party sleeps on a demand without entering it on his account, until the period of limitation is elapsed, hé cannot extract it from the statute by entering it afterwards on his account.</p> <p>5. Where a party has an unliquidated demand. the limitation begins to run from the time when the right of action accrues.</p> <p>6. But if the parties, after the right of action has accrued, come to a settlement, and determine the sum due by mutual agreement, the limitation begins to run from the time of such settlement.</p> <p>[Cited in Augerais v. Naglee, 74 Cal, 60, 15 Pae. 374.]</p>

<p>In June, 1870, Storrs Brothers filed in this court a creditors’ petition in involuntary bankruptcy, against Engel & Son, retail dry-goods merchants of Richmond, Virginia. There was an adjudication of bankruptcy upon the petition on the 23d of the same month. Among other acts of bankruptcy relied upon, the petition charged that within six months before the filing of the petition, to wit, on the 16th of May, 1870, the defendants had sold, in block, the contents of their store in Richmond, being their whole stock of drygoods in trade, for a lump sum, to one Lisberger; that this was a sale in fraud of creditors, by an insolvent, in contemplation of bankruptcy; that Engel & Son’s insolvent condition was known to Lisberger; that Lis-berger was party to the fraud, and was then selling and disposing of the goods in question. The petition, therefore, prayed for an order of seizure against the goods. The petition was supported by the usual affidavits. The court thereupon immediately entered an order directing the seizure of the stock of goods, which was executed by the marshal on the same day. On this same day Lis-berger filed his petition denying the charges of the creditor’s petition affecting the bona fides of his purchase of the stock of goods from Engel & Son, and praying that, on his executing to the marshal a bond, with security approved by the marshal in such penalty as to the court might seem proper, conditioned for the forthcoming of the said goods or the value thereof, and to abide such further order as might be made by the court, the stock of goods might be returned to him. The court on the next day granted the prayer of Lisberger’s petition, in an order running nearly in the terms of its prayer; and on the same day, on Lisberger entering into a bond to the marshal, conditioned as described, in the penalty of eight thousand dollars, with M. Rosenbaum and two other persons (who have since become discharged bankrupts) as sureties, the marshal delivered the stock of goods to him. M. Rosenbaum was one of the principal creditors of Engel & Son, and proved his claim in bankruptcy. The bond was joint and several.</p> <p>In due course of proceeding, Otway D. Brown was afterwards elected the assignee of Engel & Son in bankruptcy, and qualified as such. Brown was a clerk in the employment of Rosenbaum, who is a large wholesale drygoods merchant of Richmond. Counsel for most of the creditors desired a proceeding to be instituted for the purpose of annulling the sale which Engel & Son had made of the stock of goods to Lisberger, but Brown refused to take the proper steps for the purpose, alleging, in excuse, the opposition of his employer, Rosenbaum, to such a measure. Finally, after the lapse of several months, Brown was, on petition of creditors, removed as assignee, and the present as-signee, E. M. Garnett, was appointed on the 4th of April, 1S71.</p> <p>On the Ilth day of that month, Garnett file a petition in the bankruptcy proceeding, charging in detail the fraudulent character of the sale, and praying that Lisberger, M. Rosenbaum, and the other sureties in the bond, which had been given as mentioned, should be made parties defendant. This petition was ultimately directed by the court to be treated as a bill on the equity side of the district court (Lisberger v. Garnett [Case No. 8,383]), was referred to rules, and was then proceeded in as a plenary suit in equity, and not as a summary proceeding in bankruptcy. The result of the litigation thus instituted was a decree of the district court, made on the 10th day of May, 1876, pronouncing the sale of the stock of goods to Lisberger to have been fraudulent; and, inasmuch as they had been sold by Lisberger after delivery to him, fixing their value when received from Engel & Son at five thousand six hundred and eighteen dollars and fourteen cents; and decreeing the payment by Lisberger and his sureties to Garnett, as-signee, of that sum, with interest from the 16th day of May, 1870, until payment and costs. From this decree an appeal was taken by Lisberger to the circuit court of the United States for the district, on the 16th day of May, 1876, when he gave an appeal bond, with sundry persons, other than Ros-enbaum, as sureties, in the penalty of nine thousand dollars, conditioned to prosecute an appeal with effect, or else to answer all costs and damages which the appellee might be decreed to pay. On the 9th of October, 1877, the circuit court affirmed the decree of ■the district court, and directed execution to issue as at law for the amount of the original decree; whereupon Lisberger took an appeal to the supreme court of the United States, giving an appeal bond, with sundry sureties other than those on the other two bonds, in the penalty of twelve thousand dollars. This appeal was dismissed from the supreme court at its October term of 1878. On the 13th of November, 1878, executions were issued against Lisberger upon the decree of the circuit court, upon which an aggregate sum of one thousand one hundred and eighty-five dollars and forty-eight cents has been realized, and from which it appears that Lisberger, who has since died, was insolvent. It is shown that he has no personal estate, and that he has real estate in the city of Richmond, though doubtless insufficient to satisfy the decree in favor of Gar-nett, assignee.</p> <p>On the 17th of January, 1879, this assignee filed his petition in this court in the bankruptcy proceedings of Storrs Brothers v. En-gel & Son, reciting the facts which have been detailed, and praying that M. Rosenbaum and the two sureties with him in the original delivery bond of the 18th of June, 1870, may be required to show cause here why they should not be ordered to pay the residue of the value of the stock of goods not satisfied by the executions mentioned, in accordance with their obligation given to this court as a condition of its surrender to Lis-berger of the stock of goods in question at the date of this bond. Rosenbaum demurred to this petition on the ground, first, that the proceeding should be a plenary suit at law on the bond, and that the defendant is not liable to be proceeded against by a summary petition in bankruptcy for a recovery upon the writing obligatory; and, second, that any proceeding on the bond should have made Lisberger, the obligor, who was living at the filing of the petition, a party thereto. The demurrer was overruled by the court, which held that the bond, having been given to the court itself, conditioned to abide its decree in the matter, no proceeding other than by motion or petition was necessary; and which also held that the bond being several, either obligor might be proceeded against severally, or together, as the plaintiff in the decree might elect.</p> <p>Thereupon the defendant Rosenbaum filed his answer to the petition, resisting its prayer on various grounds, viz.:</p> <p>(1) That the order of seizure made on the 17th of June, 1870, by virtue of which the stock of goods was seized, and the bond for their forthcoming or the value of them given, was issued without authority of law, that the said seizure was illegal, and that the said bond so taken was taken without authority of law, and is in law null and void, and of no effect to bind the respondent.</p> <p>(2) That even if respondent were bound by said original bond, yet that he and his co-sureties were wholly absolved and discharged from all liability upon the same, by reason of the granting and allowance of the two appeals, which were taken by Lisberger, and the execution of two appeal bonds given thereon, to which bonds and proceedings this respondent was not a party; by which bonds and proceedings the responsibility for, the said stock of goods was transferred to the sureties in the appeal bonds, who, re-* spondent avers, were and are perfectly solvent, and liable in law to answer for the default of Lisberger.</p> <p>(8) That at the time that the decree of this court was pronounced declaring invalid the sale by Engel & Son to Lisberger of the stock of goods in question on the 16th of May, 1870, the said Lisberger was amply responsible, and had sufficient goods and estate to pay the said decree in full; that if Lisberger has become insolvent it was while the proceedings on said appeals were pending, and that the consequences of said insolvency cannot in law and equity be made to fall on this respondent, but should fall on those by whom said appeals were prosecuted and maintained.</p> <p>(4) That respondent is informed and believes that Lisberger died seized of valuable real estate in the city of Richmond; that the same ought to be sold in due course of law. and the net proceeds applied in discharge, as far as it will go, of said decree; that until that be done there is no legal evidence of the insolvency of Lisberger. or the inability of his estate to pay said decree; that before this respondent can in law be held for this decree, the extent of the deficiency of the estate to pay the same should be first ascertained by such sale and • application of its proceeds, in order that respondent may have the benefit of the same, and to this end:</p> <p>(5) That the personal representative of Lis-berger should be made a party defendant to this petition.</p> <p>cited U. S. v. Kellogg, 7 Wall. [74 U. S.] 361; Catlett v. Brady, 9 Wheat. [22 ü. S.] 553; 6 Gray, 141; 2 Gill & J. 431; 6 Har. & J. 431; Sessions v. Pintará [Case No. 12,674], note; 4 Smedes & M. 210; Winston v. Rives, 4 Stew. & P. 269; U. S. v. Hillegas [Case No. 15,366]; Pow. App. Proc. p. 275, § 17, and Id. p. 371, § 19; Nelson v. Anderson, 2 Call, 242 [287]; Cook v. Marsh, 44 Ill. 178; Patton v. Vially, 1 Cranch [5 U. S.) 463; Mayo v. Williams, 17 Ohio, 244; Gross v. Pearcy, 2 Pat. & H. 4S3; and Clarkson v. Read, 15 Grat 288, 289.</p> <p>cited section 5024, Rev. St. U. S., at close of section, letter C; Bump, Fraud. Conv. 447; Brandt Sur. p. 535, § 394; Dolby v. Jones, 2 Dev. 109; Ashby v. Sharp, 1 Litt. (Ky.) 156; Smith v. Falconer, 11 Hun, 481; Hinckley v. Kreistz, 58 N. Y. 583; Shannon v. McMullin, 25 Grat. 229, 230; Miller v. Dowse, 94 U. S. 444. And on the demurrer: Taylor v. Carroll, 20 How. [61 U. S.] 594; Russell v. East Anglian Ry. Co., 3 Macn. & G. 104; Freeman v. Howe, 24 How. [65 U. S.] 457; [Ableman v. Booth] 21 How. [62 ü. S.) 506; [Cooper v. Reynolds] 10 Wall. [77 U. S.] 308; 1 Wall. [68 U. S.] 344-354; Lisberger v. Garnett [Case No. 8,3S3]; In-busch v. Farrell, 1 Black [66 U. S.] 572; [Blossom v. Milwaukee & C. R. Co.) 1 Wall. [68 U. S.] 655; Minnesota Co. v. St. Paul Co.. 2 Wall. [69 TJ. S.] 634; Wiswall v. Campbell. 93 U. S. 351; Smith v. Gaines, Id. 342; and Moore v. Huntington, 1 Black [66 U. S.] 572.</p>

[This was a bill in equity [by Levi B. Storrs against Patrick Howe and others] for the infringement of certain extended letters-patent granted the complainant for the pressing machine for… Held: and which, as he alleged, were granted to him for inventions of which he was the original and first inventor, as follows: one dated Oct. 10, 1871, for an improvement in clothes-pressing machines, the other dated Dec. 12, 1871, for an improvement in machines for pressing cloth.

2 [Complainants are executors of Joseph Story, deceased, who was the author and proprietor of the copyright of “Commentaries on Equity Jurisprudence.” Defendants are the authors and publishers • of “An Introduction to Equity Jurisprudence, on the Basis of Story’s Commentaries.” The bill alleges that the latter is an infringement upon the former in three respects: (1) That the work is derived from the Commentaries; (2) that its plan, combination, and arrangement of materials,…

<p>[This was a bill for an injunction by Sarah W. Story and others against H. W. Derby and others.]</p>

<p>[This was a libel in equity by Stotesbury and others, assignees of the Franklin Savings Fund Society, bankrupts, against Cyrus Cadwallader and others.]</p>

<p>Case No. 13,499.</p> <p>Removal or Causes — When Removable.</p> <p>A cause was noticed for trial by the plaintiff, at a term of the state court, and a note of issue for that term was filed by the plaintiff. Both parties consented that the cause go off for the term, and it was not tried. After the term expired the defendant removed the cause into this court, under the act of March 3, 1875, (38 Stat. 470:) Held, that the removal was not in time, not having been made before or at “the term at which said cause coiild be first tried.”</p> <p>[Cited in Forrest v. Edwin Forrest Home, 1 Fed. 462; Wheeler v. Liverpool, L. & G. Ins. Co., 8 Fed. 198; Johnson v. Johnson, 13 Fed. 193.]</p> <p>[Cited in Eldred v. Becker, 60 Wis. 45, 18 N. W. 642; First Nat. Bank v. Conway, 67 Wis. 218, 30 N. W. 218.]</p>

<p>Case No. 13,500.</p> <p>Neutrality — Seizure by Military Officer — Personal Liability — Limitation of Actions.</p> <p>1. Where an officer belonging to a military force ordered out by the president, under the 8th section of the neutrality act of March 10. 1838 (5 Stat. 214), “to prevent the violation and to enforce the due execution” of the act, and instructed by his commanding general to execute that purpose, seized property, as a precautionary means to prevent an intended violation of the act, with a view of detaining it until an officer having the power to seize and hold it, for the purpose of proceeding with it in the manner directed by the statute, could be procured and act in the matter: Held, that the seizure was lawful.</p> <p>2. Where the property so seized by such officer was a vessel, which was not intended to pass the frontier herself, but was laden with arms and munitions of war. which were intended to be transported across the frontier, for the use of insurgents in Canada, then in arms, near the line, against Great Britain, and the vessel was wrecked the same night, without any fault on the part of the officer: Held, that an action of trover for the vessel could not be sustained against him.</p> <p>3. Circumstances stated under which a plaintiff is chargeable with knowledge of the ex istenee of attachable property of a defendant in the state of Vermont, so as to cause the statute of limitations of that state to run in favor of the defendant, even though he be personally absent from the state.</p>

[This was a bill in equity by Stoughton & Peck against B. Hill.] Heard upon pleadings and evidence for final decree. The facts are stated in the opinion of the court.

This was an action brought to recover the sum of $15,000 damages resulting to the plaintiff [Harry G. Stout], a minor child aged six years, on account of injuries received while at play upon the “turntable” of the railroad company, in March 1869.

This is an action by an infant [Harry G. Stout], by his next friend, to recover damages for a personal injury, caused by the turntable of the defendant. The material facts appear in the charge of the court to the jury, given oelow.

This suit [by Fred. A. Stoutz against James E. Brown and John Finley) is brought to quiet title and to remove a cloud created by certain taxes and tax-deeds upon a portion of the lands lying in Otoe county, Nebraska, which are known as the “Alabama School Lands.” By act of congress of June 22d, 1854, certain school districts in the state of Alabama were allowed to select from the government lands certain tracts in lieu of sections 16 and '36 in a certain district of Alabama,…

William Stover, who represents the claimants of certain fishing vessels, shows by his petition that, in June, 1847, these vessels were seized and libelled in the district court of the United States for the district of Rhode Island, on account of an alleged violation of the laws of the United States; and that the petitioner having intervened, and claimed the vessels in behalf of the owners thereof, was obliged to pay to the officers of the court certain fees, growing out of…

<p>Case No. 13,507.</p> <p>Costs — Dismissal without Costs to Either Party.</p> <p>1. Where a third person appears and defends a suit in admiralty, in behalf and in the absence of the party to the suit, he is to be treated as a party, and made liable, personally, for the fees of the clerk of the court, for services rendered in the cause at his request</p> <p>[Cited in The Maggie M., 33 Fed. 592.]</p> <p>2. Where a decree is made, dismissing a libel in admiralty, “without costs to either party,” it merely imports that the parties are not liable to each other for any costs, but does not affect the liability of a party to the clerk for his fees for services rendered to such party.</p> <p>[Cited in Goodyear v. Sawyer, 17 Fed. 5; U. S. v. Ames, 99 U. S. 43.]</p> <p>[See Case No. 11,184.]</p>

[This was a bill in equity by Henry D. Stover and J. A. Fay & Co., against Ezekiel S. Halsted and Gilbert W. Merritt, for an injunction to restrain the infringement of letters patent No. 32,904, granted to H. D. Stover July 23, 1861.]

A bill in equity was filed by an assignee in bankruptcy to set aside a confession of judgment as in fraud of the bankrupt act.

<p>Case No. 13,512.</p> <p>Patents — Foncitons of Device — Wooden Pavements — Infringement—Contractor— License — Rovai.ty.</p> <p>1. A principal is not liable for the claim of a patentee under work done by a contractor who held a license, even though he has not paid his license fees or royalty.</p> <p>2. If a device in use will perform a certain function or office, it is immaterial whether the patentee describes such performance, or even knew that it would so operate.</p> <p>3. The use of wedge-shaped blocks in making a pavement is not patentable; that being the principle long since applied in laying cobble stone pavements.</p> <p>4. Uniformity of spacing, and the use of a strip to secure the same in laying a pavement, is not patentable.</p> <p>5. A mere change of material, as from stone to wood, or vice versa, is not patentable.</p> <p>6. Mere matter of judgment as to the amount of force to be used, is not patentable.</p> <p>7. An English patent is a matter of public record in that country, and also in this country, by patent and by publication.</p> <p>8. Omission of an element from a .patent, so that the less number of parts will perform all the functions of the greater, is not an invention.</p> <p>9. Degree of force, in ramming or swaging, is not patentable.</p> <p>10. Sundry patents and processes for pavements commented upon.</p> <p>111. A reconstruction of a machine so that a less number of parts will perform all the functions of the greater may be invention of a high order, but the omission of a part with a corresponding omission in function, so that the retained parts do just what they did before in the combination, is a mere matter of judgment. depending upon whether it is desirable to have the machine do all, or less than, it did before.]</p> <p>[Gited in McClain v. Ortmayer, 33 Fed. 287.]</p>

The bankrupt applied, within four months of the proceedings in bankruptcy, to God-frey for a loan of money, and agreed to give him a mortgage, as security, on his stock in trade in his store in Oldtown.

The act of congress (Act Feb. 3, 1831 [4 Stat. 436]) respecting c.opy-rights gives to the “author of any book” the “sole right and liberty of printing, reprinting, publishing and vending such book:” and if any other person shall print, publish or import, &c., “any copy of such book” without the consent, &c., affixes certain penalties for the infringement of copy-right.

<p>Case No. 13,615.</p> <p>Internal Revenue — Distillery—Suspension.</p> <p>The plaintiff in this case [E. H. Stowell] was a distiller at Deerfield in the Third collection district of Ohio, and brought his action against [Robert Williams, Jr.] the collect- or for illegally requiring him to pay the sum of $2,100, which was paid under protest, and which he now sought to recover back in an action in the state court. The case was brought to this court by writ of certiorari. The petition or declaration averred that the plaintiff was a distiller, and had paid all the taxes due on the spirits distilled by him during the month of January, 1871, but that during that month an explosion of the boiler occurred, and his machinery was so injured by the accident that he stopped working for five days, until the repairs enabled him to proceed; that during these five days he neither mashed nor distilled. He had notified the assessor of the district of the unavoidable accident, and had requested him in writing to legally suspend the operations of his distillery, to lock up the furnaces, etc., as required by law. But that the assessor paid no attention to his request; and although he (the distiller) had paid to the collector 80 per centum of the working capacity of the distillery for that month, the assessor, nevertheless, assessed upon him the taxes for the five days during which he had been prevented from running by reason of the explosion and accident above referred to. He had paid under protest, and had appealed to the commissioner of internal revenue, where the case was still pending. .To this declaration the district attorney, who appeared for the collector, filed an answer, setting up: That at the time of said alleged explosion and injury to the machinery of the distillery there were large quantities of mash and beer on hand in the tubs; that the assessor notified the distiller that he must either fix the intended time of suspension, so as to enable him to run off the mash and beer on hand, or he must destroy the said mash and beer, before a legal suspension could take place. This the distiller (the plaintiff) refused to do; hence the assessment and exaction of the taxes as required by law. The plaintiff filed a general demurrer to the answer.</p>

<p>This was a petition by J. R. Stowers alleging that he had been a partner with one Johnson, and that the firm had been lately dissolved, but was insolvent, and praying that a joint warrant be issued against their estate. There were allegations tending to impeach the fairness of the dissolution on the part of Johnson. The evidence was that Stowers bought out Johnson and paid him five thousand dollars for his interest in the joint assets, and gave him a bond to pay all the joint debts, and very soon after discovered that he had paid him too much. Stowers then sold out the stock in trade to Cobb & Co., taking notes on long time, and offered to settle with the creditors for seventy-five per cent of their debts. Failing in a settlement, be brought this petition.</p>

This was an action of trespass for false imprisonment [by Isaac Stoyel against John Lawrence]. Plea, not guilty. On the trial it appeared that one Job Smith had obtained a judgment, before the Windham county court, against the plaintiff, and had taken out an execution, dated the 13th of May, 3804, returnable according to law.2 On the 25th of August, 1804, Lawrence was deputed by the sheriff of Windham county to execute it.

In bankruptcy. Objection by creditors to proof of debt by William T. Henry, against the estate, certified to the court by the register.

<p>Case No. 13,520.</p> <p>Couhts — Following State Pkactice — Remedies.</p> <p>The circuit courts of the United States adopt the local remedies of the respective states.</p>

<p>[Error to the district court of the United States for the Southern district of Georgia.]</p>

This is a petition in favor of Stranaban, assignee of Mark Bannister, bankrupt, praying that the defendants, Gregory & Co., be adjudged to pay to said assignee two hundred dollars, alleged to have been paid to Gregory & Co. by the bankrupt, in fraud of the bankrupt law [of 1867 (14 Stat. 517)]. Defendants’ plea denies that they had any knowledge of the insolvency of the bankrupt, or that they had any reason to suppose that he was insolvent when the money was paid.

This cause was heard upon a petition filed therein by the Louisville & Nashville Railroad Company.

This was a libel against tlie tug Stranger, for unskillful towing of the schooner Mont-eagle through the Sault Ste. Marie canal on the 24th of June, 18(3S, in consequence of which she was caused to strike a sunken rock at the entrance of the canal, near its westerly side, breaking a hole through her bottom, and causing her to sink just below the lower lock. Schooner claims damages for salvage expenses, repairs, detention, &c., in the sum of $5,746 40.

Heard upon petition to review a decree of the bankrupt court awarding to the United States priority in the payment of its judgment out of the bankrupt assets.

<p>This was a libel for seamen’s wages on board brig Iddo Kimball, of which the respondent was master.</p>

<p>Case No. 13,528.</p> <p>Attachment — What Liable — Treasurt Certificate — Garni shm ent.</p> <p>1. The undivided interest of the defendant in a negotiable treasury certificate issued in payment of an award can be attached in the hands of a garnishee.</p> <p>2. Where a negotiable certificate is issued by a garnishee who is indebted to the defendant, the attachment becomes a lien on the amount of the certificate while in the hands of the original owner even before or after maturity.</p>

<p>Case No. 13,529.</p> <p>Sai-vage — Corporation' —Work and Labor-Costs.</p> <p>1. A British ship, worth, with her cargo, $250,000, in attempting to enter the port of New York, at night, lost sight of the coast lights in a snow squall. Her port anchor was let go, but the chain parted. Her starboard anchor was then dropped. She dragged some distance, but finally brought up at the edge of the Romer shoal, in 27 feet of water, the tide being high. She drew 19% feet aft. and, when the tide fell, there was but 21 feet of water under her, and, there being considerable sea on. her stern sometimes thumped heavily. About six o’clock the next morning, a steam-tug, owned by a corporation incorporated for the purpose of wrecking, came to her, and a conversation passed between the masters of the two vessels, in which the master of the tug said he would tow the ship off for $1000, and the master of the ship offered $500. It was finally agreed that the tug should render assistance, and that the amount of compensation should be left to arbitration. The tug then took hold of the ship, and, with the aid of another tug belonging to the same corporation, got the ship off about noon, parting a hawser several times in doing so, and brought her up to New York, arriving there about four o’clock p. m. The wind had shifted from the eastward to south and west about the time the first tug came up. The owners and masters of the two tugs filed a libel against the ship and her cargo, for themselves and all interested, claiming $25,000 salvage. It appeared that the masters and crews of the tugs were employed on fixed rates of compensation, and would receive no share of the recovery: Held, that the ship was in a condition to be the subject of a salvage service.</p> <p>2. As the masters and crews were to have no share in the recovery, they must be wholly left out of the case.</p> <p>3. The corporation could not claim as assignee in advance of what might otherwise be the claims of its hired servants for salvage.</p> <p>4. The corporation itself could not be a salvor; what the law recognizes as the main element in a salvage service, namely, the impulse to boldness and heroism, being wholly wanting in the case of a corporation.</p> <p>5. The corporation was entitled to a proper compensation for the use of its two steamers, and of such of the appliances on board as were used in the service, without reference to the value of the ship and her cargo.</p> <p>6. The hazard to the tugs was to be considered in fixing such compensation.</p> <p>-7. .$1,500 was ample compensation, and, as the claimants had offered, before suit brought, to pay $2,000 by way of compromise, no costs would be allowed to the libellants.</p> <p>[Cited in The Plymouth Bock, 9 Fed. 417.]</p> <p>[On appeal to the circuit court, the above de-. cree was affirmed. Case No. 13,530.]</p>

<p>Cases No. 13,530.</p> <p>Salvage — Nature of Service — Towage — Negotiates for Compensates.</p> <p>A service by steam tug boats, in towing off, by hawsers, a vessel which was aground, compensated. but not as a salvage service, where an exorbitant sum was claimed for the service, as a salvage service, where no peril of life or extraordinary risk of property was involved, where the service was not accepted by the ship as a salvage service, and where it proceeded upon a negotiation for compensation not involving any idea of salvage.</p> <p>[Cited in Baker v. Hemenway, Case No. 7.70.]</p>

The declaration alleges that the plaintiffs [Frederick Strause and others] are copart-ners and private bankers under the firm name of “The Citizens’ Bank,” at Ligonier, Indiana; that on the 25th day of December, 1875, a bill purporting to have been drawn by the Citizens’ National Bank of Peru, Indiana, on Winslow, Lanier & Co., at New York, foi; $2,180, was presented at the plaintiffs’ bank to be discounted; that the plaintiffs at once telegraphed to the Peru bank, asking if…

<p>In bankruptcy.</p>

[Error to the district court of the United States for the district of Maryland.] This was an action of assumpsit [by Dawson, assignee in bankruptcy of Gover, Hard-esty & Co., against J. M. Street] in the district court.

This was a bill in equity to charge the land, •or rather the proceeds of the sale of the land, in the hands of a trustee who had sold it under a decree of this court on a bill filed by creditors of the late George King, to charge the Teal estate, for the deficiency of personal assets for the payment of his debts.

This was a libel for work, materials, &e. fby David A. String and Maria A. Wood .against John P. Hill, late owner of the sloop itegulus],

<p>[This was a libel by David H. Stringham against Otto Sehloener to recover for supplies furnished the Grapeshot.)</p>

In May, 1795, a judgment was obtained in this court, in favour of Rebecca Backhouse, administratrix of John Backhouse, deceased, against Adam Hunter and Abner Vernon, executors of James Hunter, deceased, surviving partner of “Ward & Hunter,” for $8238 45, to be levied of the goods and chattels of the said James Hunter, deceased, in the hands of the defendants, to be administered.

A decree was rendered in this court, in favour of the representatives of John Back-house, against Robert Patton, administrator with the will annexed, of James Hunter, deceased, appointing the said Patton and others, special commissioners, with directions to any two or more of them, to sell, on a credit of twelve months, at public auction, all the real estate whereof the said Hunter died seized, which remained unsold by his executors, for certain purposes set forth in the…

[Appeal from the district court of the United States for the district of Maryland.] In admiralty. This was an appeal from the decree of the district court, condemning the above-named vessel, upon the ground that she was built, fitted out and equipped, at the port of Baltimore, for the purpose of being employed in the slave-trade. The vessel was seized and proceeded against under the second section of the act of the 20th of April, 1818, c. 91.

<p>Case No. 13,540.</p> <p>Collision — Grounded Vessel — Demurrage-Presumptions.</p> <p>1. Where a schooner had grounded in the entrance to a dock, and a brig that was ready for sea undertook to haul by her after her officers were warned that there was not room enough, and became jammed, and both vessels were injured; held, the brig was solely to blame.</p> <p>2. Demurrage is allowed in cases of collision for the time the injured vessel is necessarily detained, if she has lost employment.</p> <p>[See The Baltic, Case No. 824.]</p> <p>3. A coasting schooner (collier) during the busy season may be presumed to have lost employment.</p>

[This was a libel for freight and demurrage by Heman Norton Strong against a certain quantity of wheat, the cargo of the Convoy; Frederick T. Carrington and William J. Preston, claimants.]

This was a creditor’s bill filed by complainant [Edward Strong] as judgment creditor of Philip Goldman.

[This was a bill in equity filed [by Henry A. Strong and Edmund F. Woodbury] to restrain the defendants [Reuben Noble and others] from infringing letters patent [No. 60,606] for an “improvement in whips,” granted to complainants as assignees of the inventor, Edmund F. Woodbury, December IS, I860.] 2 This was a final hearing, on pleadings and proofs.

[This was an action at law by Charles E. Strong, receiver of a national bank, against John P. O’Neill, receiver of the Continental Life Insurance Company, to recover an assessment on certain shares of the bank’s stock held by the insurance company. A verdict was directed for plaintiff, and defendant moved for a new trial.]

<p>Case No. 13,645.</p> <p>National Banks — Stockholders — Assessment by Comptroller — Demurrer.</p> <p>A stockholder in a national bank demurred to a complaint of the receiver of the bank, who had sued to recover the amount of an assessment, laid by the comptroller of the currency upon the stockholders, to wind up the affairs of the bank alleging as a ground of demurrer that the complaint did not show that the assessment was needed by the receiver; Held, that the decision of the U. S. supreme court, upon this point, in the case of Kennedy v. Gibson, 8 Wall. [75 U. S.] 498, that as to the necessity of an assessment and its amount “the determination of the comptroller is conclusive,” was not obiter dictum, and therefore must control in this case, and the demurrer must be overruled.</p> <p>[Cited in Stanton v. Wilkeson, Case No. 13,-299; Young v. Wempe, 46 Fed. 355.]</p>

<p>Case No. 13,644.</p> <p>Deeds — Acknowledgment — Certificate of Authority-Notice — Paramount Title.</p> <p>1. When a deed is executed out of Indiana, for land within it, and which is acknowledged before a justice of the peace, under the Indiana statute, the clerk of the county should certify as to the authority of the justice and not the secretary of state.</p> <p>2. A deed not acknowledged, in Indiana, is valid between the parties, and when proved may be received in evidence. But such deed until properly acknowledged, though recorded, is not notice.</p> <p>3. A deed valid between the parties, executed before an attachment is laid upon the land, and the deed being properly acknowledged and recorded, before the deed under the attachment, which was not recorded within twelve months, conveys a paramount title.</p> <p>[Cited in Story v. Black, 5 Mont. 20, 1 Pac. 11.]</p>

<p>Case No. 13,546.</p>

<p>Case No. 13,546a.</p> <p>Pleading at Law — Non Assumpsit — Burden of Proof— Common Law — Statute.</p> <p>1. At the common law, non-assumpsit put the plaintiff to the proof of all the material aver-ments in the declaration, and where he relied on an indorsement, it was necessary for him to prove it.</p> <p>2. By statute, the writing on which the suit is founded is receivable without proof of execution. unless the execution is denied on oath; but this does not embrace an indorsement where the suit is not founded on the indorsement, and in such case, without proof of execution, the plaintiff is not entitled to judgment.</p>

This is a bill in equity, in which the plaintiff [James W. Stroud] claims to be one of the persons protected by the 17th article of the treaty hereinafter referred to, and in which he seeks to compel the defendant (who holds the legal title to the one hundred and sixty acres of land in controversy), to convey the same to him. All questions as to form of pleadings, sufficiency of tender, etc., are waived.

<p>Case No. 13,548.</p> <p>Internal Revenue — Production or Books — Disclosures — How Protected — Constitutional Law.</p> <p>. 1. Proceedings under the 14th'section of the revenue act to compel the production of books, and giving of evidence before an assessor, are civil, and not criminal.</p> <p>2. The examination of the books of a person under that section, is not an infringement of article 4 of amendments to the constitution of the United States, protecting persons from unreasonable searches, etc.</p> <p>[Cited in Re Platt, Case No. 11,212.]</p> <p>3. Disclosures so made, are protected by the act of February 25, 1868, and cannot be used against the person making them before any court or officer of the United States.</p> <p>4. The person summoned before the assessor, must not only produce his books, but must submit them to examination, and testify concerning entries therein.</p> <p>,5. Section 14 of the act of June 30, 1864, as amended by section 9 of the act of July 13, 1866 (14 Stat. 101), construed.</p>

[This was a libel in rem against the brig Cuba and cargo by Daniel J. Strout, master and part owner, and by the crew, under a claim of salvage for recapturing her from the prize crew of a Confederate cruiser. The underwriters of the cargo appeared as respondents.]

<p>Case No. 13,550.</p> <p>Embauco and Nonintebcourse — Bond — Condition — Repelí vert to Claimant.</p> <p>1. A bond voluntarily given upon the delivery of property on bail, on application of the claimant, is good, although the condition does not exactly conform to the 89th sect, of the act of 2d March, 1799, c. 128 [1 Story’s Laws, 653; 1 Stat. 695, c. 20].</p> <p>[Cited in George v. Tate, 102 U. S. 571: Munks v. Jackson, 13 C. C. A. 641, 66 Fed. 574.]</p> <p>2. Even if such bond were void, the court would, by attachment, enforce a redelivery of the property by the claimant.</p> <p>See U. S. v. Woollen Cloth (Case No. 15,-150]; The Nied Elwin, 1 Dod. 50.</p> <p>[Cited in Bank of U. S. v. Brent, Case No. 910.]</p> <p>3. The 89th sect, of the act of the 2d of March, 1799, c. 128 [1 Story’s Laws; 653; 1 Stat. 695. e. 20], does not extend to delivery on bail, on seizures under other acts.</p> <p>[Cited in Fifteen Pieces of Black Silk, Case No. 4,779.]</p>

<p>Case No. 13,551.</p> <p>Copyright — How Secured.</p> <p>Under section 4 of the copyright act of February 3d, 1831 (4 Stat. 437), in order to secure a copyright to a book, a printed copy of its title must be deposited in the proper clerk’s office, before its publication, and, within three months after its publication, a copy of it must be delivered to such clerk.</p> <p>[Cited in Donnelley v. Ivers, 18 Fed. 594.]</p> <p>[See Baker v. Taylor, Case No. 782.]</p>

<p>Case No. 13,652.</p> <p>Bill op.Lading — Shoktage of Cargo — Evidence.</p> <p>[The wharf being the place of delivery, evidence that 38 hogsheads of sugar, the full number called for by the bill of lading, were placed thereon, will exonerate the ship, as a gainst evidence that only 37 hogsheads were received at the consignee’s storehouse, whither his own cartmen conveyed them.]</p>

In equity. Final hearing on pleadings and proofs. Suit brought upon letters patent [No. S0.235] for an “improved guard-plate for stoves,” granted to complainants [David Stuart and others], as assignees of David Stuart and Alexander Wemys, July 21, 1S68. The defendants [Enos Shantz and others] set up in defense a license under a patent granted William L. McDowell, April 28, 1863.

I, Charles Hamlin, one of the registers of said court in bankruptcy, do hereby certify that in course of the proceedings in said cause before me, the following question arose pertinent to the said proceedings, and was stated and agreed to by the opposing parties, to wit: Mr. Sweden S. Patten, who appeared for himself, and Charles P. Stetson, Esq., assignee of said Stubbs in bankruptcy.

The libellant [Leonard Studley] alleged that in January, 1870, he engaged as mate on board the schooner Harriet Gardner for the general coasting service from port to port in the United States during the season, at monthly wages, and served therein until the times after mentioned.

<p>Case No. 13,562.</p> <p>Extkadition— Jurisdiction to Tut the Crime— Treatt with Prussia — Crimes Committed bv Prussian Subject in Belgium.</p> <p>1. The extradition convention, of JunelG. 1852 (10 Stat 964), between the United States and Prussia, for “the mutual delivery of criminals, fugitives from justice,” in certain cases, provides, that the contracting parties shall, on requisition, deliver up to justice all persons who. being charged with the crimes therein specified,' “committed within the jurisdiction of eitheT party, shall seek an asylum, or shall be found, within the territories of the other.” S., alleged to be a native of Prussia, and since his birth and still a subject of the king of Prussia, was arrested in the United States, for extradition to Prussia, charged with having committed, at Brussels, in Belgium, “and within the legal jurisdiction of Prussia,” crimes specified in said convention. It was alleged, that, inasmuch as such crimes were, at the time they were committed, punishable by the laws of Belgium, S.. being, when they were committed, a subject of Prussia, was, by the laws of Prussia, subject to be punished for said crimes in Prussia; that a prosecution against him therefor had been commenced in Prussia, and a warrant of arrest therefor had been issued against him by the proper judicial tribunal in Prussia having jurisdiction thereof; and that, immediately after committing the crimes, he had fled trom the justiceiof Belgium and Prussia. There was no extradition treaty between the United States and Belgium: Held,, that the case was one within the said convention.</p> <p>2. The provisions for extradition contained in the treaties and conventions for that purpose between the United States and foreign countries, considered, as bearing on the meaning of the word “jurisdiction,” used therein.</p> <p>3. Out of seventeen of those treaties and conventions, which are now in force, all but one provide for the delivery of persons charged, with crimes committed within the “jurisdiction” of one party, who shall seek an asylum within the “territories” of the other.</p> <p>4. Consideration of the treaties between the United States and foreign countries, respecting the jurisdiction of the United States over crimes committed in those foreign countries, and of the laws of the United States passed in pursuance of the provisions of those treaties, and to carry them into effect, and of the practical execution of those laws.</p> <p>5. Consideration of the laws of the United States respecting the jurisdiction of the United States over crimes not committed within the physical territory of the United States, other than laws passed in pursuance of treaties, as showing an assumption by the United States of jurisdiction over offences committed outside not only of the physical territorial limits of the United States, but outside of the quasi territorial limits of the United States, such as an American vessel on the high seas, and outside of territorial limits granted by treaty.</p> <p>NOTE. After this decision was made, the examination in the matter, before the commissioner. was proceeded with, and resulted in a commitment of the prisoner, to await the issuing of a warrant for his surrender. The secretary of state submitted the question involved to the consideration of the attorney-general, who gave the following opinion: “Department of Justice, Washington. July 21st. 1S73. Hon. J. C. B. Davis, Acting Secretary of State: Sir, 1 have the honor to acknowledge the receipt of your communication of the 7th instant, in which you submit for my official opinion the following question: ‘Carl Vogt, a Prussian citizen, charged with the commission of the crimes, murder, arson and robbery, committed in Brussels, in the kingdom of Belgium, is found a fugitive in the United States. Can the German government, under the provisions of the treaty for the extradition of criminals, concluded between the United States and Prussia and other states. June 16th, 1S52. rightfully demand the surrender by this government of the fugitive Vogt, in order that he may be tried and punished in Prussia for the offence which he is alleged to have committed in Belgium?' Those parts of the preamble and treaty applicable to this question are as follows: Preamble: ‘Whereas, it is found expedient, for the better administration of justice, and the prevention of crime within the territories and jurisdiction of the parties respectively, that persons committing certain heinous crimes, being fugitives from justice, should, under certain circumstances, be reciprocally delivered up, and, also, to enumerate such crimes explicitly; and whereas the laws and constitution of Prussia, and of the other German states, parties to this convention, forbid them to surrender their own citizens to a foreign jurisdiction, the government of the United States, with a view of making the convention strictly reciprocal, shall be held equally free from any obligation to surrender citizens of the United States.’ Article 1: ‘It is agreed, that the United States and Prussia, and the other states of the Germanic confederation included in. or which may hereafter accede to. this convention, shall, upon mutual requisitions by them, or their ministers, officers or authorities, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, or the fabrication or circulation of counterfeit money, whether coin or paper money, or the embezzlement of public moneys, committed within the jurisdiction of either party, shall seek an asylum, or shall be found, within the territories of the other.’ You state, that ‘the surrender of Vogt is claimed by the German government on the ground that he is a Prussian and a subject of the emperor of Germany: that, by the law of Prussia, at the date of the conclusion of the extradition treaty between the United States and Prussia and other Germanic states, 16th of June. 1S52, a Prussian subject, who committed certain crimes (among which those with which Vogt is charged are included) within the territory of another nation, and beyond the territories of Prussia, was. nevertheless, subject to be tried and punished in Prussia. This is, also, now the law of the German empire.’ The following appears to be the only point in controversy — whether or not, according to the true intent and meaning of said treaty, the crimes committed by Vogt in the kingdom of Belgium were committed within the jurisdiction of Germany. To affirm that the jurisdiction of Germany, by virtue of its own laws for the' punishment of crimes, extends over the territory of Belgium, is necessarily to hold that the same jurisdiction extends to France, Great Britain, and the United States, and. indeed, to every nation and country of the world. Manifestly. the words, ‘committed within the jurisdiction.’ imply that the crimes named in the treaty may be committed without the jurisdiction of the parties thereto. But, if the crimes committed in Belgium were committed within the jurisdiction of Germany, then' it follows, as Belgium is as independent of Germany as any other nation, that it is impossible for crimes to be committed outside of the jurisdiction of the German empire. I think, too. that the treaty clearly contemplates that the fugitive claimed must be a person escaping from the jurisdiction of the party making the claim to the jurisdiction of the other party — recognizing two distinct and independent jurisdictions. But, if the claim of Germany is correct in this case, Vogt is as much within her jurisdiction now as he was when the crimes charged upon him were committed, for. the laws under which she claims have as much force within the United States as they have in Belgium. The laws of Germany, which provide for the punishment there of crimes committed elsewhere by her subjects, imply, ex necessitate, as a condition for the exercise of that power, that such guilty subjects must come, or be conveyed, from a foreign place or jurisdiction where the crimes are committed, to some place where they can be taken or received and held by German authority. Germany has an unquestioned right to punish her subjects, if she chooses, for crimes committed in Belgium or the United States; but. it would not be proper, therefore, to say, that Belgium and the United States are within her jurisdiction; but, it would be proper to say, that she has made provisions to punish her subjects for crimes committed without as well as within her jurisdiction. I am quite clear, that the words, ‘committed within the jurisdiction.’ as used in the treaty, do not refer to the personal liabilities of the criminal, but to locality. The locus delicti, the place where the crime is committed, must be within the jurisdiction of the party demanding the fugitive. Stress is put upon the supposed difference in the meaning of the words ‘territory’ and ‘jurisdiction,’ and it is argued, that the latter is more comprehensive than the former term. This is not necessarily, but probably, so; but, it does not follow that Belgium is within the jurisdiction of Germany. All nations have jurisdiction beyond their physical boundaries. Vessels upon the high seas, and ships-of-war everywhere, are within the jurisdiction of the nations to which they belong. Limited jurisdiction by one nation upon the territory of another is sometimes ceded by treaty, as appears from the treaties between the United States, Turkey, China. Siam, and' other powers. Constructive jurisdiction may, possibly, exist in special cases, arising in barbarous countries, or uninhabited places; so that effect can be given to the word ‘jurisdiction,’ as meaning more than territory, without holding that Germany has jurisdiction over crimes committed in Paris, London, or Washington. Local claims or definitions cannot be allowed to govern this case. When nations discuss and treat of their respective jurisdictions, they do not refer to those duties and responsibilities which a government imposes upon its own citizens, but they contemplate those portions of the earth, and places upon its surface, where they have, respectively, sovereign power, or in other words, the right of government. To recognize the claim of Germany in this case would establish a precedent which might lead to serious international complications. We have no extradition treaty with Belgium, but we have with Great Britain, like that under consideration. Suppose Vogt had committed the crimes with which he is charged in England instead of Belgium, and the British authorities, contemporaneously with Germany, had demanded his extradition on that account, could the United States deny that the crimes were committed ‘within the jurisdiction’ of Great Britain, and not ‘within the jurisdiction’ of Germany? Could not Great Britain justly complain, if. after the murder of her citizens and the destruction of her property by the fugitive. her claim to him for the purposes of justice should be denied by the United States, and he should be turned over for trial to Germany, where there is no evidence of his guilt, and where his friends and sympathizers, if he has any. may be supposed to be. Law-writers generally define the jurisdiction of a court to be the power to hear and determine a cause, and it is argued, that, as, by the laws of Germany, her courts have power to hear and determine the ease of Vogt, therefore, his crimes were committed within her jurisdiction. One conclusive answer to this view is, that the word ‘ju--risdiction,’ in the treaty, is not used with reference to governmental power over the subjects of judicial procedure, but with reference to the territory and places in which that power may be exercised. Again, the courts of Germany have never had the power to hear and determine the case of Vogt. Jurisdiction over a subject is one thing. That is conferred by law. Jurisdiction over the person is another. That is a fact which has never existed in this ease. Whether the courts of Germany will or not hereafter acquire jurisdiction in Vogt’s case depends upon facts hereafter to arise. Germany and the United States intended that the convention in question should be ‘strictly reciprocal:’ but, if Germany can rightfully demand the delivery up by the United States of her citizens or subjects for crimes committed in Belgium, the convention is not reciprocal; for. the United States cannot demand of Germany the delivery up of their citizens for crimes committed in Belgium. There is not a single crime enumerated in the treaty for the .commission of which outside of this country the United States can claim one of their citizens from Germany; and there is not only no probability that congress will ever pass an act to that end, but its constitutional power to do so is doubted. Reference has been made to the act ot congress of August 18th, 1856, which declares that perjury committed before a secretary of legation or consular officer of the United States in a foreign country, may be prosecuted and punished in this country, as though committed here; and this, it is said, shows that the United States, as well as Germany, claim an extraterritorial jurisdiction. There seems to be no point in this reference. According to international law, the domicil of an ambassador, minister extraordinary, or consul, is a part of the territory he represents, for many purposes; but, independent of this, the question here is not whether a sovereign country may not punish persons coming into its hands for crimes committed in another sovereignty, but the question here is, whether a crime committed upon the admitted territory, and within the exclusive government, of an independent nation, is committed within the jurisdiction of another nation. To facilitate the punishment of crime is desirable. but the United States cannot, with dignity and safety, admit that any foreign power can acquire jurisdiction of any kind within their territory by virtue of its local enactments. Objection is made to this construction of the treaty, on the ground that it will make the United States an asylum for European criminals. But. this objection is not matter of law,-nor is it true as matter of fact; and. if it was, the United States, as an act of comity, may deliver up a fugitive from justice, or the subject may be regulated by an extradition treaty as comprehensive as the parties thereto see proper to make it; or. if it should appear necessary, congress might possibly interpose by legislation. To recognize the claim to jurisdiction accompanying the requisition in this case may open the door to confusion and controversy as to claims of jurisdiction in other respects, made, under their local laws, by foreign governments. The plain and practical rule upon the subject seems to be. that the jurisdiction of a nation is commensurate with, and confined to. its actual or constructive territory, excepting changes made by agreement, and to this effect are the authorities. Three of the judges of the queen’s bench, in Tivnan’s Case. 5 Best & S. 645. .upon application by the United States for Tivnan, charged with the crime of piracy committed upon an American ship on the high seas, and a fugitive from justice in England, made under our extradition treaty of 1842 [8 Stat. 570], with Great Britain, held, that the words ‘within the jurisdiction,'’ in -said treaty, meant, within the exclusive jurisdiction of the United States, and did not apply to cases of piracy on the high seas, as the person charged therewith was justiciable in any country where he was found. Chief Justice Cockburn, in his dissenting opinion, thought that the term ‘jurisdiction’ meant, the area, whether by land or water, over which the law of a country prevails, and said that ‘it is admitted that a ship is part of the territory of the state, or, at all events, that this ship' (referring to the one on which the piracy was committed) ‘was within the jurisdiction of the United States, so as to come within the statute.’ Thomas Allsop. a British subject, was charged as an accessory before the fact, to the murder of a Frenchman in Paris, in 1858. and escaped to the United States, and. as he was punishable therefor by the law's of Great Britain, the question as to whether he could be demanded by Great Britain of the American government, under the extradition treaty of 1842, was submitted to Sir J. D. Harding, queen’s advocate, the attorney- and solicitor-general, Sir Fitzroy Kelly, since chief baron of the exchequer. and Sir Hugh McC. Cairns, since lord chancellor, and they recorded their judgment as follows: ‘We are of opinion th.at Allsop is not a person charged with the crime of murder committed within the jurisdiction of the British crown, within the meaning of the treaty of 1842. and that his extradition cannot properly be demanded of the United States under that treaty.’ Forsyth’s Cases, p. 3G8. This is a decision exactly in point, and of high authority. Phillimore, in his work on International Law, volume 1, page 413, says: ‘There are two circumstances to be observed, which occur in these and in all other eases of extradition: (1) That the country demanding the criminal must be the country in which the crime is committed; (2) that the act done, on account of which his extradition is demanded, must be considered as a crime by both states.’ Wharton. in his work on the Conflict of Laws, section 957. says: ‘The only admissible restriction of the term “jurisdiction” is, to treat it as convertible with “country,” and to hold that no requisition lies for an offence not committed within the country of the requiring state. And this view is not without support in those expressions of the treaties which speak of the persons claimed as “fugitives,” and as “seeking an asylum” in the state on whom the requisition is made, implying, as it were, a change of country.’ David Dudley Field. Esq., in his Outlines of an International Code (page 93), speaking of an article proposed on extradition, says: ‘The article in its present form defines the right of extradition as it is now recognized, and extending only to crimes committed within the jurisdiction of the demanding nation. It may be thought desirable to extend the rule to offences against the law of a nation committed beyond its jurisdiction, which it would have power to punish if the offender comes within its jurisdiction.’ Attorney-General Lee. in construing the 27th article of the treaty of 1794 [8 Stat. 129] with Great Britain, says, that it was ‘confined expressly to persons who are charged with murder or forgery committed within the jurisdiction of either nation, and who seek refuge in the other, meaning their territorial jurisdiction respectively.’ 1 Op. Attys. Gen. 83. Our extradition treaty of 1843 with France provides for the delivery up of persons charged with certain crimes committed within the jurisdiction of the requiring party, and Attorney-General Cushing held that a requisition by the French government upon the United States for a fugitive tinder this treaty must show that the crime was committed by the fugitive while actually in France. 8 Op. Attys. Gen. 215. Courts in this country have held, that, under section 2, art. 4, of the constitution, providing for the reclamation, by one state upon another, for fugitives from justice, the requisition must show that the crime was committed within the territory of the requiring state. Ex parte Smith [Case No. 12.9G8]: Ex parte Heyward. 1 Sandf. 701. I have carefully read the elaborate opinion of Judge Blatchford. upholding the jurisdiction of Germany in this case, transmitted in your letter, but. with diffidence and regret. I am compelled to dissent from his views. They do not appear to me to be sound in principle or sustained by authority. Able writers have contended that there was a reciprocal obligation upon nations to surrender fugitives from justice. though now it seems to be generally agreed that this is altogether a matter of comity. But, it is to be presumed, where there are treaties upon the subject, that fugitives are to be surrendered only in cases and upon the terms specified in such treaties. Conformably to what is above stated, I make a negative answer to your question. I have the honor to be very respectfully, your obedient servant. Geo. H. Williams, Attorney-General.” The department of state, in reply to the application made by the German minister for the extradition of the prisoner, addressed to him the following communication: “Department of State, Washington. 25th July. 1873. Sir: In reply to the application made by yon. on the 2d instant, in behalf of the government of Germany, for the extradition, under the treaty of June 1C, 1852, between the United States of America and Prussia and other states of the Germanic confederation. of Stupp alias Carl Vogt, an alleged criminal, I have the honor to state that the case has received the serious consideration of this government, and has been submitted to the department of justice for the opinion of the legal advisers of the government. 1 have also felt it due to the importance of the question. and a proper act of courtesy to your government. to submit all the papers to Mr. Fish, and to take his instructions regarding the disposition of the case. It appears that the crimes of which Stupp alias Vogt is accused were committed in Brussels, in the kingdom of Belgium, without the territory, and outside of the jurisdiction. of the states parties to the treaty. The preamble of the treaty declares its object to be ‘the better administration of justice, and the prevention of crime within the territories and jurisdiction of the parties respectively.’ It does not propose to regulate the administration of justice, or the prevention of crime, in other territories, or within the jurisdiction of other states, than those parties to the treaty. The first article of the treaty provides for the delivery up to justice, by the parties respectively to the treaty, of persons charged with certain enumerated crimes, ‘committed within the jurisdiction of either party.’ The crimes charged against Stupp alias Vogt are such as are enumerated in the treaty, and. had they been committed within the territories and jurisdiction of either of the states, parties to the treaty, there would be no hesitancy or delay on the part of this government in the delivery of the alleged criminal. They were not. however, committed within the territories or jurisdiction of Germany, but. as I have already noted, within the territory and jurisdiction of Belgium, with which state no treaty of extradition with the United States exists. The opinion of the law department of the government, therefore, is, that the case of Stupp alias Vogt is not within the contemplation and provisions of the treaty. The heinous nature of the crimes charged against Vogt has inclined this government to seek some construction of the treaty which might justify the surrender of the alleged criminal, for the purpose of subjecting him to an impartial trial, and to the punishment. which, if guilty, he so richly merits. But it is forced to the conclusion that the treaty does not contemplate crimes committed elsewhere than within the territorial and exclusive jurisdiction of the parties thereto, and does not provide for the surrender of persons charged with crimes committed outside of such jurisdiction. Anxious as is this .government, at all times, to aid in the administration of justice and the prevention of crime, and desirous as it has ever shown itself to be to comply with the wishes of the government which you so ably represent, it is with great regret that it finds itself constrained by the terms of the treaty in this case, and that it cannot grant the warrant of surrender which is asked. I avail myself of this occasion, &c., J. G. B. Davis, Acting Secretary.” The prisoner not having been delivered up within two calendar months after hife final commitment, an application was, under the fourth section of the act of August 12, 1S48 (9 Stat. 302). made to Judge Blateh-ford, on notice to the secretary of state, to discharge the prisoner out of custody, and he was discharged.</p> <p>■ [Subsequently a treaty of extradition was concluded with Belgium, and Stupp was arrested upon demand of the Belgian authorities. He sued out a writ of habeas corpus, but upon the hearing on the return the writ was discharged, and he was remanded to the marshal. Case No. 13,563.]</p>

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

<p>In bankruptcy.</p>

<p>[This was a suit by Stephen B. Sturges, as-signee of Hubbard Colby, bankrupt, against Hubbard Colby, Denison University, and others.]</p>

<p>Case No. 13,666a.</p> <p>Practice in Admiralty— Costs — Part Owner— Demand for Security.</p> <p>The libelant [Daniel L. Sturges], owning one-eighth of the brig, filed his libel, alleging that the majority owners were about to send her on a voyage to which he had objected, and refused to give him a bond for her safe return. On the libel being filed and the vessel seized, the bond demanded by the libel was given by the majority owners, and the vessel discharged from custody. The libel was filed before any actual demand of the bond was made by the libelant of the other owners [Horace Staples and others], and they claimed that he was not entitled to recover costs against them.</p>

<p>Case No. 13,668.</p> <p>Railroad Companies — Stock— Fraudulent Issue —Charter—Convertible Bonds— Executory Contract.</p> <p>1. The sale of stock in a railroad company by the directors at a less rate than the price fixed in the charter, is a fraud upon the law and the stockholders.</p> <p>[Cited in Posdick v. Sturges, Case No. 4,950; State Ins. Co. of Missouri v. Redmond. 3 Fed. 767; Plinn v. Bagley, 7 Eed. 787; Taylor v. South & N. A. R. Co., 13 Fed 155.]</p> <p>[Cited in Fitzgerald v. Fitzgerald & Mallory Const. Co.. 59 N. W. 870; Jackson v. Traer, 64 Iowa, 477, 20 N. W. 767: Oliphant v. Woodburie Coal & Min. Co., 63 Iowa, 33S, 19 N. w: 214.]</p> <p>2. The issuing by the directors of a bond convertible into stock is the same in effect as the sale of so much stock, and the sale of such a bond at a discount is unlawful and void. Stock thus taken is, in the hands of a party with notice, subject to the right of prior subscribers to have it reduced to the charter value of the shares.</p> <p>[Cited in Foster v. Seymour. 23 Fed. 60.]</p> <p>[Distinguished in Wood v. Whelen. 93 Ill. 163.]</p> <p>3. Stock can be created only by contract— there must be an agreement to take it.</p> <p>4. A power given to the directors by the charter to sell the property of the company or notes and bonds belonging to it, does not apply to the capital stock, nor does the power to determine the time and terms of payment of subscriptions for stock have any reference to its price.</p> <p>[Cited in Kitchen v. St. Louis, K. C. & N. Ry. Co., 69 Mo. 230.]</p> <p>5. The case is different in principle from the sale of stock on execution or under the charter on default of payment, in which ease the gain or loss is that of the delinquent stockholder, the other stockholders not being in any way affected.</p> <p>6. It is not necessary that the charter contain a prohibition against taking subscriptions at less than the charter price.</p> <p>7. Although to an innocent holder the company would be liable for stock thus issued, these facts constitute a good defense to an action upon an executory contract for the purchase of such stock.</p> <p>Consult Otter v. Brevoort Petroleum Co., 50 Barb. 247; also, Cases Nos. 4,956 and 13,569.</p>

In equity. Final hearing on pleadings and proofs. Suit brought under section 58, act of July 8, 1870, by Frank Sturges, Oliver H. Lee, and William S. Potwin, assignees of Frederick M. Huntington, of his interest in the patent granted him September 3, 1872, for “improvement in machines for punching and stamping metals,” No. 131,004, against Isaac Van Ha-gen, the patentee and owner of the patent granted him April 25, 1871. for “improvement in machines for pressing and stamping…

<p>Case No. 13,571.</p> <p>Judgment — Lien—When in Effect — Moktgage —Record—Ohio Statute.</p> <p>1. A judgment has relation to the first day of the term, and from that time constitutes a lien on the lands of the defendant, which lie within the jurisdiction of the court.</p> <p>[Cited in Norfolk State Bank v. Murphy, 40 Neb. 735, 59 N. W. 709.]</p> <p>2. A mortgage, under the act of 1831. takes effect only from the time it is left for record.</p> <p>3. The statute makes the recording of the mortgage a part of its execution.</p> <p>4. The mortgage first recorded, will create a paramount lien to one of prior date, which has not been recorded.</p> <p>5. The peculiar provisions of the statute, would seem to preclude an equitable mortgage, which had not been first recorded.</p> <p>[NOTE. In 1840 the Bank of Cleveland was plaintiff in a bill of equity against Sturgess and others to enjoin the latter from selling on execution the property of Vantine in satisfaction of the judgment obtained against Beebee. Van-tine. and others. The application for an injunction was overruled. Case No. 861.]</p>

This bill in equity was filed by [Lathrop L. Sturgess and others] citizens of the states of New York and Connecticut, owners of the bark Vernon, and certain insurance companies incorporated by laws of New York, and doing business in that state, against [Thomas G. Cary and others] the owners of the cargo of the bark, citizens of the state of Massachusetts, to obtain an adjustment of a general average loss and payment, by the defendants, of their contributory shares.

[This was a bill in equity by Lathrop L. Sturgis and others against Thomas G. Cary and others to obtain contribution in general average. It was held that the complainants had a claim, and reference was had to a master. Case No. 13,572. The cause is now heard on exceptions to the master’s report.]

<p>[This was a libel by Russell Sturgis against the bark Edward to recover for salvage services performed under contract.]</p>

[This was a libel by Russell Sturgis, owner of the steam tug Achilles, against the steamboat Joseph Johnson (John A. Parks, claimant), to recover compensation for alleged, salvage services.]

[This was a libel by Russell Sturgis against the steamboat Joseph Johnson (John A. Parks, claimant), to recover for salvage services. The court heretofore awarded salvage in the sum of $1,000. Case No. 13,576. The cause is now heard on motion of libellant’s proctors for the allowance of a proctor’s fee, to be paid by the claimants.]

[This was a libel by Russell Sturgis and William Boardman against the steamboat Oregon (George Law and Anson P. St. John, claimants), to recover compensation for services and materials furnished to her.]

<p>Case No. 13,677a.</p> <p>Salvage — Character of Services — Towage— Principle of Compensation.</p> <p>[1. The owner of a steam tug was under contract with several marine insurance companies to give her services, on their request, to vessels in need of aid. at $15 per hour, tteld. that the owners of vessels and cargoes so aided could not avail themselv-s of this contract, further than as evidence of what might be regarded as a reasonable reward for the services rendered, when no price is fixed.1</p> <p>[2. Services rendered by tugs which are maintained for the purpose of aiding vessels in distress as a business and for profit are not to be regarded as entitled to the same high moral mérit with those rendered by a vessel which goes out of her course of business upon a call of humanity, and on an emergency, to give relief, primarily from motives of benevolence; and the reward is not to be measured on the principle of salvage, but rather on that of a quartum meruit giving a reasonable consideration for the benefits realized, measured by the circumstances of risk and labor attending the transaction.]</p> <p>[3. Services of a tog in bringing into New York a bark anchored in severe weather on the south shore of Long Island held to be a tow-age service only, but of extra quality, as being performed in cold and tempestuous weather, and therefore entitled to compensation at $25 per hour.]</p>

<p>Case No. 13,677.</p> <p>Maritime Lien — Salvage—Local Lien.</p>

<p>[This was a libel for salvage by A. C. Stur-tevant and others against the bark George Nicholaus.]</p>

Appeal by B. P. Sturtevant from a decision of the commissioner of patents awarding priority of invention to I. I. Greenough on an interference declared upon an improvement in shoe-pegging machines.

<p>Case No. 13,680.</p> <p>Municipal Corporations — Contract por Gracing Streets — Incidents op Power.</p> <p>1. A corporation having power to grade streets, &c., necessarily has power to make contracts respecting the same, in regard to the work to be done, and the compensation to be paid.</p> <p>[Cited in Gause v. Clarksville, Case No. 5,-276.]</p> <p>[Cited in brief in Taber v. Cincinnati, L. & C. Ry. Co., 15 Ind. 467. Cited in Bieknell v. Widner School Tp., 73 Ind. 504; City of Williamsport v. Com., 84 Pa. St 500.]</p> <p>2. Under the power to establish post offices and post roads, congress have adopted the mail regulations of the Union, and punish all depredations on the mail The same principle applies to the exercise of powers by a corporation.</p> <p>3. Where a principal power is given, every incidental power necessary to give effect to the principal one, is included.</p>

<p>Case No. 13,581.</p> <p>BANKRUPTCY — TRUSTEE AND RECEIVER — INCOMPATIBLE Interests.</p> <p>1. At the firsi meeting of creditors in this case no assignee was chosen. The creditors resolved to appoint a trustee. The trustee named had been appointed receiver of the estate of the bankrupt by a state court, and. as such receiver, had taken possession of such estate, and still held it. Such proceedings were one of the grounds on which the adjudication of bankruptcy passed. One of the committee of creditors named, consisting of three persons, was president of a bank, which was a creditor, and claimed to be paid in full, by preference. Held, that the position ot the receiver was such as to be incompatible with his being appointed a trustee in these proceedings.</p> <p>2. The president of the bank. also, ought not to be one of the committee of creditors.</p> <p>3. The resolution appointing the trustee and the committee of creditors would not be confirmed. and as no assignee had been chosen, the court would appoint an assignee.</p> <p>[Cited in brief in Re Cooke, Case No. 3,169.]</p> <p>[Por a subsequent proceeding in this litigation, see Case No 13,582.]</p>

In this case, a witness, who had been president and afterwards receiver of the bank, was under examination, at the instance of John Mack, a creditor. Questions were put to the witness touching advances made to the bank by him during his presidency thereof.

<p>Case No. 13,585.</p> <p>Shipping — Bill of Lading — Fkeight—Carriage by Purser — Bailment.</p> <p>“A.” was the purser of a steamship about to sail from New Orleans to New York. A package marked with his name was delivered to him for which he gave a bill of lading, whereby he agreed to deliver the package to L. in New York, on payment of the value thereof, and in default of payment to return the package to the consignor. The bill of lading indicated that freight had been paid on the package, but no freight was in fact paid or tendered, nor was there any agreement or expectation that freight was to be paid. The package was not placed on the ship’s manifest nor stowed with the other freight. “A.” was not authorized to sign bills of lading. He delivered the package to the proper person in New York, but neglected to collect its value. Held, that the package was delivered to “A.” as the bailee of its owner and was not delivered to the steamship, and that the latter was not liable for its value.</p>

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

<p>Case No. 13,589.</p> <p>Prize — Violation of Blockade.</p> <p>Vessel and cargo condemned for an attempt to violate the blockade.</p>

Assumpsit. This action was brought for the recovery of about $3.000, together with the additional damages of two per cent, per month, authorized by the laws of Massachusetts, in cases where any bank shall refuse or neglect to pay its bank-bills in specie on demand.

In this suit, which was marked for trial at a preceding term, though neither declaration nor plea was filed; a rule to try or non pros, was entered. Meredith now moved to enforce the rule, and read a case from Dallas’s Reports in the supreme court of Pennsylvania, in which the rule was enforced, though no plea was put in.

This was a motion to take off a nonsuit. It appeared that on the 30th October, 1843, Henry Lewis made a general assignment to the defendant [Thomas Hieskill] for the benefit of certain preferred creditors; that in January, 1842, he applied for the benefit of the insolvent laws of Pennsylvania; and that, on his discharge in February, 1842, the defendant was appointed his assignee, as required by those laws.

<p>[This was a libel for wages by Sullivan and others against Nathaniel Ingraham.]</p>

<p>Cáse No. 13,696.</p> <p>Courts — Foi,lowing State Decisions — Lien— Railroad Companies — Preferred Stock — Mortgage — Setting Apart Fund — Usury —' Statute of Limitations.</p> <p>1. Where the supreme court of the state in which the circuit court is held, has decided that the foreclosure of a mortgage, under the law of tlint state, was bona fide, and in conformity with the state law, such judgment must be held as furnishing the rule of decision to the federal court, except perhaps upon the Question, whether the law of the state, providing for such foreclosure, was constitutional.</p> <p>2. The term lien includes every case in which personal or real property is charged with the payment of a debt.</p> <p>3. Equity acknowledges liens which cannot he enforced at law; but an equitable lien, though not necessarily creating a property in a thing, must amount to a charge upon it, so that it may be recognized and enforced in a court of justice.</p> <p>4. Certificates of stock, known as old preferred stock, were issued by a railroad corporation. Persons holding the certificates were promised ten per cent interest by the corporation which issued them, but they .were not secured by any mortgage or collateral. Other mortgages were subsequently put upon the road, and the trustees of the second mortgage took possession of the road, and held it long enough, under the state law. for their title to become absolute, as against the mortgagors in trust for the respective holders of the second-mortgage bonds. They then formed themselves into á new railroad corporation, under the state law, to carry on the business of the road. About two years after the certificates above named were issued, the stockholders of the old corporation authorized the directors to waive, in behalf of the company, their existing right to redeem at pleasure, and make the road irredeemable until eighteen years after, provided the holders of the certificates should empower the trustees to pay four per cent of the stipulated interest to the treasurer of the corporation. to be held and appropriated, as far as might be. to the payment of the interest of such holders of preferred stock as should surrender their old certificates and receive new six per cent ones. Nothing was done by either party to carry out the pronosal of the stockholders to waive their right to redeem the first mortgage, until about a year after it was made, when the directors voted that the new certificates should be issued to holders of preferred stock for the amount surrendered, promising six per cent instead of ten, as in the old certificates. The claim of the complainants was founded upon the issue of the original certificates, coupled with the relinquishment of the four per cent promised to the holders of certificates under the first mortgage, which was remitted subject to the stipulation of the old corporation, that the amount should be held by the treasurer, to be applied to the interest promised the preferred stockholders. Bill in equity to set aside the foreclosure, and to recover the four per cent interest remitted by the holders of the first mortgage certificates in favor of such holders of preferred stock as accepted the stockholders’ proposal. He.Ul. these contracts were not obligatory on the old corporation, because they stipulated a higher rate of interest than then permitted by the law of the state, which was six per cent.</p> <p>5. It made no difference that the contract specified in the old certificates, that the four per cent annual interest remitted in excess of the legal rate should be held by the treasurer, to be applied to the payment of interest to such of the holders of preferred stock as should adopt the proposal of the stockholders, because both agreements rested in executory contract, and contemplated a rate of interest not permitted by law.</p> <p>6. Ten years had elapsed from the date of the indorsement upon the certificates, before the trustees of the second mortgage conveyed the property to the new corporation, and no steps were taken to set apart the same, or any part of the same, to be. applied as stipulated in the proposal of the stockholders. Seventeen years elapsed from the indorsement on the certificates issued under the first mortgage, and nothing was done by the holders of those certificates to require either the. old or new cornorntion to make any such payment, or set apart the four per cent remitted for the purpose cb’inierl in the bill of complaint. Held, the claim against the old corporation was barred by the statute of limitations.</p> <p>[See Badger v. Badger, Case No. 718.]</p> <p>7. All that portion of the claim which arose before the conveyance under which the new corporation claimed to hold, was therefore, invalid. Held, that the complainants could not recover that part of their claim arising six years next before the filing of the bill of complaint, because the conduct of the parties to the stipulation indicated that they regarded it as of no effect, and as nothing was done to show that the new corporation, in accepting their title, assumed any obligation in that particular.</p> <p>8. The contract for the ten per cent was usurious, and the contract to apply the excess in the manner contemplated by the indorsement of the first mortgage certificates, would not constitute a lien which could be enforced at law, or in equity, against a subsequent purchaser of the mortgaged property.</p> <p>9. The unexecuted promise did not constitute any vested interest in the corporate estate, real or personal.</p> <p>10. Slight evidence may be sufficient in equity to show an assignment or setting apart in eo-uity of a fund in a case like the present; but here there was no evidence whatever.</p> <p>11. If the agreement for the setting apart of the four per cent was valid, the remedy for the breach of it was against the old corporation.</p> <p>12. Acquiescence in the course pursued by the old corporation in this respect was laches on the part of the complainants.</p> <p>13. Courts of eouity. in cases of concurrent jurisdiction, consider themselves bound by the statute of limitations which govern courts of law in such cases. In other cases they act upon the analogy of the limitation at law.</p> <p>14. There is also a defence, peculiar to courts of equity, founded on the lapse of time and staleness of the claim, where no statute of limitations governs the case. In such case, courts of equity often act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches in- prosecuting. or long acquiescence, in the assertion of adverse rights.</p> <p>[On appeal to the supreme court, the decree of this court was affirmed. 94 Ü. S. 806.]</p>

<p>This was an application for an injunction against the violation of a patent right.</p> <p>The complainant stated in his bill, that having ascertained by a course of experiments, that the resistance of the water against the bow or head of a vessel, when moving, is greatly diminished by keeping her as close in the wake after another vessel as possible with convenience, and perceiving the result to be favourable to a new and useful application of steam to the conveying of passengers in a separate boat from the engine, he, on the 4th of December, 1816, obtained a patent “for a new and useful' improvement in the steam tow-boat,” the specification of which was as follows: “I claim as my invention, the application of steam engine power, placed in one vessel to the towing or drawing after her another vessel, for the purpose of conveying thereon passengers or merchandise, or either of them, being a new application of a known power. The manner in which this application may be made, varies with the circumstances in some measure, but essentially consists in attaching the packet to the steamboat, with ropes, chains, or spars, so as to communicate the power of the engine from the towing vessels to vessels taken in tow, and kept always at convenient distance. The advantages attending this improvement are, that lighter and less expensive vessels may be used; he steam engine-boat may be of a. smaller size; and the engine may rest on a frame bearing on her whole extent, but constructed separately from the boat; that any kind of steam engine may be used and applied, especially those of high pressure and lighter construction, without exposing the passengers and merchandise to danger; and there will be more comfort, quiet, and safety in the packet-boat; and it is obvious there may be by means of two or more boats, a convenient separation of the passengers, paying different prices. John L. Sullivan.” The bill further stated, that the complainant en-deavoured to introduce his invention into use as soon as possible, by putting it into practice and otherwise deriving a revenue therefrom; and particularly’, that on his proposal a company was formed and incorporated in the state of Georgia, to navigate the river Savannah with steam tow-boats, to whom a prolongation of the time of the patent or exclusive privilege for such navigation, was granted by the state of South Carolina, and that the company purchased complainant’s patent-right, paying him 5.000 dollars; that the success of the company was so great as to induce the formation of other companies in other states; that the state of Massachusetts granted him an extension of his term to encourage the introduction of tow-boats on Connecticut river; and that he continued his experiments on Merrimack and Charles rivers. for the purpose of improving in the art. The bill further stated, that the exclusive privilege of Livingston and Fulton had prevented the complainant from introducing his invention in this state, which he had ever been desirous -of doing, until the late decision of the supreme court, declaring those privileges unconstitutional; such a decision as complainant had spent much time and money in endeavouring to procure, but without success. That as soon as possible after this decision, he tried to introduce his invention into New-York, by offering it for sale, and endeavouring to form companies, and by publications in the newspapers. The bill then charged, that the defendants [Redfield and Seymour] and others had associated for the purpose of building and running the steam tow-boat Commerce and safety barge Lady Clinton, for the express purpose of separating the passengers from the boat carrying the engine, in the mode devised by complainant, and for which he had an exclusive right; and that those boats had in June last, been put in use between New-York and Albany, under tlie command of the defendant Seymour, who had thus usurped complainant’s privilege, intercepting and preventing the emoluments thereof, which late disastrous accidents on board of steam-boats on the common plan, had rendered more sure, valuable, and important. The bill concluded with a prayer that the defendants might be restrained by injunction from using said boats. The motion was argued on the matters contained in the bill only.</p>

This was a suit in equity wherein John L. Sullivan, in his own right and as guardian of his daughter Emily Sullivan, an insane person, is complainant, and the representatives of William Sullivan and Jonathan Amory, who are deceased, together with Thomas Russell Sullivan and Elizabeth Sullivan, children of the complainant, were made defendants.

Demurrer to petition. The petition represents that the plaintiff [Daniel Sullivan] is father of one James Sullivan, who was an employé of the defendant at $2.00 per day, which was received by the plaintiff; that his said son was 17 years of age; that, while in the service of. the defendant, he was, by- its negligence, “caught between the cars of the defendant and was fatally bruised and wounded, from which he died within six hours.” The facts, intended to show that the death…

Bill in equity, the object of which was to ascertain the right of the plaintiffs to interest on a legacy of 20,000 dollars, bequeathed her by the will of Mrs. Sarah B. Dearborn.

<p>[This was a libel in rem by Richard Roberts and others against the ship Sultan and cargo for salvage.]</p>

<p>Case No. 13,604.</p> <p>Homestead — “Head op Familt” — “Citizen”— Texas Statdte — Bankruptcy.</p> <p>1. An unmarried man, a bankrupt, having orphan children bound to him under the apprentice laws of Texas, and keeping house, hiring servants, and conducting a household, claimed a homestead of one hundred acres, as bead of a family, by the laws of Texas. The assignee set apart the same, but afterwards made a motion to have the award set aside as unauthorized. Held, that the bankrupt was not entitled to such homestead as head of a family.</p> <p>2. Amount thereof set aside, and fifty acres ordered to be set apart to him as a citizen, under the Texas laws, not to exceed in value five hundred dollars.</p> <p>A different conclusion has been reached under a similar provision in the courts of Georgia.</p>

Libel for dockage and repairs. It appeared that the Sultana was brought to the dock about the 5th of December, A. D. 1856, and was taken in on the 8th under a contract between the master and the libellant.

<p>Case No. 13,606.</p> <p>Collision— Rules op Navigation — Vessels on Pishing Grounds.</p> <p>1. The ordinary rules of navigation, designed to prevent collisions, are binding on fishing vessels, while engaged on their fishing grounds.</p> <p>2. Damages denied for want of preponderating proof, in a great conflict of evidence.</p> <p>[Cited in The Worthington & Davis, 19 Fed. 839: The Max Morris. 28 Fed. 884; The Alhambra, 33 Fed. 77.]</p>

<p>[In the matter of Charles Sumner, a bankrupt.]</p>

Libel for the possession of two anchors and chains, a set of sails, and running rigging, being part of the outfit and apparel of the schooner Charles Sumner. Answer by the officers and crew of the schooner Norway, that on a voyage from Buffalo to Milwaukee they discovered the Sumner upon Lake Erie, about 25 miles from Pte au Pe-lée, in distress, on her beam ends, and apparently deserted. On boarding her, they found her loaded with staves, but capsized and full of water.

This was a bill in chancery [by William H. Sumner against William L. Marey] praying for an injunction to stay proceedings in a certain action at law pending in this court by the respondent against the East Boston Timber Company, and that action had been instituted at this term in the name of Mar-ey, by a service on the defendant, as a member of said company, and is founded on a judgment recovered against that company in the state of New York in May, 1840, for $GS,000.

<p>Case No. 13,610.</p> <p>Execution — Appraisement — Sheriff’s Deed— Collatekai. Attack — Death of Defendant.</p> <p>1. A vague levy on land may be rendered certain. by the appraisement, in which it is particularly described.</p> <p>2. The sheriff's deed being certain, cannot be avoided, collaterally, by a defect in the levy.</p> <p>3. The deed is the act of the sheriff, and is taken in connection with his return.</p> <p>4. However irregular a proceeding may be. the title of the purchaser cannot be affected by it. unless the proceeding was absolutely void. If only voidable the title must stand.</p> <p>[Cited in Howard v. North. 5 Tex. 290; Syd-nor v Roberts. 13 Tex. 598.]</p> <p>5. If an execution be issued on a dormant judgment it is irregular, and the execution may be set aside, on motion: but a title, under a sale, on such execution is good.</p> <p>(i. Where a levy has been made, the sheriff may go on and sell, though the decease of the defendam occur subsequently to the levy. If. however, the defendant die before the levy, the judgment must be revived.</p> <p>[Cited in U. S. v. Drennen, Case No. 14.-992.]</p> <p>7. Prioi to the act of February. 1S24, the venditioni exponas might issue either to the old or new sheriff, either of whom could sell the property levied on.</p>

<p>Case Wo. 13,611.</p> <p>Health — Quarantine Regclatioxs —Officeiis— UNREASONABLE DETENTION — LIABILITY OF Municipal Cokpokation fob Damages.</p> <p>1. Quarantine officers may act wisely in detaining an entirely innocent ship, if for any reason, by permitting her to come up, there would be a chance of a panic arising; but it cannot be doubted, that the municipality whose servants took this responsibility would be bound to compensation.</p> <p>2. The board of health of the city of Philadelphia are ministerial, not judicial, officers. The discretion vested in them as quarantine officers is a reasonable, not an absolute, one: and that whether the detention of a vessel was proper or not must be gathered from the facts of the case.</p> <p>3.The vessel in question having been detained an unreasonable length of time, damages against the city are awarded.</p>

<p>Case No. 13,612.</p> <p>Shipping — Public Regulations — Pleading—An-swbh.</p> <p>1. A vessel propelled in whole or in part by steam is not liable to a penalty for transporting goods, wares, and merchandise, without inspection of the hull and boilers under the act of congress of August 30, 1852 (10 Stat. 61). The penalty is alone for transporting passengers.</p> <p>2. Answer to a libel of information must be full and explicit to each article. It must deny the charges, or confess and avoid them by proper averments of facts.</p>

<p>Case No. 13,613.</p> <p>Piiize — Overwhelming Nbcessitt— Burden op Proof — False Destination — Contraband Goods.</p> <p>1. Where it is claimed that a vessel was compelled to attempt to enter a blockaded port by an overwhelming necessity, arising from injuries received at sea. and the loss of fuel, water, and provisions, the burden lies upon her to establish-the necessity.</p> <p>2. Ignorance of the master as to his cargo, and as to any of it being contraband of war.</p> <p>3. False destination on the vessel’s papers.</p> <p>4. Vessel and cargo condemned for an attempt to violate the blockade, and to supply to the enemy articles contraband of war.</p> <p>[This decree was affirmed, on appeal, by the circuit court. Case No. 13.015. For a motion to stay a sale of the property, see Id. No. 13,614.]</p>

<p>Case No. 13,614.</p> <p>Practice in Admiralty — Appeal in Prize Cases —Stay of Execution.</p> <p>1. In this case the prize property was condemned in the district court, and a sale of it was ordered. The claimant appealed to this court from the decree of condemnation, and then applied to this court to stay the sale, which was in progress, on the ground that the appeal operated to remove the cause into this court, and thereby deprived the district court of jurisdiction to issue an execution or to make a sale of the property under the decree of condemnation in that court. This court ordered the sale to be stayed, and all proceedings under the decree below to be set aside.</p> <p>2. The 12th section of the act of July 17, 1862 (12 Stat. 608), and the 4th section of the act of March 20. 1862 (12 Stat. 375), considered.</p> <p>3. There is nothing in either of these acts which changes the general rules of practice that no sale can take place under a decree of condemnation in the district court, duly appealed from: that a decree thus appealed from is not a final decree; and that after the appeal, the cause, with the res, is in this court, and subject to its jurisdiction alone.</p> <p>4. The first section of the act of March 3, 1863 (12 Stat. 759), respecting sales of prize property condemned notwithstanding an appeal, relates solely to decrees of condemnation to be thereafter made.</p> <p>[The decree of the district court rendered in Case No. 13,613 was affirmed. Id. 13,615.]</p>

[Appeal from the district court of the United States for the Southern district of New York. [This was a libel in prize against the steamer Sunbeam and cargo. There was a decree for the libelants in the district court (Case No. 13.613), from which this appeal was taken. For a motion to stay the sale of the property, see Id. 13,614.]

This was an action to recover seaman’s wages and damages [by Quaselle Sunday against Joseph Gordon, Jacob D. Fowler, and Charles Shilletoe].

Libel and cross libel for collision. The collision occurred on Lake Huron, some five or six miles from, and a little above the port of Lexington, in the state of Michigan, at about three o’clock in… Held: by the high court of admiralty, that no vessel shall unnecessarily incur the probability of a collision by a pertinacious adherence to the strict rules of navigation.

[This was a libel by the Sun Mutual Insurance Company and others against Mc-Dougal.] This was a motion to discharge the defendant from arrest.

On exceptions to the commissioner’s report. The bark Sunnyside was libelled by John Miner, owner of the tug Goodnow, for collision, and a cross-libel was filed against the Goodnow.

An attachment was issued against the Sunshine upon a libel hied by one Kimball. The marshal returned that the vessel could not be found in his district. Afterwards the owner came into court, tendered the amount of the debt claimed in the libel, but without costs. insisted that the claimant was not bound to include costs in the tender, as there had been no arrest of the vessel.

<p>Case No. 13,624.</p> <p>Shipping — Public Regulations — Inspection op Boiler — Inter-State Commerce — Ferry-Boat —Burden op Proof — Judicial Notice.</p> <p>1. A libel was filed against a ferry-boat engaged in carrying passengers and freight across the East river, from 4storia to New York City, to recover a penalty of $500 for a failure to have her boiler inspected, as required by the 11th section of the steamboat act of February 28th, 871 (16 Stat. 440) • Eeld, that the court would take judicial notice that Astoria was on Long Island, whose inhabitants have commercial relations with other states of the Union, and that it is by means of the ferry-boats that such commerce is carried on.</p> <p>[Cited in Re Long Island North Shore Passenger A Freight Transp. Co.. 5 Fed. 604.]</p> <p>2. Proof that the ferry-boat did carry the ordinary load of passengers and freight, and was held out as ready to transport on such a thoroughfare all passengers and freight that might offer, was sufficient to throw upon the claimants the burden of proving that such passengers and freight were not destined for other states.</p> <p>3. In the absence of such proof, the ferryboat must be held to be within the provisions of the steamboat act.</p> <p>NOTE [from 15 Int. Rev. Rec. 155). U. S. v. The Sunswick. This is a like action for a penalty of $50 for failure to surrender her license, under the act of Feb. 18, 1793 [1 Stat. 305). In this case the only point presented for my consideration has been disposed of, so far as this court is concerned, by my decision in the previous case against the same vessel, and a similar result must follow here. Let a decree be entered for the libelants.</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, against a lighter called the Sunswick, to recover damages for the nondelivery of a quantity of railroad iron, in pursuance of a contract of affreightment, at a point on the Hackensack river, where a new bridge was being constructed. The iron was taken from Wetmore’s dock, in Brooklyn.

<p>Case No. 13,626.</p> <p>Shipping — Title to Vessel — Record.</p> <p>A purchaser of a vessel from the owner of record at the custom-house will be .protected as against a prior unrecorded sale, unless it appears that the last [recorded] sale is colorable and without consideration.</p>

<p>Case No. 13,627.</p> <p>Sheriffs — Allowing Attached Vessel to Escape — Claim fob Supplies — Shipping.</p> <p>A sheriff who has permitted an attached vessel to get into the possession of a third party, who contracted debts for supplies and necessaries furnished said vessel, acquires no lien by having paid said claim for supplies, as against a subsequent purchaser at sheriff’s sale, without notice, or a subsequent bona fide purchaser for value from the legal owner of record.</p>

[In the matter of the application of sundry citizens for the appointment of supervisors for the voting precincts of the city of Cincinnati.]… Held: that it has been the cardinal principle that action, such as this seeks to devolve on your honors, shall be rejected, not merely by the people, but by your honors, and the appeal I purpose to make to you in behalf of my associates is that you will follow the precedents of two solemn decisions of the supreme court of the United…

<p>Case No. 13,629.</p> <p>Pleading in Equity — Exhibits — Answer — Admissions — Specific Performance— Fraudulent Sale.</p> <p>1. Pleadings in equity are viewed without regard to form, and exceptions are never allowed if made under circumstances calculated to effect a surprise on either party.</p> <p>2. Copies of deeds filed with the bill as exhibits become part of it, and if intended to be objected to, should be done before the hearing.</p> <p>3. It is a rule of pleading at law, that every material averment not denied is admitted: and that rule would seem to apply á fortiori in equity, where all formal exceptions are discouraged.</p> <p>[Quoted in Cahoon v. Ring, Case No. 2,292.]</p> <p>4. Allegations in the bill may be considered as established, whenever the statements in the answer can, by fair interpretation, be construed into an admission of or acquiescence in the same.</p> <p>5. Where inadequacy of consideration in a sale, either private or judicial, is so gross as to shock the conscience, it is presumptive evidence of fraud.</p> <p>6. Courts of equity will refuse a specific performance where the consideration is grossly inadequate, or the contract is oppressive and un-conscientious.</p> <p>7. Where the attorney prepared the writ, for the clerk, taxed the costs, prepared the advertisement of the sheriff, directed a large quantity of land to be- levied on, and himself became the purchaser at a grossly inadequate consideration: held, that the sale was fraudulent and void, and the same was set aside.</p> <p>8. Pacts and circumstances detailed and commented on, and a case of fraud developed.</p> <p>From this decree the defendant appealed to the supreme court of the United States [which affirmed the decree of the circuit court. 19 How. (60 U. S.) 303].</p>

<p>Case No. 13,630.</p> <p>Pilots — Salvage — Request for Assistance — Right to Refuse — Contract for Service —Policy in Fixing Compensation.</p> <p>1. When a vessel is in such peril as to be the subject of salvage service, a pilot, by the general law, is not bound to give his aid for mere pilotage.</p> <p>[Cited in Flanders v. Tripp, Case No. 4,854.]</p> <p>2. If, .in such case, the vessel hoist her colors at the fore topmast head, it will be deemed a request for assistance, although it be the' usual signal for a pilot.</p> <p>3. Salvors cannot force themselves upon a vessel in distress, against the will of the master. It is at his option to accept their service or not.</p> <p>[Cited in The Choteau, 9 Fed. 211; The Cherokee, 31 Fed. 169.]</p> <p>4. But, if he has requested their assistance by a signal of distress, or otherwise, and they have incurred danger, expense or labor, in compliance with such request, and their aid has then been refused, it seems, they have a right to some compensation, at least if the vessel ultimately comes to a place of safety.</p> <p>[Cited in Pope v. The Sapphire. Case No. 11,-276; The Williams, Id. 17,710; The Louisa Jane. Id. 8.532; The New Orleans, 23 Fed. 910.]</p> <p>5. Where aid in saving a vessel from a sea-peril is rendered, under a contract, it is a salvage service, unless, by the terms of the contract, the compensation is to be absolute, and not contingent upon success.</p> <p>[Cited in Camanche v. Coast Wrecking Co., 8 Wall. (75 U. S.) 478: The Williams, Case No. 17.710: The Louisa Jane, Id. 8,532; Baker v. Hemenway, Id. 770.]</p> <p>6. In fixing the amount of salvage compen-sa tiou. it is proper to take into view the policy of encouraging -competent persons, on a dangerous coast, to associate together and keep themselves prepared with boats and other appliances, to render prompt assistance to vessels in distress.</p> <p>NOTE. That the salvors have no right to act against the will of the master, see Clark v. The Dodge Healey [Case Ño. 2.849]; The Bee [Id. 1,219]. That pilots are not bound to give their aid, for mere pilotage, to a vessel in such peril as to be the subject of salvage service, see The Elizabeth. 8 Jur. 365; The Persia. 1 Spinks. 166; The Frederick. 1 W. Rob. Adm. 17; The King Oscar, 6 Notes of Cas. 284; The Hedwig, 1 Spinks, 19; The Joseph Harvey, 1 C. Rob. Adm. 306; The Industry, 3 Hagg. Adm. 203; The Star, 14 Law Rep. 487: The Centurion [Case No. 2,554]; The Adventurer, Stu Adm. 101; Hobart v. Drogan. 10 Pet. [35 TJ. S.] 117. In the late ease of The Undaunted (decided by Dr. Lush-ington, in the court of admiralty, June 21st, 1860], 2 Law T. [N. S.] 520, the Undaunted, troop-ship, bound to London, in coming to. in a heavy gale, at the North Foreland, parted with both her anchors and cables. Sail was made on the ship, and rockets fired for assistance. The steamer Resolute came up. and the master of the Undaunted requested the steamer to proceed to the nearest harbor and bring off an anchor .and cable. The steamer went to Ramsgate, and as the best means of executing the order, engaged two luggers, and put on board of them an anchor and cable. During the next three days, the steamer and luggers searched for the Undaunted, without success, she having run to the northward, and got ready her spare anchor. In the afternoon of the third day, the steamer fell in with her, and with the aid of another steamer towed her to Graves-end, where the luggers came up with her. and her master refused to accept the anchor and chain from them.</p> <p>The action was brought by the owners and crew of the steamer and luggers, claiming salvage for all these services. The learned judge gave £400 to the steamer, and £100 to each lugger, and in deciding the case said: “There is a broad distinction between salvors who volunteer to go out, and salvors who are employed by a ship in distress. Salvors who volunteer, go out at their own risk, for the chance of .earning reward, and if they labor unsuccessfully, they are entitled to nothing; the effectual employment of salvage service is that which gives them a title to salvage remuneration. But if men are engaged by a ship in distress, whether generally or particularly, they are to be paid according to their efforts made, even though the labor and service may not prove beneficial to the vessel.”</p>

<p>Case No. 13,631.</p> <p>Seamen — -Wages — When Payable — When Suit</p> <p>may be Brought — 'Ten Days’ Limit — Suits in Rem — In Peksonam.</p> <p>1. A seaman is entitled to his wages as soon as he has completed his contract and is discharged from the vessel.</p> <p>2. The provision in the seaman act of 1790 [1 Stat. 131J, that process shall not issue against the vessel until ten days after the vessel has arrived at her lasv port of discharge, except under certain contingencies, does not suspend the right to a persona, suit, either in the admiralty or at common law, until after the expiration of that time.</p> <p>3. The admirahy has a general discretionary power over costs, and when a seaman has a just cause of complaint it will deny him costs, unless he allows to the master and owners a reasonable time for an amicable settlement of the dispute before commencing his libel.</p> <p>4. Costs in this case allowed on the facta</p>

<p>Case No. 13,632.</p> <p>[Act Cong. Feb. 12, 1793 (1 Stat. 302), providing a procedure for the reclaiming of a fugitive slave escaping into another state, is valid, and the remedy thereunder supersedes the remedy given by state laws.)</p>

<p>Case No. 18,633.</p> <p>Shipping— Bond por Safe Return op Vessel— Accounts between Part Owners —Stipulation.</p> <p>1. C., minority owner of a brig, filed a libel against he: to obtain security for her safe return from a voyage from which he had dissented. The majority owners appeared and agreed to give the security, the vessel was appraised and the security for the interest of C. was given and the vessel was released and sailed on the voyage. The security was a stipulation, entitled and filed in the cause, in the sum of $1,-300. conditioned on the vessel’s safely returning “from the said voyage to the port of New York." Afterwards C. filed a supplemental libel, in which he averred the proceedings above mentioned, and that the vessel never returned to the port of New York but was lost at sea. The claimants answered, averring that the vessel returned from the voyage dissented from, to Boston, and was then sent without objection from C. on another voyage, on which she was lost, which was claimed to have been a satisfaction of the stipulation, and setting up also that at the time when the action commenced there were outstanding bills against the vessel, which the majority owners had since paid, and that they were entitled to have the share of such bills which belonged to C. to pay. deducted from any amount due on the stipulation: Held, that the return of the vessel to Boston did not satisfy the stipulation, which was conditioned on her returning to New York.</p> <p>2. The vessel having been lost, the liability of the stipulators to pay the amount of their stipulation was absolute. But they were not liable for interest during the absence of the vessel.</p> <p>3. The amcun' which might be found due upon an accounting between the majority owners and C. could not be applied to diminish the liability of the stipulators for the full amount of their stipulation.</p>

<p>Case No. 13,634.</p> <p>ADMIRAT.TY — Li EX FOR SUPPLIES.</p> <p>[The agents of the owners of a ship registered in Baltimore, where the owners resided, made a contract, at Philadelphia, for the sale of the ship to H. & S-, not residents of Philadelphia; the title to the ship to be transferred to them on full payment of the price. H. & S. caused extensive improvements to be made to the ship and supplies furnished to her at Philadelphia. They were unable to complete their contract, and assigned it to other persons, to whom the legal title to the ship was transferred by the owners, and by whom she was registered anew 'at Philadelphia. Held, that the ship chandlers and material men and the stevedore who stowed the cargo and stores were entitled to liens against the ship for the goods and services furnished and rendered to the ship, upon the invitation of H. & S., before the transfer to the assignees of their contract.] ■</p> <p>[On appe»i to the circuit eonrt, the above decree was affirmed. Case No. 17,310.]</p>

Action of assumpsit by the president and directors of this company upon a note of hand, dated the 3d of September, 1817, made by T. Burr, payable to… Held: discharged the defendants, the indorsers. 1 Madd. 235 : 3 Bos. & P. 363: Chit. Bills, 374 ; 2 Bos. & P. 61; 8 Serg. & R. 457, 4 Johns. Ch. 130. (3) That this court has no jurisdiction, it is not sufficient that the president and directors are citizens of Maryland, all the members of the corporate body must be so.

[In .review of the action of the district court of the United States for the district of Indiana.] In bankruptcy. This was a petition for review, filed by William Sutherland.

In bankruptcy. Motion for a rule on the bankrupt [Israel Sutherland], a member of the Chicago Board of Trade, that he assign and transfer to the assignee his certificate of membership in said board. The bankrupt opposes the rule on the ground that the certificate is not an asset which passes to the as-signee.

On November 30. 1867, certain creditors of Robert Sutherland filed a petition in bankruptcy against him, charging him with the commission of divers acts of bankruptcy, alleged to have been committed on and after November 19, 1867, and praying that said Sutherland be declared a bankrupt. On the filing of the petition an order was entered, requiring the respondent to show cause on the first Monday in January, proximo, why the prayer of the petition should not be allowed.

<p>[In the matter of Robert A. Sutherland, a bankrupt. Por prior proceedings in this litigation, see Case No. 13.638.]</p>

<p>[In the matter of Robert A. Sutherland, a bankrupt. Por prior proceedings in this litigation, see Oases Nos. 13,638 and 13,639.]</p>

This ease came up on a libel by Mr. Sawyer, to recover repairs and supplies, and involved a very important question of law as to the right of lien under the late decisions of the supreme court of the United States, whether ship-chandlers and others could recover for supplies furnished to a foreign vessel in any of our ports, when it was made to appear that the master or agent of the foreign owner had ample funds in the country to pay for such repairs and supplies.

In equity. The following is the substance of an opinion prepared through the aid of an, amanuensis, and submitted to the judge. It has his Approval as being substantially correct.

[Appeal from the district court of the United States for the Eastern district of Pennsylvania.] Sutton had made repairs to the Albatross, a vessel, owned at Philadelphia by a corporation governed by directors elected from time to time. And under the statute law of Pennsylvania he had a lien on the vessel for his work.

[Appeal from the district court of the United States for the Southern district of New York. [This was á libel by Effingham H. Sutton against Frederick Hennell and others to recover a balance of freight. From a decree of the district court dismissing the bill (case unreported), libelant appealed.]

<p>Case No. 13,647.</p> <p>Bill or Lading — Pauol Evidence — Mistake.</p> <p>That part of a bill of lading which acknowledges that goods have been shipped, may be shown by parol evidence to have been made by mistake. It is like any other receipt.</p> <p>[Oited in Robinson v. Memphis & C. R. Co., 9 Fed. 139.]</p> <p>[Cited in Sears v. Wingate, 3 Allen, 108.]</p> <p>NOTE. As between the shipper and ship-owner, “the bill of lading has, in legal effect, a double aspect. It is a contract for the transportation and safe delivery of the property shipped: and it also embodies, as a matter collateral to that contract, a receipt for the goods so shipped. In so far as the bill operates as a contract, it is undoubtedly, the exclusive evidence of the obligation of the parties; but in respect to those clauses which operate merely as a receipt for the goods, it has no higher obligation than an ordinary receipt, and is open to explanation and rectification by parol proof.” Goodrich v. Norris [Case No. 6.545]; Wolfe v. Myers. 3 Sandf. 7; Shepherd v. Naylor, 5 Gray, 591; The Tuskar [Case No. 14,274]; O’Brien v. Gilchrist, 34 Me. 554.</p>

Debt on bond conditioned to prove plaintiff a bankrupt. Plea, conditions performed. Replication. Breach, that defendant [Joseph Mandeville] did not prove plaintiff to be a bankrupt. Rejoinder, that he did prove him to be a bankrupt. Surrejoinder, that he did not; and tenders issue Rebutter, joins the issue. contended that he had a right to open the cause, because he held the affirmative, to wit: that he did prove plaintiff a bankrupt.

<p>Case No. 13,652.</p> <p>Pleading at Law — Variance with Proof— Records.</p> <p>Any variance between the judgment described in the declaration from that of the record will exclude the record from being received as evidence.</p>

<p>Case No. 13,653.</p> <p>Creditors’ Bilí.. — Proceedings—Pleading—Pro Confesso— Execution — Return — Vendor and Purchaser — Surrender of Deed.</p> <p>1. A creditor’s bill is sustainable in the courts of the United States under the mode of proceedings. as authorized in chancery by state statutes.</p> <p>2. And in this form, property fraudulently conveyed, or choses in action, may be subjected to the payment of judgments.</p> <p>3. The surrender and cancellation of a deed, does not reinvest the title ift the grantor.</p> <p>[Cited in brief in Fitzgerald v. Wynne, 1 App. D. C. 115.1</p> <p>4. The return of the executions on the judgment nulla bona, is sufficient, without stating that search was made for property by the officer.</p> <p>5. The executions were returned before the return day, but the bill was not filed until aft-erwards.</p> <p>0. On a bill in chancery, the errors of a court of law can not be corrected.</p> <p>7. A court of law gives relief on terms which a court of equity can not impose.</p> <p>8. The demurrer being overruled, and the other defendants failing to answer, the bill as to them may be taken as confessed.</p>

Demurrer to a declaration. The action was case for the infringement of letters patent [No. 1,090]. The plaintiff [David L. Suy-dam] counted on two patents.

<p>This was an application, on behalf of surviving plaintiffs in three suits, for leave to revive and prosecute two of them in the names of Francis P. Sage, Ferdinand Suy-dam, Jr., and Charles Suydam, or in the names of Charles Suydam, and of Samuel S. Whitney, assignee of Francis P. Sage and Ferdinand Suydam, Jr., and the third in the names of Francis P. Sage, Henry L. Suy-dam, Ferdinand Suydam, Jr., and Charles Suydam, as surviving partners of the firm of Suydam, Sage & Co., or in the names of Charles Suydam, and of Samuel S. Whitney, assignee of Francis P. Sage and Ferdinand Suydam, Jr., and of Henry S. Wyckoff and Charles Suydam, executors of the last will and testament of Ferdinand Suydam, deceased. The facts were these: The defendants [William P. Ewing and George W. Ewing] became indebted to the firm of Suy-dam, Sage & Co. in the sum sued for in the last named cause, that firm being at the time composed of Ferdinand Suydam, Francis P. Sage, Henry L. Suydam, Ferdinand Suydam, Jr. and Charles Suydam. The other two actions were brought to recover balances due on debts contracted with the firm of Suy-dam. Sage & Co. when composed of Francis P. Sage, Ferdinand Suydam, Jr. and Charles Suydam. Prior to August 6th, 1850, Henry E. Suydam, Francis P. Sage and Ferdinand Suydam, Jr., assigned to Ferdinand Suydam all their interest in the said several debts. In November, 1850, the said suits were instituted in the supreme court of the state of New York, in the names of the real parties in interest, and attachments were issued therein and served on persons in the state of New York who had in their possession effects and credits of the defendants, in such manner as to bind those effects and credits. Each suit demanded over $500. exclusive of costs. The plaintiffs were citizens of New York, and the defendants were citizens of another state. In March, 1851, the suits were all of them duly removed by the defendants into this court, the appearance of the defendants in this court was perfected, and the suits were pending in this court. After the removal of the causes into this court, Ferdinand Suydam died, and Henry S. Wyckoff and Charles Suydam were duly appointed his executors. The other members of the respective firms with which the debts sued for in the several actions were contracted, were still surviving. The supreme court of New York appointed Samuel S. Whitney, assignee of Francis P. Sage and Ferdinand Suydam, Jr., in place of Ferdinand Suydam, deceased.</p>

<p>Case No. 13,656.</p> <p>Pleading in Equity — Supplemental Answer-New Matter — Judicial Discretion — Parties.</p> <p>1. Leave to file a supplemental answer to a bill of foreclosure, based upon a fact which was known to the party at the time of the original answer, and which was not omitted through mistake, refused.</p> <p>[Cited in Cross v. Morgan, 6 Fed. 244; Rice v. Ege, 42 Fed. 660.]</p> <p>2. A supplemental answer must embrace new •matter discovered after the putting in of the answer on file.</p> <p>3. It is an application to the- discretion of the court, and will of course be denied, if it is apparent from the record, that it was known to the party before his first answer.</p> <p>4. The rule as to parties to proceedings in equity is not inflexible, and will not be enforced so as to work injustice.</p>

<p>Case No. 13,657.</p> <p>Principal and Surett — Release oe Surett — Time Given — Stat of Execution — Consent of Surett — Witness — Interest — Attornet ann Client.</p> <p>1. To release a surety the holder of a note must, for a valuable consideration, give time to the principal.</p> <p>2. If the principal confess judgment at the first term, with stay of execution until the second. and it appears that, in the ordinary course of the business of the court, a judgment could not have been obtained before the second term, no time is given which affects the liability of the surety.</p> <p>[Cited in Preston v. Hood, 64 Cal. 409, 1 Pac. 489 ]</p> <p>3. Time given to the principal, at the instance of the surety, or with his consent, affords no ground for his release. Nor is an indorser discharged where time is given by. an unauthorized agent of the plaintiff.</p> <p>[Cited in Treat v. Smith, 54 Me. 114.]</p> <p>4. A witness must have a direct interest to render him incompetent.</p> <p>5. An attorney who may be chargeable with negligence, is liable, only, to the extent of the injury his client has received.</p> <p>[Cited in Spangler v. Sellers, 5 Fed. 894.]</p> <p>[Cited in Bongher v. Scobey, 23 Ind. 587.]</p>

<p>[This was an action by Suydam, Sage & Co. against Watts.]</p>

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

This was a libel for damages, for not delivering goods according to the provisions and terms of a bill of lading.

<p>Case No. 13,661.</p> <p>Seamen — Forfeiture of Wages — Desertion—Judicial Discretion.</p> <p>By the general maritime law, desertion by a seaman is not necessarily a forfeiture of all antecedent wages, and all goods on board, but the court has the power to mitigate the forfeiture according to circumstances.</p> <p>[Cited in The Quintero, Case No. 11,517; The Balize, Id. 809.]</p> <p>NOTE. See The Martha [Case No. 9.144], that desertion, by the maritime law. is "to be punished by a simple mulct or abstraction of wages, at the discretion of the court.” See, also. Coffin v. Shaw [Id. 2.952], That the statute does not supersede the general doctrine of the maritime law, or repeal it, see Cloutman v. Tunison [Id. 2,907]: Coffin v. Jenkins [Id. 2.948]: Burton v. Salter rid. 2.218]: The Ro-vena [Id. 12.090]: The Cadmus [Id. 2.282]; The Union [Id. 14,348]; The Osceola [Id. 10,602],</p>

[This was a bill in equity by the Swain Turbine & Manufacturing Company against James E. Ladd, for the infringement of reissued letters patent No. 5,154, granted to A. M. Swain November 19, 1872, the original letters patent. No. 28,314, having been granted May 15, I860.]

<p>Case No. 13,663.</p> <p>Collision — Too and Tow — Injury Caused by Tow — -Agreement for Service — Liability of Tow for Tug’s Negligence.</p> <p>1. The schooner O., going down the St. Clair river, had anchored about two miles above the flats, just below a bend in the river. While so lying, she was struck by the schooner S., which with two other schooners was being towed down the river by the tug M. It did not appear in evidence what was the agreement under which the S. was being towed. The M. having taken hold of the vessels assumed the control of them and proceeded down the river, each vessel being manned by her own crew. The tug and the first schooner passed safely by the 0., but the S. ran into her. When the collision was imminent, the master of the tug gave directions to the crews of the vessels in tow, and there was no fault in the seamanship of the crew of the S.. The owner of the O. filed a libel against the S. alone to recover the damages. Held, that, in the absence of any proof as to the agreement for the service, or as to the usage on the river, it could not be said that the tug was under the control of the vessels constituting her tow.</p> <p>2. Under the circumstances, it was negligence for the tug to attempt to pass the bend with more than one vessel in tow, and this could have been known in season to have avoided the collision.</p> <p>3. The tug and not the S. was the principal in the transaction, and the S. was not liable.</p>

<p>Case No. 13,664.</p> <p>Seamen — Wages — Desertion — Testimony op Joint Libellants — Tacking Claims — Costs.</p> <p>1. By the weli-settled principles of maritime law, where seamen employed for a voyage, or hy the month, voluntarily leave the vessel before the termination of the voyage, or the expiration of the time for which they hired, without good cause, or the consent of the master, they will thereby forfeit the wages previously earned.</p> <p>[Cited in The John Martin, Case No. 7.357.]</p> <p>2. A party will nor be allowed, by tacking a small undisputed claim, upon which he has never made a demand, to a contested claim for wages denied him. to recover costs on the demand denied him.</p> <p>[Distinguished in Walsh v. The Louisiana. 4 Fed. 752.]</p> <p>3. The principles touching the duties of seamen under a contract of hiring on a sea voyage are binding upon those engaged in the navigation of inland tide waters. A suit for wages cannot he maintained until the contract of service is performed or released.</p> <p>4. The testimony of a ship’s crew, being joint libellants, each swearing for the other, will he received with great caution. The court will be more inclined to credit the master of the vessel, when the evidence between them is contradictory and he has no interest in the action.</p> <p>5. Full costs will be decreed the claimant, although the demand of the libellants is less than 850 to each.</p>

The libellant [Alexander McLean] had been master of the steamboat Swallow a period of several years. She was a passenger vessel, owned by the respondents [Anthony N. Hoffman and Smith Cutter], making regular trips between New-York and Albany. This action was brought to recover wages alleged to be due him in that capacity, and also for moneys paid by him during the term to other persons on board, and in the service of the vessel.

<p>This was a case of seizure under the revenue laws.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in rein, filed in the district court, against the steamboat Swan, to recover damages for the loss of the schooner H. H. Day and her cargo. After a decree by the district court, dismissing the libel [case unreported], the libellants appealed to this court.

<p>Case No. 13,668.</p> <p>Principal and Surett — Judgment against Surety — Collusion—Debt Previously Satisfied-Injunction.</p> <p>W. obtained a loan from the Bank of the United States, with S. as his endorser. The note was subsequently endorsed by H.. for whose indemnity for any loss which might accrue to him in consequence thereof. W., the drawer, executed a deed of trust. W. after-wards executed other deeds of trust on the same land for the security of other creditors, and, among others, of V. The deed for the benefit of H.. was not recorded, but full notice of its execution was given to V. Before the deed to V. was made, he made a calculation of the amount of the prior liens, and said that the property was sufficient to pay them, and secure him. The land was sold, subject to tbe prior liens, for the payment of- V.’s debt. V bid the amount of his debt, and the property was struck out to him. V. afterwards died, and his executors -proposed to the bank to pay the note on which S. was endorser, on condition that the bank would institute suit against S. for their benefit, to which terms the bank acceded, and obtained a judgment against S. S. filed his bill, stating these circumstances of which he had no knowledge until the judgment was obtained, as he averred, and prayed an injunction, which was granted. The injunction was made perpetual.</p> <p>NOTE. From the decree perpetuating the injunction in this cause, the defendants, executors of Samuel W. Venable, appealed to the supreme court of the United States. At the January term of the supreme court, 1830, on motion of Mr. Wirt, of counsel for the appellee, Swan, the cause was docketed and the appeal dismissed, “the appellants having failed to lodge a transcript of the record in the said cause with the clerk of this court, agreeably to the rules of” the supreme court. 3 Pet. [28 U. S.] 68.</p>

<p>Case No. 13,669.</p> <p>Pcdlic Lands — Certificate op Commissioners— Settlement on Lands.</p> <p>The certificate of the commissioners of Virginia. appointed under the law of that state, to adjust the claims for settlement and pre-emption rights to lands, which were afterwards found to be within the limits of Pennsylvania; being ex parte, is not evidence of a settlement on the lands in discute. The holder of the certificate must prove, by other testimony, his settlement to bt prior to that, under which the defendant claims.</p>

In equity. Bill of review. The Alabama &Chattanooga Railroad Company, by authority of a decree of this court, made on January 23, 1874, was, on December 4. 1870, by the masters appointed for that purpose, sold tc Johu T. Wilder and D. C. McMillen, who, on March 30, 1877, transferred their bid and purchase to the complainant, John Swan, and on June 30, 1877. a decree of this court was made confirming said sale, and substituting the complainant as purchaser in the stead of…

At law. The plaintiff [Francis Swann] brought suit in Alexandria county against the defendant [the Alexandria Canal Company] in the sum of $15,000, for damages sustained by her in taking away the soil from the close of said plaintiff. The pleas of the defendants were: (1) Not guilty. (2) The statute of limitations; viz., not guilty within five years. (3) Confession and avoidance; special plea under the charter.

[Appeal from the district court of the United States for the Northern district of Florida.] In equity. The bill was filed by Samuel A. Swann and others, claiming to be creditors of a partnership which, it was alleged, carried on the business of manufacturing lumber, and which, it was alleged, was composed of F. S. Chester, the bankrupt, E. N. Chester, Franklin E. Town, and Horace Stillman.

<p>Case No. 13,676a.</p> <p>Appeal —Liabilitt o.v Bond — Construction op Bond.</p> <p>1. Where a bond is conditioned to prosecute a certiorari, and if the judgment of the justice is affirmed or more recovered, on a trial de no-vo the obligors will pay such judgment; the bond is discharged if the judgment of the justice is set aside for irregularity, although there may be no trial on the merits de novo.</p> <p>2. The law will not create a liability against securities, which they have not brought on themselves by their contract.</p> <p>3. And where less is recovered in the appellate court than before the justice, this is not embraced in the condition of such bond, so as to render the securities liable.</p>

<p>This was an action of assumpsit [by James Swanston and others against Marcus Morton] to recover from the defendant, who was formerly collector of the customs for the port of Boston, certain duties alleged to have been illegally exacted by him. The district attorney denied that the protest was sufficient. The regular duties on the computed cost of the article, as invoiced, amounted to $646.66. Under the eighth section of the tariff act of 1846. the collector had caused an appraisement to be made, and the appraised value exceeded the value declared on the entry more than ten per cent. The collector required payment of the twenty per cent, additional duties provided for by the above-mentioned section. It was admitted that the proceedings on the appraisement were irregular, and the appraisement not made in conformity to law, and that the plaintiffs must recover, if they had made a sufficient protest. Upon the paper which contained the entry, the regular duties were computed, and the result stated to be $646.66; and on the same paper were the following words and figures: “Penalty, $6466.58 a 20, $1293.31.</p> <p>646.66</p> <p>Penalty, 1293.31</p> <p>Referee’s fees, 10.00</p> <p>Permit, 20</p> <p>1950.17 paid.”</p> <p>In the accompanying paper, by the side of these words and figures was the protest, as follows; “We hereby, protest against paying the additional penalty of twenty per cent., believing the entry and invoice presented by ns to be the actual cost of the barilla.” The only objection made to the protest was, that it protested against the payment of a penalty, whereas the amount paid was not a penalty, but an additional duty.</p>

Bill in equity to remove a cloud upon the plaintiff’s title to 80 acres of land, and praying for a writ of assistance. The plaintiff has the regular or patent title. He so avers and proves. The defendant is alleged to hold under a recorded tax deed executed in 1869 for the taxes of 1864, pursuant to a sale made by the county treasurer, October 2,1865. This the defendant admits, and he claims no other right or title except under this tax deed.

<p>Case No. 13,679.</p> <p>States — Party is Interest — State’s Agent — Railroad Companies — Stock—Certificates of Debt — Interest.</p> <p>1. Where a state of the Union is a party in interest but not a oarty to the record, the jurisdiction of the United States circuit court attaches where that court has jurisdiction of the state’s agent who has charge of the property, as a trustee, and where the property which is the subject of the suit is stock or shares in a railroad company, held by it in pledge for the security of a debt' due to the complainant, for which a lien has been given by the state “in addition” to the pledge.</p> <p>[Cited in Lee v. Kaufman, Case No. 8,191.]</p> <p>[Cited in King v. La Grange, 61 Cal. 228.]</p> <p>2. Where stock in a corporation has been pledged for the “redemption of certificates of debt.” and the certificates bound the debtor for the payment of “the sum therein mentioned and the interest thereon,” the stock is bound for the payment of the interest itself, and a foreclosure may be decreed on default in payment of any instalment of interest.</p> <p>[Distinguished in Toler v. East Tennessee, Y. & G. Ry. Co., 67 Fed. 182.]</p> <p>[NOTE. Subsequently a decree was made in this court as follows: “This cause coming on for further order, the court doth declare: (1) That, by the terms of the charter of the North Carolina Railroad Company, and the amendments thereto, the shares of stock in said company belonging to the state of North Carolina, meaning thereby the shares and all dividends thereon, are pledged as security for the payment of the certificates of debt in such charter and amendments provided for, and for every part of such certificates, meaning thereby the interest accruing upon the principal thereof, as well as the principal. (2) That the plaintiff and those he represents, as owner of such certificates of debt or bonds or of coupons detached therefrom, now hold large amounts of past-due coupons of said certificates of debt or bonds, and that they are entitled to have their respective proportions of the stock, or so much thereof as may be necessary, sold in order to pay such past-due interest. Upon motion of counsel for the plaintiffs, it is therefore ordered and decreed that Joseph B. Bacheler, the commissioner heretofore appointed in this suit, take an account of such unpaid interest, and of such further interest as will be due on or before the 1st day of April, one thousand eight hundred and seventy-five, and also of such proportion of the said stock of the state of North Carolina in said North Carolina Railroad Company as may be equitably applicable to the payment of said interest found due to each of said plaintiffs, respectively. and that he make report to the nest term of this court. It is further ordered and -decreed that, unless, on or before the 1st day of April, 1875, it shall be made to appear to this court that the said state of North Carolina has levied a tax sufficient to pay the said arrears of interest, and has provided for its collection, or shall otherwise have paid or secured the payment of said past-due interest, then so much of the said stock of the state in the said North Carolina Railroad Company apportioned to the plaintiff and those he represents as may be nee-essary to pay off and discharge said arrears of interest shall be sold to the highest bidder for cash.” Directions were then given as to the manner in which the sale was to be made, and at the end of all were these words: “And this •cause is held for further directions.”</p> <p>[An appeal was then taken to the 'supreme court, where a motion was made to dismiss the appeal on the ground that the above decree was not final. The appeal was dismissed. 23 Wall. <90 U. S.) 405.3</p>

Claim [by George Swat] for three leagues of land on the Sacramento river [called the Rancho Nueva Flandria], rejected by the board, and appealed by the claimant.

On the 12th of March, 1S64, John Swatzel filed his bill of complaint in the district court of the late territory of Nebraska, for the county of Washington. The object of the bill was the foreclosure of a mortgage upon lands situated in that county, executed by Anselm Arnold, the ancestor of the defendants, to Joseph Parks, the intestate of the plaintiff.

<p>Case No. 13,681.</p> <p>Corporations — Subscription' por Stock — Fraudulent Aoueemen't.</p> <p>This suit was brought by the Swatara Railroad Company of Maryland, to recover of the executors of John McKim, Jr., deceased, the sum of .$500, the amount subscribed for ten shares of stock. On the part of the defendant, it was proved that the plaintiff’s commissioner to receive subscriptions, had agreed with certain other stockholders who had previously subscribed their names on the list, to receive, in payment of their shares, Tide Water Canal stock at its nominal amount, when in fact it was greatly depreciated in the market; this agreement, it was contended, was a fraud upon the other bona fide stockholders, and entitled them to a recission of their subscription.</p>

This is a proceeding by the assignee of the bankrupts to compel Swearinger to surrender possession of certain premises, which the latter claims as a homestead. At the time Swearinger and Lamar were adjudicated bankrupts, in January, 1877, they were partners in the business of ranching, and tenants in common of the premises now in question. For about two years before, the respondent Swearinger had been residing with his family on these premises, having no other home.

Proceedings in bankruptcy were instituted against the Boston, Hartford & Erie Railroad Company in the district court of this district, October 21, 1S70, on the petition of Seth Adams, one of the creditors of the company, and on the 2d of March, 1871, the company was adjudged bankrupt on said petition.

[Appeal from the district court of the United States for the district of Massachusetts.] Admiralty appeal in a cause of subtraction of seamen’s wages. The libellants [Michael Sweeney and others] were seamen belonging to the schooner John G. Cowell, and were employed during the season of I860 on a eodfisliing voyage from Marblehead to the Grand Banks. The master’s name was Thomas Hanrahan, and the respondent [John Cloutman] was the owner of the vessel.

<p>Case No. 13,686.</p> <p>Removal of Causes — Petition—Affidavit—Ap-PEAltAXCK.</p> <p>1. Under the provisions of the judiciary act of 1789 [1 Stat. 73], where application is made to remove a cause from the state court to the United States circuit court on account of the citizenship of the parties, it is not necessary that, the petition filed for that purpose should be verified by affidavit. The filing of the petition for removal is a sufficient appearance to the suit to give the court jurisdiction of the person; and the question as to citizenship of the parties can be raised in the United States court.. If the party fail to file a petition for removal at the time of entering his appearance, he will be precluded from doing so at any subsequent stage of the proceedings.</p> <p>[Cited in Moynahan v. Wilson. Case No. 9,897; Small v. Montgomery. 17 Fed. 865; Romaine v. Union Ins. Co., 28 Fed. 631, 638: Tnllman v. Baltimore & O. R. Co., 45 Fed. 158; Reifsnider v. American Imp. Pub. Co., Id. 434; Ahlhauser v. Butler, 50 Fed. 706; Morris v. Graham, 51 Fed. 53. Cited in brief in American Wooden-Ware Co. v. Stem, 63 Fed. G77. Cited in Wabash Western Ry. v. Brow, 13 C. C. A. 222, 65 Fed. 947; Goldey v. Morning News of New Haven, 15 Sup. Ct. 563.]</p> <p>[Cited in Farmer v. National Life Ass’n of Hartford, 138 N. Y. 271, 33 N. E. 1,075.]</p> <p>■ 2. Under the subsequent acts of 1833 [4 Stat. 632], March 3, 1803 [12 Stat. 755], July 27, 1806 [14 Stat. 306], March 2, 1867 [14 Stat. 558], the petitions for removal must be verified by affidavit. Per Treat, District Judge, arguen-do.</p> <p>[Cited in Allen v. Ryerson, Case No. 235.]</p> <p>Construction of Acts July 27. 1S66. abd March 2, 1867. See Sands v. Smith [Case No. 12,305].</p>

On libel for towage and cross-libel for collision. H. Norton Strong, owner of the tug Sweepstakes, since deceased, libeled the schooners Dobbin and Atmosphere, in separate ¡suits, for towage services in the sum of $109 in the case of the Dobbin, and $S1 in the case of the Atmosphere.

<p>On exceptions to assignee’s final account, filed by the register, Hovey K. Clarke, Esq.</p>

This was a libel in personam, in admiralty, promoted by the owners of the brig Edinburgh. to recover freight for a cargo of lumber, transported from Boston to California. The libel alleged a shipment by the respondents, and a delivery by the master, to the consignee and agent of the respondents. at Sacramento City.

<p>Case No. 13,689.</p> <p>Patents — Infringement—Combination—Use of Part.</p> <p>The patents of the complainant, alleged to be infringed, were for machines for polishing the edges of the heels and soles of boots and shoes, in which machines there was a combination of certain mechanism for holding the sole or heel or both to be polished, with the mechanism of the polishing-tool, so that the surface to be polished and the polishing-tool were brought into proper relations with each other. The defendants’ machine dispensed with the shoe-holding mechanism, and used only the polishing-tool and its mechanism, the operator holding the surface to be polished in proper relations to the tool: Held, no infringement.</p> <p>[Cited in Dodge v. Fearey, 8 Fed. 329.]</p> <p>[For another case involving this patent, see Dodge v. Feary, 8 Fed. 329.]</p>

<p>This was a libel by the owners of a vessel, to recover for the freight of a cargo of lumber shipped from Boston to California. .L. S. Brown and Francis Tukey bought the lumber of the defendants, lumber-merchants of Boston, to ship to California, paying half cash, and giving notes for the balance, with an agreement to assign the bill of lading to them as security. The bill of lading was made out in the name of Brown & Tukey as shippers, and was assigned by them to the defendants. There was some conflict of testimony, as to whether the assignment was written before or after the bill of lading was signed by the master. It was signed by the master in defendants’ counting-room, and they took and kept the one signed for the shippers. The libellants offered other .evidence, including the declarations of defendants, to show that the defendants were the real owners of the property, and had never parted with the possession of it. The defendants endorsed the bill of lading to F. M. Warren & Co., of San Francisco. This latter house had no interest in the cargo, and there was a conflict of testimony as to the character and extent of their agency. Upon the arrival of the cargo out, Warren made a written contract with the master, to keep the cargo on board at a certain rate per month. Warren failed to perform his part of the agreement, as to paying the storage; and therefore the master sold the_ cargo for non-payment of freight and storage, alleging a custom there which authorized him to do so. The cargo fell short some $5,000 of the amount due for freight. The libellants sought to put in parol evidence of the contents of this contract for storage, upon the ground that they had used all the diligence which the law required to obtain the original, but that it had been lost.</p>

The defendant issued a policy dated February 11. 1S70, to William Henry for $2.000. insuring liis life. With the consent of the company, the assured. Wm. Henry, by instrument dated March 10. 1S70. assigned this policy to the plaintiff [Elias Swick], Henry died in dune following. The plaintiff sues to recover from the company the amount of the policy.

The bankrupt having made application for his discharge, specifications in opposition thereto were filed by Goold Hoyt, executor, &e., a creditor who had proved his claim. The facts in relation to the claim were these: On April 10th, 1865 [Septimus E.] Swift leased of Hoyt, executor, &c. certain premises in New York City, for five years from Hay 1, 1865.

Admiralty appeals from a decree of the district court of Massachusetts, dividing the damages caused by a collision between the whaling-ships Ontario and Helen Mar, in the Arctic Ocean. [Case No. 10,543.] [They are cross libels by William O. Brownell and others against Jireh Swift, Jr., and others.]

<p>Case No. 13,694.</p> <p>Maritime Lif.n — Stores — Furnished to Charterer — Charge—Liability of Vessel.</p> <p>This was a libel filed by the libelants [Frederick Swift and others] to recover the sum of $4,010, for supplies and passenger stores alleged by the libelants to have been furnished by them to the ship.</p>

Libel by [W. C. N. Swift and others] the owners of the ship Hercules against me agent and managing owner of the Rainbow, both whale-ships of New Bedford, for the value of a whale killed in the Okhotsk Sea by the boats of the Hercules, and claimed by the master of the Rainbow, and taaen and appropriated by him, because one of his harpoons, with a line attached to it, was found fastened in the animal when he was killed.

<p>Case No. 13,697.</p> <p>Seamen — Duty in Unlading — During Voyage— End of Voyage — Supplementary Laisoh — When Wages Due — Philadelphia Custom.</p> <p>1. Whether mariners are bound, when ihe voyage is ended, to unlade the ship.</p> <p>[Cited in ICnagg v. Goldsmith. Case No. 7.872; Packard v. The Louisa. Id. 10,052.]</p> <p>2. Guindage, or hoisting, supplementary la-bour. and extra allowance therefor.</p> <p>3. Wages of navigation, and those for loading I and unloading, distinct.</p> <p>[Cited in The Martha. Case No. 9,144.]</p> <p>4. Seaman bound to unlade and relade, at any port on the voyage.</p> <p>[Cited in Florez v. The Scotia. 35 Fed. 910; Cuban Steamship Co. v. Fitzoatric.k. 60 Fed. 66.]</p> <p>5. End of the voyage, and discharge of the cargo separate subjects.</p> <p>0. Custom in Philadelphia to hire others than the crew to unlade.</p> <p>[7. Cited in Slacmn v. Smith. Case No. 12.-936, to the point that the absenting of a seaman from the vessel after the voyage was ended, and before the cargo was discharged, is not a forfeiture of wages.]</p> <p>[8. Cited in The Nimrod. Case No. 10.267; Harden v. Gorden. Id. 6.047: Freeman v. Baker, Id. 5.0S4: Holmes v. Hutchinson. Id. 0.039: The Forest, Id. 4.936, — to the point that, by the general maritime law, if a seaman falls sick during the voyage, he is to be cured at the expense of the vessel.]</p> <p>[9. Cited in The Childe Harold, Case No. 2,676, to the point that feeding a crew on unwholesome or spoiled provisions would justify i their leaving the ship, and such neglect of the j owner would subject him, at least, to pay full j wages for the voyage.] j</p> <p>[10. Disapproved in The William Jarvis, Case : No. 17,697. upon the point that wages are not j payable until the expiration of the period allow- I ed for collecting the freight.]</p>

The action [by Jireh Swift, administrator of William Ross, against Stephen Hathaway and John W. Russell] was brought to recover the sum of 83431.87, alleged to be due on balance of account from the defendants to the intestate. On the trial, it appeared that the defendants were commission merchants at New York, and the action was brought to recover the balance due on a sale, made by them, of two thirds of the ship Neptune belonging to the intestate.

This was an action on the case [by Alexander Swift and .Toseph I-Cinsey against Amos Whisen, and Jesse Green, and others] tried before the court and a jury, brought to recover damages for the infringement of letters patent [No. 6.148] for “improvement in machinery for separating flour from bran,” granted to Issachar Frost and James Monroe, February 27, 1849. reissued to them March 13, 1855 [No. 302], assigned to H. A. Burr, J. D. Condit. A. Swift.

<p>Case No. 13,701.</p> <p>Note — Indorsement—Diligence—Mortgage Security.</p> <p>1. At common law, promissory notes could not be assigned so as to vest the legal title in the assignee. The statute of 8 & 4 Anne, which is not in force in Indiana except as to ‘‘notes payable to order or bearer in a bank in this state,” altered the common law rule.</p> <p>2. In this state, the negotiation of promissory notes is governed by Indiana statutes. Under these statutes, notes payable to order or bearer in a bank in this state, are governed by the law merchant. Other notes are not. And as to the latter, as a general rule, the indorsee must employ due diligence by legal proceedings to collect the note from the maker before he can maintain an action against the indorser. But, to this general rule, there are several exceptions.</p> <p>S. A note was indorsed in the state of Indiana to a citizen of the state of Ohio, and was secured by a mortgage, executed by the maker to the in-dorser, on lands in the state of Wisconsin. The maker was wholly destitute of property, subject to execution. Reid, that the indorsee might maintain an action without first suing the maker or foreclosing the mortgage.</p> <p>The demurrer to the special plea is sustained.</p> <p>NOTE. In Illinois any bond, bill, or other instrument in writing, is assignable, by indorsement thereon, “under the hand of such person.” 3 Gross, St. p. 292, § 4.</p> <p>A note cannot be assigned on a separate piece of paper, so as to vest the legal title in the as-signee. Portier v. Darst, 31 Ill. 212; Ryan v. May, 14 Ill. 49.</p> <p>Formerly notes payable to a person or bearer could not be transferred or assigned by delivery only so as to authorize the holder to sue in his own name. It could only be done by writing the payee’s name on the back. Hilborn v. Ar-tus, 3 Scam. 344; Roosa v. Crist, 17 Ill. 450. This is altered by the statute of 1874, so that simple delivery is sufficient. 3 Gross, St. p. 293, § 8.</p> <p>To fix the indorser or assignor in Illinois, the assignee must use due diligence by the prosecution of a suit against the maker, except (1) when institution of such suit would be unavailing; (2) when the maker has absconded — resided without or left the state, when the instrument became due. 3 Gross, St. p. 293, § 7. “Due diligence” is held to require institution of suit at the first term of court after the note becomes due. Lusk v. Cook, Breese, 84; Chalmers v. Moore, 22 Ill. 359. If suit is not instituted when the note falls due, the holder must show that a suit against the maker would have been unavailing at any time while he holds the note. Bledsoe v. Graves, 4 Scam. 382. Diligence requires that execution be issued on the judgment, and not ordered returned within its life, unless holding in the officer’s hands would have availed nothing. Chalmers v. Moore, supra. Execution should be issued promptly. Rives v. Ivumler, 27 Ill. 291. In fine, due diligence is such as a prudent man would use in the conduct of his own affairs. Nixon v. Weyrich, 20 Ill. 600.</p> <p>The following cases besides the above bear upon the question: Saunders v. O’Briant, 2 Scam. 369; Schuttler v. Piatt, 12 Ill. 417; Pierce v. Short, 14 Ill. 144; Bestor v. Walker, 4 Gil-man, 3; Mason v. Burton, 54 Ill. 349; Roberts v. Haskell, 20 Ill. 59; Curtis v. Gorman, 19 Ill. 141; Allison v. Smith, 20 Ill. 104; Robinson v. Olcott, 27 Ill. 184.</p> <p>A remote assignor is liable to a remote as-signee if due diligence, when required, has been used against the maker. Clifford v. Iveating, 3 Scam. 250. Consult, also, Mott v. Wright [Case No. 9,8833.</p>

Voluntary appearance by the parties. The petition alleges that certain judgments were obtained by plaintiffs against Marks Lesem at the March term, eighteen hundred and sixty-eight, of the Miller county circuit court; that executions issued thereon and were levied on the merchandise of said Le-sem; that after the said levy the said Le-sem, on the petition of Claflin, Allen & Co., was declared a bankrupt, and that the United States marshal, under a warrant issued from the…

Assault and battery. The defendant [Mary Courtney] pleads that the assault was a joint assault committed by her and Hannah Dyson, and that the plaintiff [Eve Swope] recovered judgment at this term against Joseph Dyson, and the said Hannah, his wife, for the same assault.

This action was brought by plaintiff to recover possession of a section on reserve No. 10, of these lands. Plaintiff offered in evidence the treaty made with the Indians in 1825 [7 Stat. 244], in which a reservation of the lands in controversy was made to one Joseph Butler, who conveyed the same to the plaintiff.

Ejectment. The plaintiff showed title in himself by regular conveyances from the patentee.

<p>Case No. 13,706.</p> <p>Prize — Seizure—Probable Cause — Costs.</p> <p>Vessel and cargo acquitted, with costs, there having been no probable cause for their seizure.</p>

<p>Case No. 13,707.</p> <p>Witness — Contempt of Coürt — Compulsory Production of Books and Papers of Corporations — Foreign Corporation — Powers of Officers — What Books and Papers to be Deemed “in Custody ” of Officer.</p> <p>1. A foreign railroad corporation, organized under the laws of Illinois and other states, having its principal office in Chicago, had an office in New York, where certain books and papers were kept under the control of the vice president, who was also the secretary and treasurer of the corporation. By the established practice of the corporation, these books and papers when no longer required here for present use were sent to the Chicago office. The secretary being served with a subpoena duces tecum, in an action pending in this court, requiring him to produce some of thdse books and papers which had been so forwarded to the Chicago office four years before the service of the subpoena, failed to produce the same; and it appeared on his examination that the officer at Chicago, the assistant secretary, who had the immediate charge of tlie books and papers, was a co-ordinate officer, not under the control and direction of the witness, and that, by the by-laws of the company defining the powers of its officers and by the practice of the corporation, the witness could not command the delivery to him of the books and papers to be produced in obedience to the subpoena, although they probably would be sent to him at his request as required for use by him in the business of the corporation. The by-laws provided among other things, that the secretary should “safely keep all documents and papers which shall come into his possession” and “truly keep the books and accounts of the company appertaining to his office, so as at all times to show the real condition of the company's affairs,” and should also keep the stock books and surrender certificates of stock. And the laws of Illinois (Bev. St. Ill. p. 283, § 13) required correct books of account of all the business of the corporation to be kept at its principal office, subject to the inspection of its stockholders. Upon motion to punish the witness as for contempt in not producing the books and papers, held, that the same were not in his custody within the meaning of section 868 of the New York Code of Civil Procedure, which provides that “the production upon a trial of a book or paper belonging to or under the control of a corporation may be compelled in the like manner as if itwas in the hands or underthe control of a natural person” and that “for' that purpose a subpoena duces tecum, or an order as the case requires. must be directed to the president or other head of the corporation or the officers thereof, in whose custody the book or paper is.”</p> <p>2. The statute relates to foreign as well as to domestic corporations.</p> <p>3. The statute requires the witness only to produce books and papers in his custody, and does not require him to obtain the custody of books and papers not actually in his custody, but which he is able to get into his custody in order to produce them in court.</p> <p>4. Whether consistently with the law of Illinois these books and papers could be removed from the Chicago office, quere.</p> <p>5. Whether the statute requires a witness in a court of the United States in any case to travel more than one hundred miles from the place of trial for the purpose of bringing into court hooks and papers in his custody beyond that distance or to take the risk of having them sent to him, if beyond that distance, without going for them personally, quere.</p>

In bankruptcy. The petitioner, the Manufacturers’ National Bank of Chicago, asks that the respondent, James W. Sykes, be adjudged a bankrupt. The act of bankruptcy set forth is, that Sykes, being a trader, on the 20th and 27thi of January, 1870, stopped payment of his commercial paper and did not resume payment thereof for the space of fourteen days.

This was an action of ejectment for certain lots in Walker’s dock addition to the city of Chicago, which plaintiff claimed in fee.

<p>Case No. 13,710.</p> <p>Patents — Preliminary Injunction — Use without Interference — Public Acquiescence.</p> <p>Where, on a motion for a provisional injunction to restrain the infringement of letters patent for a floating grain dryer and elevator, the patent was not attacked for want of novelty, and the infringement was cleai, but the patent had never been tried or established, at law or in equity, and no evidence was furnished as to its use, or as to the extent of such use, or as to acquiescence in the patent by the public, and the defendant showed that he had used his apparatus for about three years, and that no claim had been made against it under the patent until about six weeks previously, and the amount invested in the defendant’s apparatus and business was large, and the business seemed to be precarious, and nothing appeared as to the defendant’s responsibility. an injunction was withheld until the plaintiff should establish satisfactorily the point of acquiescence by the public, and show how the defendant’s apparatus had been allowed to be used without interference, and leave was given to the plaintiff to renew’ his motion, on further papers, but the defendant was required to render sworn periodical accounts of the grain which should in future be treated by his apparatus, and to give satisfactory security, by bond, w’ith sureties, to pay what might be recovered in the suit.</p>

<p>LAppeal from the district court of the United States for the Southern district of New York.]</p> <p>This was a libel i" rum, filed in the district court, to recover damages caused by a collision. There was a decree in favor of the libellants in that court Lease unreported], and the claimant appealed to this court.</p>

<p>Case No. 13,713.</p> <p>Collision' — Long Island Sound — Schooners Meeting — Posting Helm.</p> <p>1. Two schooners came in collision in Long Island Sound in a clear night. They were sailing on meeting courses, not varying more than half a point from being exactly opposite courses. Both vessels had the wind free. Neither made any ehauge of course before the collision. Held, that the case wa» one for the application of the eleventh of the rules f >r avoiding collisions. That both vessels were, therefore, bound to have ported theii helms, and, as neither had done so, both Vl&sms were in fault, and the damages must be apportioned.</p> <p>[Cited in The Decatur H. Miller, 10 C. C. A. 284, G2 Fed. 95.]</p> <p>2. Whether the eleventh rule is applicable to the case of two sailing vessels meeting end on or nearly so, one being close hauled and the other sailing free qnere.</p> <p>[Cited in The Manitoba, Case No. 9,029.]</p>

[This was an action of ejectment by Symes’ lessee against Irvine.] The defendant’s counsel moved to put off the trial of this cause (which was marked for the 20th of April) upon an affidavit setting forth, ‘-that A. B.. a material witness, who lived at Carlisle, in Pennsylvania, (at a distance of more than 100 miles from Philadelphia) was absent; and that he had been sick some time ago, but had promised the defendant to attend at the trial.” Lee, Ingersoll & Itawle objected…

<p>fin the matter of the surplus and remnants of the steamboats Syracuse, McDonald. and Oh’o.J</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, against the steamboat Syracuse, by the owner of a canal boat that was being towed by her from Albany to New York, to ”ecover for the damages sustained by the canal boat, by her coming in contact. while so being towed, with a brig which was at anchor near the Battery, at New York. The district court decreed for the libellant [Case No. S.OiiS], and the claimant appealed to this court.</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 owner of the steamboat Rip Van Winkle against the steamboat Syracuse, to recover for the damages caused to the former vessel, by a < ollision which occurred, on the Hudson river, ,between one and two o’clock a. m., on the 16th of May. 1866, opposite the buoy on the west bank of Percy’s Reach, near the city of Hudson,…

This was a libel in admiralty, brought by the owners of the ship Hillman, of New Bed-ford, against the owners of the ship Zone, of Fairhaven, for damages by the alleged wrongful taking of a whale. The facts sufficiently appear in the opinion of the court. The respondents, in their answer, in addition to other grounds of defence, set up an award previous to the filing of the libel.

<p>Case No. 13,721.</p> <p>Judgment — Res Judicata — Identity op Parties —Principad and Agent — Subagent.</p> <p>1. A former judgment is no evidence in an action. except between the same parties or their privies. See 1 Greenl. Ev. §§ 523. 524.</p> <p>[Cited in Greely v. Smith. Case No. 5,749.]</p> <p>[Cited in Parmer v. Stewart, 2 N. H. 102.]</p> <p>2. If an agent to collect and receive payment of bills, transmits them to his own private agent to receive the money, and place the amount, when received, to his private credit, payment to such agent is payment to the original agent; and if there be a failure, it is the loss of the latter, and not of his principal. See Story, Ag. §§ 201, 217a, 232, 233.</p> <p>[Cited in Exchange Nat. Bank of Pittsburgh v. Third Nat. Bank of New York, 112 U. S. 282, 5 Sup. CL 143.]</p> <p>[Cited in Daly v. Butchers’ & Drovers’ Bank, 56 Mo. 94; Gerhardt v. Boatman’s Sav. Inst., 38 Mo. 67; German Nat. Bank of Denver, v. Burns, 12 Colo. 539, 21 Pac. 715. Cited in brief in Goldsmith v. Manheim, 109 Mass. 190. Cited in Power v. First Nat. Bank of Ft. Benton, 6 Mont. 251,12 Pac. 604.]</p> <p>3. A fortiori, this applies, where the money has been drawn for by a bill in favor of a third person, which has been accepted before the failure.</p> <p>Assumpsit, to recover a sum of money due from the defendants, as agents of the plaintiff, who is surviving partner of the firm of Taber and Gardner, under the following circumstances: Taber and Gardner, in 1802, being owners of certain bills drawn upon the French government by General Le Clerc, sent them to France by their agent Mr. Boss, who was then bound on a voyage to Bordeaux, in the brig Polly, belonging to the plaintiff and his partner. The cargo on board was on the joint account of Boss, Taber, and Gardner; and, on the arrival at Bordeaux, it was consigned to the defendants, who were then merchants in that city, for sale. Mr. Boss, finding that he could not sell the bills placed them in the hands of the defendants, originally for the purpose of having them accepted, and ultimately for the purpose of Having the proceeds, when paid by the French government, lodged in the hands of the defendants. In the mean time, the defendants advanced a return cargo for the Polly, upon the joint account of all the concern; and it was agreed, that the proceeds of the bills should, when paid, be carried to the credit of this advance. Perrot, one of the defendants, was a partner in a banking house at Bordeaux, under the firm of Perrot and Bineau, and sometime in September, 1802, the bills were, by direction of the defendants, transmitted by Perrot and Bineau to the banking house of Messrs. D’Hotel, Thomas and Co. at Paris, with instructions to procure acceptance and payment of the same bills, and to carry the amount, when paid, to the credit of Perrot and Bineau. Mr. Boss, soon afterwards, went to Paris, and while there, about the 26th of October, 1802, received a letter from Perrot and Lee, informing him, that the bills had been sent to Messrs. D’Hotel, Thomas and Co. and enclosing an open letter, introducing him to that house, and also containing directions, that the money, when received, was to be placed to the credit of the banking house of Perrot and Bineau. The letter of introduction was duly delivered to Messrs. D’Hotel, Thomas and Co. On the 12th of January, 1S03, Mr. Boss called at the banking house of D’Hotel, Thomas and Co. and was there informed, that the bills had been duly accepted and paid by the French government, on the 7th of the same month; and that the amount had been duly credited to the account of Perrot and Bineau; and the credit was accordingly shown to Mr. Boss, in the ledger of the banking house. Mr. Boss immediately gave notice of these facts to the defendants by letter, and requested the amount to be passed to the credit of the voyage of the Polly, but received no answer. On the 25th of January, 1803, Messrs. D’Hotel, Thomas and Co. stopped payment. In the mean time Perrot and Bineau had drawn bills of exchange, at single usance, upon Messrs. D’Hotel, Thomas and Co. for the whole amount of the money so carried to their credit, in favor of a third person, which bills had been duly accepted, and when seen by Mr. Boss, were in the hands of another banking house at Paris. In consequence of the arrival of the Polly, on a second voyage on joint account, at Bordeaux, consigned to the defendants, Mr. Boss returned to Bordeaux about the 26th of February, 1802, and remained there until the sixth day of April following. A day or two before this time, his vessel being fitted for sea with a return cargo, he called on the defendants for an adjustment of accounts, and then was, for the first time, informed by the defendants, that they would not allow the credit of the bills received by them. Mr. Boss remonstrated with them in vain,- and was, finally, obliged to settle the accounts and admit a balance due, of 45,762 francs; and at his request, and for his security, on the credit side of the account, the following memorandum was added: — “April 6. By amount of General Le Clerc’s bills in .the hands of Messrs. D’Hotel, Thomas and Co. not received from these gentlemen, when received to be placed to the credit of this account.” The defendants afterwards commenced a suit, in Rhode Island, against Boss, Taber and Gardner, for said balance of 45,762 francs, and finally recovered judgment in said suit, which had been fully satisfied. The present action was brought to recover the amount of the bills received by D’Hotel, Thomas and Co. and carried to the credit of Perrot and Bineau, as above stated. At the trial, the defendants’ counsel contended, that the action was res ad judicata, and therefore could not be sustained: and in support of this objection, offered the record of the action of Perrot and Lee v. Boss, Taber and Gardner.</p> <p>NOTE. This is the same case reported in 9 Craneh . (13 U. S.] 39. The cause was originally tried by the district judge some years before Mr. Justice Story came to the bench [case unreported]: and the judgment rendered at that trial was reversed by the supreme court, and the present was a new trial had under the award of a new trial upon the reversal.</p>

Writ of error to a judgment of the district court of Massachusetts upon a bond given to the collector of New Bedford.

<p>Case No. 13,724.</p> <p>Deed — Estoppel—Vendor and Pdrohaser — Defect in Title — Power of Attorn et.</p> <p>1. The consideration acknowledged to have been received on the face of a deed of conveyance, does not estop the grantor from showing, in an action for the purchase money, that the consideration has not been paid.</p> <p>[Cited in Stansbury v. Taggart, Case No. 13,-292.]</p> <p>2. So far as regards the effect of the deed, the consideration named can not be controverted.</p> <p>3. A possession, without claim of title, can afford, from mere lapse of time, no presumption of. right.</p> <p>4. A purchaser who has received a deed, and holds under it, can not set up a defect of title, to avoid the recovery of the purchase money. pj.</p> <p>5. A compromise of an outstanding claim, without the consent or knowledge of the grantor, can give no claim to an offset, in an action for the consideration money.</p> <p>6. The liability of the grantor must depend . upon the validity of the claim purchased in, and not upon the sum paid for it.</p> <p>7. A power of attorney, which authorizes a conveyance to be made in as full and ample a manner as the principal could execute, authorizes a deed to be made by the attorney, with covenants of general warranty.</p> <p>[Cited in Johnson v. Sukeley, Case No. 7,414.]</p> <p>[Cited in Schultz v. Griffin, 121 N. Y. 299, 24 N. E. 480.]</p> <p>8. This is especially the case where the deed has been accepted, with a full knowledge of the power.</p> <p>9. Such instruments are to be construed according to the intent of the parties.</p> <p>[NOTE. A bill in equity , was subsequently filed by the defendant in this action, in which he asks that certain incumbrances paid off by him on the tract of land purchased from Tag-gart be set off against a judgment for the purchase money. The injunction was dissolved and the bill dismissed. Case No. 13,292.]</p>

<p>Case No. 13,723.</p> <p>Mimes and Mining — Lode Claims — Ore “in Place. ”</p> <p>[Where the mass overlying the. ore is mere drift, or a loose deposit, the ore is hot “in place,!’ within the meaning of Rev. St. § 2320, so as to give the owners of a claim the right to follow the dip within the lines of an adjoining claim.]</p>

<p>Case No. 13,725.</p> <p>Bankruptcy — Discharge— Proportion of Debts to Assets — Amounts Paid to Lien Creditor.</p> <p>1. Payments to judgment creditors who have secured their liens by execution levies are not to be deducted from the gross amount realized by the assignee before ascertaining whether there is the requisite per cent, of assets to entitle a voluntary bankrupt to a discharge.</p> <p>2. The term assets includes all property of every kind and nature, chargeable with the debts of the bankrupt, that come into the hands of and under the control of the assignee; and the value thereof is not to be considered a less sum than that actually realized out of said property, and received by the assignee for it.</p> <p>WALLACE. District Judge, granted a discharge on the 18th of September, 1877, but' wrote no opinion.</p>

The plaintiffs in this case [W. E. Tait and others] are the legal representatives of Dr, Samuel Bond, who died August 8th, 1862.

<p>Case No. 13,727.</p> <p>Bankruptcy — Makshal’s Bill op Costs.</p> <p>1. On a bill of costs of U. S. marshal as messenger. Held, that travel by a U. S. marshal as messenger to make return on warrant of bankruptcy is necessary, and mileage of five cents per mile therefor is a proper charge.</p> <p>[Cited in Re Donahoe, Case No. 3,979.]</p> <p>2. A charge of ten cents per folio for preparing notices to creditors is an improper charge.</p> <p>3. An item for attendance ife an improper charge.</p>

^Indebitatus assumpsit for one thousand dollars for sundry quantities of cattle sold •and delivered at defendant’s request.

This was an ejectment to recover a tract of lanfl, lying in York county. The title to the land was admitted to have been in Elizabeth Simpson, -on or before the 25th of September, 1783; on which day, she and her husband, Michael Simpson, executed a conveyance of it in fee, to James Burd; who, on the same day, reeonveyed the same to the said Michael Simpson, and to his wife, and to the survivor of them, and to the heirs of the survivor.

<p>Case No. 13,731.</p> <p>Pleading in Admiralty — Pkoofs—Variance — Charter Party — Storage.</p> <p>[1. The charter party, under seal, upon which the suit was founded, was between the master of the vessel of the first part, and T. & Co. and L. & Co. of the second part. In a suit against the owners of the vessel for nonperformance of the contract the libel and proofs showed the cause of action in T. & Co. and the P. Co., and showed that L. & Co. acted merely as the agents of the P. Co. Eeld that, although this was a variance which would be fatal in an action at law, yet that in admiralty it could not avail to defeat libelant's cause of action.]</p> <p>[2. Where the charter party provided for the freighting of a cargo which from its very nature must have been contemplated should be stored on deck, the vessel is not liable for any loss or damage arising on account of such deck storage.]</p> <p>[3. Where a cargo of spars is stored on deck under the direction and superintendence of the master, but is stored in so faulty and negligent a manner that loss arises, not on account of the position where stored, but on account of the improper manner of storing, the vessel is liable.]</p> <p>[NOTE. Subsequently the lost proofs were found, and the court granted a rehearing, at which the decision rendered above was confirmed. Case No. 13,731a.]</p>

[2. In answer to a libel by freighters for loss and damage to cargo, the defendants alleged that the loss and damage was partly from á necessary jettison on account of perils of the' sea, and partly from a sale by the master in order to supply the necessaries of the vessel.

Assumpsit for the labor of two negro boys, Bill and Hanson. Bowling, the owner of the boys, had by indenture bound them as apprentices to the plaintiff. Bill was to serve until September, 1798, and Hanson until September, 1799. Talbott hired the boys to Hartley, the defendant, who refused to pay him for their labor, alleging that Bowling claimed it. Upon this, Talbott and Bowling submitted the matter to arbitrators.

<p>[This was an action by John H. Talbott, administrator of Hiram E. Talbott, against John W. Wright, upon certain notes made by defendant to Hiram E. Talbott.)</p>

This was an insurance on goods, dated July 9th 1806, on board the schooner Commerce, at and from Havana to New-York; premium, Sy2 per cent; warranted American property, to be proved at Philadelphia. The vessel sailed on the voyage insured, and -on the 1st of July, was captured by a Spanish privateer, and carried into St Augustine. One of the counts is for a loss by capture, and the other by barratry of master. Policy open.

In 1869, the legislature of Michigan passed an act to enable any township, city or village to pledge its aid by loan or donation, to any railroad company, as specified in said act. Laws 1869, p. 89. Under this act, certain bonds were issued in aid of the Kalamazoo & South Haven Bailroad Company, by the township of Pine Grove, in the county of Van Burén, Western district of Michigan.

[In review of the action of the district court of the United States for the Eastern district of Virginia.] Petition for review [in the matter of John F. Taliafero] under the second section of the bankrupt act [of 1867 (14 Stat. 518)].

[In the matter of David B. Tallmadge, a bankrupt.] Objections were interposed to a decree by the stockholders of the North American Trust & Banking Company, and the petitioner objects to such objections being received, on the ground that the stockholders of a creditor bank are not persons in interest.

<p>Case No. 13,740.</p> <p>Bankruptcy — Discharge—Time to File Specifications of Objection.</p> <p>Where creditors were required to show cause on a certain day, why a bankrupt should not be discharged, and in that day creditors appeared, and the proceedings on the order were adjourned till a subsequent day: Held, that the ten days, within which specifications of objections to the discharge were to be filed, dated from the adjourned day.</p> <p>[Cited in Re Seabury, Case No. 12,573.)</p>

<p>Case No. 13,739.</p> <p>Bankruptcy — Fraudulent Debt — Discharge.</p> <p>Where, in. bankruptcy proceedings before the register, one of the creditors offered evidence to show that his debt was fraudulently contracted by the bankrupt, held, that the evidence was immaterial.</p> <p>[Cited in Re Rosenfield, Case No. 12,058; Re Wright, Id. 18,065.]</p> <p>[See Case No. 13,740.]</p>

<p>•Case No. 13,741.</p> <p>Prize — Violation op Blockade.</p> <p>Vessel and cargo condemned for a violation of the blockade.</p>

Libel for freight. The libel averred that, in December. 1864. John Becker, as master of the schooner John Thursby, received on board of the schooner, at Goderich, 112% cords of tan bark, to be carried to Detroit; that it was then very late in the season, and cold weather coming on suddenly, the schooner was frozen in and compeUed to lie up at Goderich for the winter.

[Appeal from the district court of the United States for the district of Massachusetts.] This was an admiralty appeal in a cause of contract, civil and maritime. The libel-lants [John H. Pierson and others] were the consignees of one hundred bales of cotton, shipped at Apalachicola, in the state of Florida, on board the bark Tangier, to be transported to Boston for a specified freight.

.The libellants, ship-chandlers of Boston, furnished money to the master of the brig Tangier, of Bangor, to pay off his crew, who had arrived here at -the end of a voyage from Savannah, by way of the West Indies; and the money, or most of it, was proved to have been applied to the purposes for which it was borrowed.

<p>Case No. 13,745.</p> <p>Bankruptcy — Examination op Bankrupt — Right to Consult Attorney.</p> <p>1. A bankrupt under examination has no right to consult with his attorney before answering, except when the examining magistrate shall see good cause for allowing it.</p> <p>[Cited in Re Dole, Case No. 3,965. Approved in Re Judson, Id. 7,562.]</p> <p>2. The attorney may attend, and object to improper questions.</p>

Case for a false affirmation of the credit of one Samuel Darling, the brother of the defendant [Joshua Darling], whereby the plaintiff [Charles Tappan] was induced to trust him for. $665 75, with the usual averment, that the .plaintiff had wholly lost the same, Samuel Darling being insolvent, &c. At the trial, a letter, addressed by the defendant to the plaintiff on the 6th of October, 1818, with an indorsement on it of Samuel Darling as bearer, was produced, containing this…

<p>Case No. 13,748.</p> <p>Pakties — Assignment Pendente Lite — Supplemental Bill.</p> <p>Where a complainant has assigned his interest in the subject-matter of the litigation pending the suit, his assignee cannot on a supplemental bill be substituted to his rights. He must file an original bill in the nature of a supplemental bill.</p> <p>[Cited in Campbell v. New York, 35 Fed. 14.] [Cited in Fulton v. Greac-en, 44 N. J. Eq. 446, 449, 15 Atl. 828. 830.]</p> <p>As to the character of an original in the nature of a supplemental bill, and when properly brought, consult 2 Barb. Ch. Prac. p. 84, note 1; and Butler v. Cunningham, 1 Barh. 85. .</p>

This was a writ of error from the judgment of the district court of Massachusetts, rendered in an action of debt upon a bond for duties due at the custom house.

[This was an action by J. Nelson Tappan, trustee in bankruptcy of Archibald Barter and Duncan C. Ralston, against Theodore W. Whittemore and Richard B. Whittemore. Por prior proceedings in this litigation, see Cases Nos. 1,119-1,121.]

The libellants [A. C. Bruce and others], sixty in number, were a joint-stock company, called “The Shawmut Mining and Trading Association,” with a capital of $18,000, in sixty shares, of $300 each, for the purpose of mining and trading in California. They had appointed the respondents, Thomas H. Swasey & Co., their agents and treasurers, and had paid to them their subscriptions. The Messrs.

<p>Case No. 13,762.</p> <p>Courts — Jurisdictiox—Equitt—Conveyance— Purchaser with Notice — Fraud.</p> <p>1. A court of chancery in any other state, than that in which land is situated, can make no decree which can affect the title to such land.</p> <p>2. But having jurisdiction of the person of the owner of the land, they may decree a conveyance. and enforce the decree, by attachment or otherwise.</p> <p>3. A conveyance executed under a decree, operates by' virtue of the conveyance, andt not by force of the decree.</p> <p>■ 4. In such a case, the chancery suit does not constitute a part of the title, and need not be presented as such. The proceeding in chancery may be looked at as showing the ground. on which the conveyance was made. A knowledge of facts, which if traced and understood, will lead to a knowledge of title, is sufficient to charge a purchaser.</p> <p>[Cited in Janvrin v. Janvrin, 60 N. H. 172; Galley v. Ward. Id. 332. Cited in brief in Garrard v. Pittsburgh & C. R. Co.. 29 Pa. St. 157; Hill v. Epley, 31 Pa. St. 332; Woods v. Wilson, 37 Pa. St. 380.]</p> <p>5. Fraud may be proved by circumstances.</p>

<p>Case No. 13,753.</p> <p>Seamen’s Wages — Wkeck—Time of Dischakge.</p> <p>A steamer went ashore on February 4, 1876. The master did not abandon hope of getting the vessel off till March 10th. tip to February 16th the crew remained on the shore by the vessel, engaged under the master’s orders in taking the cargo out and stripping the vessel. On the 16th of February the provisions gave out, and the crew were sent to Nassau, N. P., where they were retained by the master’s direction till March 10th. when they were discharged. They were paid wages up till February 4th, and on returning to New York they filed a libel against the owners, claiming to recover wages up to March 10th. The owners defendant, claiming that under section 4526 of the Revised Statutes of the United States, the seamen’s right to wages ceased on the wreck of the vessel on February 4th, and that for their subsequent services they would be' entitled only to salvage compensation, to be paid out of the proceeds of the wreck. Held, that the seamen were bound to continue their services as long as there was any hope of saving the ship; that the master must be held to have the power, as a general rule, to determine whether there is any hope of getting the ship afloat, and until he gives it up, the owners cannot object to paying wages on the ground that there was no chance of saving her; and that the libellants, therefore, were entitled to recover.</p>

<p>Case No. 13,765.</p> <p>Seamen — Wages—Fishing Votage.</p> <p>1. Courts of admiralty may admit parol evidence that illiterate seamen signed a contract not read to them, which differed from their oral agreement; and may, in some cases, re-form a written contract by oral testimony.</p> <p>2. A usage or practice being proved to put on board only a part of the bait for a fishing voyage to be conducted off the coast of Nova Scotia, the owners relying on catching suitable fish to supply the deficiency, was held to be reasonable; and, where the vessel, having failed to catch bait, put into port for a supply, causing a delay of a few days, held, that this would not authorize the seamen to refuse further duty.</p> <p>[Distinguished in Burgess v. Equitable Ins. Go., 126 Mass. 78.]</p> <p>3. Where the seamen refused duty before their fishing voyage was ended, and obliged the master to come home with only part of a fare,— held, they had forfeited their wages.</p>

[Bill in equity [by James G. Tarr and others against Charles E. Folsom] to restrain alleged infringement of reissued letters-patent [Nos. 4,59S and 4,599] fora paint for ships’ bottoms, granted James G. Tarr and A. H. Wonson, Oct. 17, 1S71. The original patent was granted Nov. 3, 1SG3 [No. 40,515].2

<p>Case No. 13,757.</p> <p>Patents — Well- Known Substances — Monopoly —Want of Novelty — Paint fob ■■ Ships’ Bottoms.</p> <p>1. The claim of the reissued letters patent, No. 4.598, division A, granted October 17, 1871, to James G. Tarr and Augustus H. Wonson, for an “improvement in paint for ships’ bottoms,” the original patent having been granted to them November 3, 1863, and reissued August 6, 1867, and again reissued in two divisions, October 17, 1871, namely: "A paint, consisting of oxide of copper, with a suitable vehicle or medium, substantially as described,” read in the light of the specification attached, seeks to secure any mixture capable of being applied as a paint, in which oxide of copper is an ingredient, and, so understood, is invalid.</p> <p>2. The poisonous effect of oxide of copper was known, and the protection of surfaces by applying compounds to them was known.</p> <p>3. A monopoly of the use of a well-known substance, in a particular but well-known form, cannot be secured.</p> <p>4. The subject matter of the patent, even if patentable, was not . new.</p> <p>5. In the reissue, under section 53 of the act of July 8, 1870 (16 Stat. 205). of a chemical patent, it is necessary to its validity, that the subject matter of it should be found described in the original patent.</p> <p>[Cited in Giant-Powder Co. v, California Powder Works, Case No. 5,379.]</p> <p>[For other cases involving this patent, see Wonson v. Gilman, Case No. 17,933; Tarr v. Folsom, Id. 13,750; Wonson v. Peterson, Id. 17,934.)</p>

<p>Case Mo. 13,759.</p> <p>Courts— Federal Jurisdiction' — Navt Yard— Contiguous Waters — Habeas Corpus.</p> <p>1. The courts of the United States have, by section 711 of the Revised Statutes of the United States, jurisdiction exclusive of the state courts of crimes committed in the Gosport Navy Yard in Virginia.</p> <p>2. By navy yard is meant not merely the land on which the government does work connected with ships of the navy, but the waters contiguous necessary to float vessels of the navy while at the navy yard.</p> <p>3. An arrest by the state authorities of a person accused of a crime committed in one of the places mentioned in section 711 is a violation of a law of the United States in contemplation of section 753; that is to say, is a violation of section 711, and a United States court may issue the writ of habeas corpus for a person so arrested by state authorities, and in jail under such arrest.</p>

This was an action on the case, tried before NELSON, Circuit Justice, for the infringement, of letters patent granted to the plaintiffs [Benjamin Tatham, Jr., and George N. Tatham] October 11th,… Held: in their proper relative positions by any of the known methods.”

[This was a bill in equity by George N. Tatham, Benjamin Tatham, Jr., and Henry B. Tatham against Thomas Le Roy, Robert Lowber, and David Smith, for a provisional injunction to restrain the infringement of letters patent No. 1,980, granted to Benjamin Tatham, Jr., and H. B. Tatham, as assignees of John and Charles Hanson (who had procured an English patent), and reissued to all the complainants March 14, 1846, for improvements in the machines for making or manufacturing lead…

Case for the infringement of “a new and useful improvement in the machine for making or manufacturing pipes and tubes from lead and other metallic substances.” The plaintiffs [George N. Tatkam and others] claimed as assignees of John and Charles Hanson, the inventors; and the patent was granted to the assignees on the 29th of March, 1841.

In equity. This was an application for a provisional injunction to restrain the infringement of re-issued letters patent granted to the plaintiffs, March 14, 1846, for fourteen years from August 31. 1837, for “improvements in the machine for making or manufacturing pipes and tubes from lead or-other metallic substances.” The invention was one made by John Hanson and Charles Hanson, of Huddersfield, England, and for which letters patent were granted to them in England dated…

This was a hearing on exceptions to the report of a master as to the amount recoverable by the plaintiffs in a suit in equity [by Benjamin Tatham and others against Robert W. Lowber and others] for the infringement of letters patent for machinery for the manufacture of lead pipe. [For the opinion in the motion for preliminary injunction, see Case No. 13,764.]

On the trial of this cause the plaintiffs [Tatum’s executors] produced one Donnel-son for the purpose of proving their beginning comer. Donnelson objected to being sworn upon the ground that he was interested, having purchased a part of the land in controversy from one of the defendants.

This is an action of replevin brought by [Charles H. Tavenner] the plaintiff against [Alexander Hunter] the defendant, who was marshal of the District, for the possession of a cow and calf, the property of said plaintiff. The writ was directed to the coroner of Washington county, in the District of Columbia, commanding him to replevy said cow and calf.

In June, 1876, a decree was rendered by the circuit court of Accomae county, Virginia, in favor of William H. Walters and Mary E. E. Walters, infants, for $4,500, against their guardian and his sureties, one of whom was Samuel T. Taylor, in a suit in chancery for a settlement of the guardian’s account. Execution was issued upon this decree which proved unavailing, but established a lien upon the estate of Taylor.

is confined in the Ramsey county jail, upon a commitment, after examination, upon a charge of assault to commit rape, before tbe judge of tbe police court of the eity of Saint Paul. He presented a petition for a writ of babeas corpus to Judge Nelson, TJ. S. district judge. Attached to the petition are copies of the complaint, the warrant issued thereon, and the commitment after hearing.

Years ago Dr. William Taylor and his wife had one child, and never had any more. A sister of Mrs. Taylor, on her dying bed, and as a parting request, asked Mrs. Taylor to take her infant and raise it for her. Mrs. Taylor, by consent of her husband, Dr. Taylor, took her sister's child, thus left an orphan (mother and father both being dead), to her home, and treated it in all respects as one of her own.

[This was a bill in equity, filed to restrain the defendants [Ellis S. Archer and others] from infringing letters patent [No. 46,507] for an “improved flexible tubing for illuminating gas,” granted to William B. S. Taylor, February 21, 1865, and assigned to Frederick R. Taylor, July 10, 1806.] 2

<p>The bill in this case alleged the recovery of a judgment in the superior court of Chicago in favor of plaintiffs against H. V. Bemis; that an execution was returned not satisfied, and that the judgment was still due and unpaid; that Bemis was engaged in business in Chicago, as a member of the firm of Downer, Bemis & Co., manufacturers and dealers in ale, his interest in which firm this bill designed to reach. The bill alleged that Washington Smith held the property of Bemis under a mortgage, and that this mortgage was only a pretended mortgage and made to cover up Bemis’s property. Answers were filed by Bemis, Downer, Washington Smith and others, admitting some of the facts alleged in the bill, but denying that Bemis had any interest or property which could be levied upon.</p>

This was a suit in equity [by James S. Taylor against Henry E. Bothin] to compel the defendant to transfer to the complainant letters of registration by which a right to use a certain trade-mark was obtained.

Heard on motion for new trial. On February 4, 1856, the steamer Charles Hartridge, when passing úp the Ocmulgee river, found a lot of cotton, the property of plaintiff [Charles E. Taylor], at Nest-Egg landing, which had been left there for transportation down the river to Savannah. The captain took the cotton aboard, with the purpose of carrying it to Savannah, and proceeded up the river on his trip.

The plaintiffs in the main suit, [Frederick] Taylor et al., are trastees in railway mortgages on the Burlington, Cedar Rapids & Minnesota Railway Company. These mortgages include all existing and future to be acquired property of the company, including rolling stock, and rents, and income, and were executed and recorded before the work was done and the materials furnished by the intervening petitioners.

Bill in equity [by John Taylor and others against Daniel Carpenter] for an injunction and other relief. Held: that a bill for an injunction might be maintained by a citizen of the United States, against one who assumes the name of the complainants’ newspaper, for the purpose of imposing on the public and supplanting complainant in the good-will of his paper. This principle is the same as that which is contended for the plaintiffs.

This was an action on the case, brought by the plaintiffs [John Taylor and others], citizens of Great Britain, against the defendant [Daniel Carpenter], a citizen of Massachusetts, for imitating and using from January, 1842, to January, 1845, in this state, the trade marks of the plaintiffs, on thread of the defendant, and selling great quantities thereof, as and for the plaintiffs’ thread, to their damage in the sum of $20,000.

<p>Case No. 13,786.</p> <p>•Salvage— Claim bt Cuew or Salved Vessel — Abandonment — Return—Amount or Compensation.</p> <p>1. The brig Alexander, on a voyage from Havanna to Philadelphia, met the Cato at sea in distress, and took all her crew and some part ■of her cargo on board, and left her. Six days ■after she again fell in with the Cato — The crew •of the Cato assisted in saving other parts of the cargo. Salvage claimed by the crew of the Cato and half a share each allowed to those who had been active.</p> <p>[Cited in Brevor v. The Pair American, Case No. 1,847; Clayton v. The Harmony. Id. 2.871; Bell v. The Ann, Id. 1,245; The Two Catherines, Id. 14.288; Lewis v. The Elizabeth and Jane, Id. 8,321; Poland v. The Spartan, Id. 11,246; The Waterloo, Id. 17,-257; The Henry Ewbank. Id. 6,376; The Nathaniel Hooper, Id. 10,032; The Dawn, Id. 3.666. Approved in Cartwell v. The John Taylor, Id. 2,482. Cited in The Massasoit. Id. 9.260; The Niphin’s Crew, Id. 10,-277; The D. M. Hall v. The John Land, Id. 3,939; Hollingsworth v. Seventy Doubloons & Three Small Pieces of Gold, Id. 6,620; The Persian Monarch, 23 Ped. 822; The Dupuy De Lome, 55 Ped. 97.]</p> <p>2. About two-fifths of the gross sales allowed as salvage.</p> <p>[Followed in Bell v. The Ann, Case No. 1,245. Cited in Hand v. The Elvira, Id. 6,015.]</p>

[Appeal from the district court of the United States for the Eastern district of Missouri.) This was an appeal from a decree of the district court upon a libel in rem. [The libel was filed by Daniel G. Taylor, administrator, to recover for repairs made on the steamboat Commonwealth.) The facts appear in the report of the case when before the district court. [Case No. 13,788.)

<p>Case No. 13,788.</p> <p>Maritime Liens — Home and Foreign Ports — Actbokitt op Master to Bind— Repairs — Supplies.</p> <p>1. While in foreign ports the presumption of a necessity for relying upon the credit of the vessel for repairs arises from the necessity of repairs to enable the vessel to prosecute the voyage; in home ports the presumption of a necessity for relying upon the credit of the vessel does not exist.</p> <p>2. In a foreign port the master, as performing the duties of that officer, has authority to bind the vessel and her owners for the necessary expenses of the boat, but in the home port he has not that right.</p> <p>3. While in a foreign port the necessary repairs are restricted to such as will enable the vessel to pursue her voyage with safety, the repairs in the home port, where they may be ordered by the owners, are not of necessity restricted within such narrow limits.</p> <p>4. Those who in a home port furnish repairs and supplies, must show affirmatively, in order to have a lien on the vessel, that it was necessary to rely on the credit of the vessel; or, in other words, that the credit of the owners was not such as would justify a prudent man in furnishing the supplies and repairs solely on their personal credit.</p> <p>[On appeal to the circuit court the above decree was reversed. Case No. 13,787.]</p>

<p>Case Wo. 13,789.</p> <p>Courts — Federal Jurisdiction — Citizenship— Voluntary Appearance.</p> <p>1. By the constitution, jurisdiction is given to the courts of the United States, between citizens of different states.</p> <p>[Cited in brief in Cooper v. Newell, 15 Sup. Ct. 356.]</p> <p>2. The act of 1789 [1 Stat. 73] restricts the exercise of this jurisdiction to cases where one of the parties are citizens of the state where suit is brought.</p> <p>[Cited in Wills v. Home Ins. Co., 28 Iowa, 546.]</p> <p>3. And by the settled construction of this act, where there are more than one party, plaintiff and defendant, the court must have jurisdiction between each party, plaintiff and defendant,</p> <p>[Cited in Wiggins v. European & N. A. Ry. Co., Case No. 17,626.]</p> <p>4. This produced great embarrassment in the proceedings before the circuit courts. And to remedy this inconvenience the act of 1839 [5 Stat 321] was passed, which enables a party defendant, who may not reside in the district voluntarily to become a party to the suit.</p> <p>[Apnroved in MeCloskey v. Cobb, Case No. 8,702. Cited in Sands v. Smith, Id. 12.305.]</p> <p>5. By his submitting himself in this form to the jurisdiction of the court the jurisdiction is not ousted.</p>

This was an action of debt brought officially by the judges of the court of probate for the benefit of Jane Deblois, a citizen of Massachusetts, upon an administration bond given by her mother, Jane Deblois, with sureties, upon taking administration of the estate of her late husband, Stephen Deblois.

This was a scire facias against the garnishee, upon an attachment and judgment against Lees. The question of law arose up,on the following facts: The attachment was laid on the 14th of September, 1807.

[This was a bill in equity by Luke Taylor against Oliver S. Garretson, John G. Gar-retson, Albert Garretson, and John D. Shepard.] [Final hearing on pleadings and proofs. [Suit brought on letters patent [No. 22,-990] for an “improved mop-head,” granted to plaintiff, February 15, 1859; reissued November 10, 1868 [No. 3,682]; again November 24, 1868, and again October 19, 1S69-The specifications and claims of the last reissued patent, and those of letters patent for an…

Action on an alleged verbal contract of insurance. No questions were made upon the form or sufficiency of the pleadings.

[Appeal from the district court of the United States for the district of Maryland.] The libel was filed on the 16th of June 1845, by the appellees [James Harwood and others], owners of the steamboat Fredericks-burg, against [Robert Taylor, claimant of] the steamboat Boston, to recover damages for injuries sustained by a collision in the Chesapeake Bay.

<p>Error to Pulaski circuit court.</p> <p>[This was an action by John Taylor against Edmund Hogan.]</p>

Bill in equity [by Richard Taylor and wife, against Martin Luther] to redeem premises asserted to be mortgaged, and for relief under the circumstances, there being no written declaration of a mortgage.

<p>Case No. 13,795.</p> <p>Wharfage — Jurisdiction—Local Lien.</p> <p>[Cited in Town of Pelham v. The B. P. Woolsey, 16 Fed. 422, to the point that admiralty cannot enforce a claim for wharfage for the period during which the vessel lay sunk, and therefore not supplied with wharfage services.]</p>

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

<p>Case No. 13,799.</p> <p>Tkeaties — Political Question' — Customs Duties.</p> <p>1. Though a treaty is ft. law of the land, under the constitution of the United States, congress may repeal it, so far as it is a municipal law, provided its subject-matter is within the legislative power of congress.</p> <p>[Cited in Buckner v. Street. Case No. 2.098; U. S. v. Tobacco Factory, Id. 10.528; U. S. v. Bridleman. 7 Fed. 902; Barrram v. Robertson. 15 Fed. 214; Castro v. De Uriarte. 16 Fed. 97; In re Ah Lung. 18 Fed. 29; The Head-Money Cases, Id. 141; Re Chae Chan Ping. 36 Fed. 434. Approved in dissenting -opinions in Scott v. Sandford. 19 How. (00 U. S.) 629. and in Chew Heong v. U. S., 112 U. S. 563. 5 Sup. Ct. 255.]</p> <p>2. A promise in a treaty, that the products of one country shall not be subjected to a higher rate of duty than like products imported into the United States from other countries, addresses itself to the political and not to the judicial department of the government, and the courts cannot try the question whether it has been observed, or not.</p> <p>[Cited in Ropes v. Clinch, Case No. 12.041; Netherclift v. Robertson, 27 Fed. 741; North German Lloyd S. S. Co. v. Hedden, 43 Fed. 22. Cited in dissenting opinion in Baldwin v. Franks, 120 U. S. 703, 7 Sup. Ct. 764. Aporoved in Whitney v. Robertson, 124 U. S. 194, 8 Sup. Ct. 458. Cited in Botiller v. Dominguez, 130 U. S. 247, 9 Sup. Ct. 527. Applied in Chae Chan Ping v. U. S., 130 U. S. 602, 9 Sup. Ct. 628.]</p> <p>3. Though the treaty with Russia, of December 18. 1832 (8 Stat. 444). stipulated that no higher rate of duties should be imposed on goods imported from Russia than on like articles imported from other places, this court cannot try the question, whether a certain species of hemp, on which a duty of twenty-five dollars per ton is imposed by an act of congress, is “like” Russian hemp, within the meaning of the treaty. This is a question for congress, not for the courts.</p> <p>[Cited in Cherokee Tobacco v. U. S.. 11 Wall. (78 U. S.) 621: Edye v. Robertson, 112 Ü. S. 598. 5.Sup. Ct. 247.]</p> <p>[On error, the above judgment was affirmed by the supreme court. 2 Black (67 U. S.) 481.]</p>

[This was a bill in equity by Elisha Taylor, assignee, against August Rasch and William Bernart.] [When this case was before the court on a former occasion on demurrer to the bill, It was held that a proper ease for relief was made out by the bill. The demurrer was overruled, and the defendants were granted leave to answer. [Case No. 13,801.] Thereupon the defendants answered, and proofs have been taken.

[This was a bill in equity by Elisha Taylor, assignee, against August Rasch and William Bernart.] On demurrer to the bill of complaint.

[Motion to remand suit to state court [The bill in this case was originally filed In the common pleas of Butler county, to March term, 1878, on February 8. 1878.

“The Royal Saxon,” a British barque, arrived at Philadelphia in October, 1847, and on the 17th of November following, Magee issued a foreign attachment from… Held: for a very long time, and down to no very distant period, to be within the jurisdiction of this court to examine and pronounce for the title of ships on questions of ownership. It was not till some time after the Restoration, he says, “that it was informed by other courts that it belonged exclusively ■ to them.

<p>Case No. 13,805.</p> <p>Administrator — Additional Bond.</p> <p>After an administrator has been appointed, and the court subsequently is informed, that a large sum of money is likely to come into his possession, it will order the administrator’s removal, unless he gives further bonds, the amount of the bonds to be discretionary and decided by the orphans’ court.</p> <p>NOTE. The claim against Denmark was for the value of the prizes, three English ships of war sent into Bergen, Norway, where they were forcibly taken possession of by the Danish government, and given up to England, on the ground that Denmark did not recognize the independence of the United States. In negotiations with Denmark the latter offered to pay ten thousand dollars to liquidate the claim. Dr. Franklin declined the offer on the ground that the value of the prizes should form the just measure of compensation.</p>

<p>Case No. 13,807.</p> <p>Salvage — Compensation—How Determined.</p> <p>Salvage must be proportioned to the risque run, the service rendered, and the amount of property saved. And encouragement must be given to assist in cases of this sort.</p> <p>[Cited in Baker v. The Slobodna, 35 Fed. 541.]</p>

<p>[This was a bill in equity by George H, Taylor against Allen L. Wood, for the infringement of certain letters patent.]</p>

[Appeal from the district court of the United States for the district of Louisiana. [This was a libei by Jordan Taylor against B. D. Woods and others.) Heard on motion to dismiss the appeal.

<p>Case No. 18,810.</p> <p>Appeal — Prom Consular Court — Transcript— Record — Loose Papers — Allowance op Appeal — Citation.</p> <p>1. The record on appeal from the consular court of Japan to the circuit court for the district of California, consists of a transcript of the libel, bill, answer, depositions and all other proceedings in the case.</p> <p>2. The transcript should be a single document certified at the end as being a full and correct copy of the proceedings in the case, and authenticated by the official signature and seal of the consul.</p> <p>3. Where cn appeal from a consular court of Japan the record sent up consisted of a mass of loose, separate papers, some having the appearance of being originals and others of being copies not certified, or in any matter authenticated, the appellate court declined to take jurisdiction, gnd dismissed the appeal.</p> <p>4. -In cases of appeal from the consular and ministerial courts of China and Japan to the circuit court of the United States for the district of California, the record on appeal must show an allowance of .the appeal.</p> <p>5. A citation is necessary, unless the appeal is allowed in open court. Query, whether a citation is not always necessary, if the consular court has once adjourned after rendering a decree, there being no terms of such courts.</p>

<p>Case Wo. 13,811.</p> <p>Equity — Bilí, to set Aside Contract and Deed —Fraud—Mistake—Agency—Parties to Contract — Infant Administrator.</p> <p>1. In 1807 a contract waR entered into, between L. T , widow and administratrix of S. T.; and R. T., a daughter of S. T.. of Maryland, and T. M. B., of Virginia, whereby L. T.. as ad-ministratrix of her deceased husband, and ns guardian of her infant children, and R. T. in her own right, constituted T. M. B. their agent, and stipulated to convey to him a moiety of certain military lands in the state of Ohio, on certain conditions expressed in the contract. This contract, after reciting the title of S. T.. deceased, to these lands, which had not been patented. and the descent of them to his widow and children, proceeds thus: “And whereas a considerable portion of the said land has been sold for the payment of taxes:” “Now, therefore, in consideration of the said T. M. B. undertaking to redeem the portion of land so sold for the payment of taxes, or as much thereof as he can redeem, at his own proper expense and trouble; and also obtaining all the necessary title papers to the said 4,000 acres, or so much thereof as he can obtain at hie own proper cost and trouble, which he doth hereby undertake to do, then, in that ease, we, the said L. T. m her own right, and also as guardian of the said E. T. and S. ,T., Jr., and also the said R. T.. do agree to convey to the said T. M. B. one half of the said 4.000 acres of the said land, or one half of all which shall have been redeemed as being sold, and the half of that unsold.” The contract contained a covenant, on the part of D. T and R. T., that E. T. and S. T. Jr., should, when they respectively attained their majority, ratify the agreement and make the necessary conveyances.</p> <p>2. In 1812. L. T„ R. T„ and E. T.. the two last being then of full age, conveyed to the agent one moiety cf these 4.000 acres of land which belonged to the heirs of S. T., deceased. The effect of this conveyance was. to execute the contract of 1807. not only as to themselves, but as far as respected the interest of S. T., then a minor.</p> <p>3. The parties filed their bill to set aside the contract of 1807, and also the deeds of 1812. in execution thereof, on the ground that the contract was entered into, and the deeds were executed. through mistake and ignorance on the part of the plaintiffs, and misrepresentation and concealmeni on the Dart of T. M. B. On the trial it was fully proved that R. T. was a minor when the contract of 1807 was entered into. The court held that, with respect to the contract of 1807, that being the commencement of the defendant’s agency, the onus probandi was upon the plaintiffs to show the alleged misrepresentation and concealment, and without such proof adduced by them, the court could not interpose its authority to set aside the contract.</p> <p>[Cited in Brooks v. Martin, 2 Wall. (69 U. S.) 85.]</p> <p>[Cited in Clute v. Barron, 2 Mich. 198. Cited in brief in Segar y. Edwards, 11 Leigh, 225.]</p> <p>4. The effect of that contract was to bind the widow according to its terms, i. e., to the extent of her dower-right, and the infants to the extent of the equity it gaye for a liberal remuneration for services performed.</p> <p>5. But the question prising under the deeds of 1812, was a different >ne. So far as they could be considered a mere confirmation of the contract of 1807, which had been made for them by their mother, to the extent above expressed, they are binding upon R. T. and E. T., though not upon their infant brother. But so much of the contract of 1812 as bound them farther than that of 1807, was not the confirmation of an old, but the execution of an original contract. The principles of equity do not absolutely annul such a contract (entered into between an agent and his principals), but they subject it to a searching and rigorous examination. They require the agent to show that he withheld no information which his agency enabled him to acquire, that his communications to his principals were full,' as well as fair. If he cannot do this, the contract must be set aside.</p>

In equity. Suit for an injunction and to cancel conveyance. The bill alleges that plaintiff is a citizen of Oregon; Walker a citizen of California, and Hewett, defendant, a subject of Great Britain.

This case being called for trial Woods moved to aid a plea and stated that since the defendant [Jordan, administrator in right -of the -wife, of Brandon] pleaded, judgments had been obtained against him to the amount of the assets in his hands.

<p>Case No. 13,816.</p> <p>Pleading in Admiralty — Plea to Jurisdiction —How Interposed.</p> <p>A plea to the jurisdiction tan only be interposed by the defendant himself in propria persona. and on oath. No third person can be admitted to file such plea.</p> <p>[Cited in Hutson v. Jordan, Case No. 6,959; Van Antwerp v. Hulburd, Id. 16.826.]</p> <p>[Cited in brief in Fuller v. Bartlett, 41 Me. 263 J</p>

In this case, the assignee [Torr] made his return, that the bankrupt had delivered to him all his property, of every description, unless two hundred and seventy-eight dollars deposited in the Strafford Savings’ Bank, and two shares in the Rochester Bank, of the value of one hundred dollars each, which stand in the name of his two minor sons, one twenty, the other seventeen years of age, should be deemed and taken as the property of the bankrupt.

This case was adjourned from the district court under the following circumstances.

This action is brought to recover damages for the alleged infringement of a patent. To the complaint a general demurrer has been filed.

<p>•Case No. 13,819.</p> <p>Patents — Construction op Speci pi cations — Noveltt — Equivalents—Invention—</p> <p>- Mechanical Skill.</p> <p>1. The construction of the specification in an application for a patent, so far as the language is concerned, is a question for the court.</p> <p>[Cited in Van Antwerp v. Hulburd, Case No. 16,827.]</p> <p>2. The application of the facts to the law is for the jury.</p> <p>3. The clearness the law requires in a specification is such as will distinguish the thing patented from all others previously known, and which will enable a person skilled in the art of which it is a branch, to construct the thing specified.</p> <p>4. The production of the patent is prima facie evidence of novelty.</p> <p>[Cited in Whitcomb v. Spring Val. Coal Co., 47 Fed. 655.]</p> <p>5. If the idea involved in the patented article has occurred to others, if that idea has not been embodied in a practical form, it will not disprove novelty.</p> <p>6. If the article produced be substantially the same with the one patented, with variations in form only, or where a new and substantial result is not produced, such cannot affect the right of plaintiff.</p> <p>7. If there be invention, to whatever extent, it is sufficient.</p> <p>8. If the process required no more skill than that possessed by an ordinary mechanic skilled in the business, there is an absence of inventive faculty, and only the exercise of mechanical skill.</p> <p>This was an action at law brought to recover damages for the infringement of a patent; and the following instructions were given to the jury:</p> <p>Verdict for plaintiffs for the sum of §800.</p>

<p>Case No. 13,820.</p> <p>Salvage — Compensation- — Separate Consort-ships.</p> <p>[Twenty per cent, allowed on goods saved from a wreck, with comparatively little labor and expense, by a first expedition, 50 per cent, on goods saved partly by diving, by a second expedition, and 60 per cent, on goods saved entirely by diving, by subsequent expeditions.]</p> <p>[Cited in The Isaac Allerton, Case No. 7,088; Baker v. The Slobodna, 35 Fed. 541.]</p>

<p>Case No. 13,825.</p> <p>Bankrupty — Partnership — Notice —Void Adjudication — Assignment under State Law.</p> <p>1. Where one partner, on his voluntary petition, obtained from the register an adjudication against the firm, without giving the notice required by rule 18, held, that the adjudication is void.</p> <p>2. Where the same person, on the same petition, obtained an adjudication against a firm of which he had been a member, but which had been dissolved by the death of his copartner, held, that the adjudication is void.</p> <p>3. The assignee in bankruptcy is entitled to recover property assigned in fraud of the bankrupt act [of 1867; 14 Stnt. 517], although such an assignment was made in strict compliance with the insolvent law of the state, and was for the equal benefit of all the creditors.</p> <p>NOTE [from 17 N. B. R. 345]. The “first clause” mentioned in the opinion refers to section 5128, and the “second clause” to section 5129 itself; section 35 of the bankrupt act having been divided by the revision of the statutes.</p>

[This was a libel in rem by Joseph Stiek-ney and others against the materials and cargo of the ship Tellumah for salvage.]

<p>In bankruptcy.</p>

<p>Case No. 13,828.</p> <p>Forfeiture — Landing Goods without Permit— Reimportation.</p> <p>1.Goods of whatever growth or manufacture brought from a foreign port or place, and landed at a port or place,within the United States without a permit, are forfeited to the United States under section 50 of the collection act (1 Stat. 665).</p> <p>[Followed in The Coquitlam, 57 Fed. 706.]</p> <p>2. Foreign goods once lawfully admitted into the United States, if re-exported or voluntarily placed within the limits of a foreign jurisdiction, lose the character imparted to them by such admission, and if re-imported into the United States, it must be done in conformity with the law governing the importation goods of a foreign growth or manufacture from a foreign country.</p> <p>3. If opium was shipped from San Francisco via.the foreign port of Victoria to Portland, and while the ship was lying at Victoria the shipper of the opium should cause it to be taken ashore and placed in a house in Victoria, for even .a few hours, or less time, and then cause it to be re-laden upon the ship and brought thence to Portland, such opium would be brought from a foreign port and liable to become forfeited by being landed without a permit.</p>

This case came before the court upon the certificate of the register in charge, upon a statement of facts and of controverted questions assumed to have arisen between the assignee in bankruptcy and the lessors in a lease made to the bankrupts, as follows, viz.: “The said lessors, to wit: the executors and executrix of Nathan Burr, deceased, by said written lease demised for the term of three years from May first, eighteen hundred and seventy, to said bankrupts [Ten Eyck &…

This was an information founded on the 5th section of the act of the 1st March, 1809, c. 91 [2 Story’s Laws, 1114; 2 Stat. 528, c. 24], for an alleged importation into the United States of ten hogsheads of rum of the growth, produce, and manufacture of some colony or dependency of Great Britain. On the trial, the importation was admitted to have been at Boston, about the 1st of January, 1812, and the single question was, whether the rum was of British origin.

<p>Case No. 18,832.</p> <p>Judgment — Action on — Averment of Jurisdiction — Plea ding.</p> <p>In an action on a judgment of the superior court of Chicago, Illinois, the declaration averred that that court was a court of general jurisdiction, duly created by the laws of Illinois, but did not aver that that court had jurisdiction of the person of the defendant, either by service of process, appearance, or otherwise: Held, on demurrer, that the declaration was sufficient.</p> <p>[Cited in Wakelee v. Davis, 50 Fed. 023.]</p>

<p>[This was a proceeding by Tenny & Greg- > •ory against Collins.]</p>

This was a petition by John J. Fairbanks, judgment creditor of Terry & Cleaver, bankrupts, for an order requiring the assignee to pay their execution in full from the proceeds of sales of property coming to his hands, on the ground that his execution was a lien upon the property.

<p>Case No. 13,834.</p> <p>Insolvency — Abbest—Costs—Discharge.</p> <p>An insolvent debtor will be discharged from arrest for costs accrued partly before and partly after his discharge under the act.</p>

In bankruptcy. This is a proceeding on the part of the creditors of the firm of Arbo-gast & Terry, to declare Lyman Terry, who was a special and limited member of said firm, a bankrupt, and subject his private property to the debts of said firm. The original petition was against Arbogast and F. P. Terry, and the petitioners then filed an amendment asking adjudication against Lyman Terry. To this amended petition Lyman Terry answered.

<p>[This was an action by George E. Terry, receiver, etc., against Leopold Bamberger.]</p>

The plaintiff, Jas. E. Terry, a citizen of the state of Connecticut, commenced his suit in the district court of Douglass county against said defendant, the Imperial Fire Insurance Company, to recover for a loss by fire, upon a policy of insurance issued by that company.

This is an action on a life insurance policy issued by the defendant to the husband of the plaintiff [Mary Terry]. The policy contained a condition avoiding liability thereon in case the assured shall “die by his own hand.” Answer: that the assured died from poison, which he took for the purpose of destroying his life. Replication: that he was insane at the time and- with respect to the act in question. Trial to jury, before Hr. Justice HILLER, and DILLON, Circuit Judge.

<p>Case No. 18,840.</p> <p>Patents — Invention—Mechanical Skill.</p> <p>The desirability of an improvement, the difficulties to be encountered, and the unsuccessful experiments of others in the same direction, tend strongly to show that he who achieves the desired result was not merely a better mechanic than his predecessors, but that he had a problem, which required the Bkill of the inventor, to solve.</p> <p>[Cited in Electrical Accumulator Co. v. Ju-iien Elec. Co., 38 Ped. 130.]</p> <p>[For another case involving this patent, see Terry Clock Co. v. New Haven Clock Co., Case No. 13,841.]</p>

<p>Case No. 13,841.</p> <p>Patents — Claim—Invention—Anticipation— Clock Escapement.</p> <p>The patent granted to Silas B. Terry, assignor of the complainant, dated December 1st, 1868, for a new manner of constructing the pallets of clock escapements, construed by the court, and upon the construction given, held, that the patent is broader than the invention, and that the invention as claimed has been anticipated.</p> <p>[Patent No. 84.517 was granted to S. B. Terry. Dec. 1, 1868. For another case involving this patent, see Terry Clock Co. v. New Haven Clock Co., Case No. 13,840.]</p>

[In review of the action of the district court of the United States for the district of Kansas.) Petition by the bankrupt, Tertelling, for a review of an order of the district court in relation to property claimed by him as a homestead under the constitution of Kansas.

Appellants [H. F. Teschemacher and others] claim the tract of land known as Lup Xomi, in Napa county, alleged to contain fourteen leagues, granted by Governor Manuel Micheltorena, on the fifth of September, 1844, to Salvador Vallejo and Juan A. Vallejo. The claim was rejected by the board of land commissioners.

<p>In bankruptcy.</p>

[This was an application by Louis Teuscher for a writ of habeas corpus.) Louis Teuscher, it appears, was one of the defendants in the late w'hiskey prosecutions. He was under several indictments in the district court, one being for felony, which was nolle prosequied, and the two others for misdemeanors, which were consolidated.

This was an indictment for bigamy in the district court of La Fayette county.

Heard upon motion to remand to the state court. This case was removed from the district court of Harrison county, Texas, to the United States circuit court at Tyler, then in the Western district of Texas. A motion to remand the cause was argued at the November term, 1878, before Judge T. H. DUVAL, district judge of the Western district, and he held the matter under advisement.

<p>Case No. 13,849.</p> <p>Seamen — Wages—Setting ope Damages — State ment Made bepore Shipping Commissioner —Evidence.</p> <p>1. A second mate of a vessel filed a libel against her, to recover $91.75, for wages. The amount of his wages was admitted, but the owners of the ship set up as an offset, that he had wrongfully assaulted one of the sailors on the voyage, to the damage of the ship of $120. The assault and the damage were proved. But the libellant urged that as the deduction was not -claimed in the statement of wages made by the master to the shipping commissioner, nor entered in the log, the defence could not be made. Held, that as the log was not produced, the presumption was that the entry was not made in the log.</p> <p>2. Under sections 4550, 4596, and 4597, the court has a discretion to reject the evidence offered, but this does not prevent proof being given of the facts, and as the facts were proved beyond dispute, the owners were entitled to the set-off, and the libel must be dismissed.</p>

The libellant [L. Thaeher], as master and part owner of the schooner, Charles E. Gibson, chartered her to the respondents, to bring a cargo of coal from the Albion Mine, at Pictou, Nova Scotia, to Boston. The charter party contained the following stipulations: “It is agreed that the lay days for loading and discharging shall be as follows (if not sooner despatched), commencing from the time the vessel is ready to receive or discharge cargo.

<p>Case No. 18,851.</p> <p>Forfeiture — Internal Revenue Regulations— Spirits — False Documents.</p> <p>1. Distilled spirits, unrectified, were seized as forfeited under section 3451 of the Revised Statutes, which provides, that every person who falsely or fraudulently executes or signs any document required by the provisions of the in-terna] revenue laws, or by any regulation made in pursuance thereof, or who procures the same to be falsely or iraudulently executed, or who advises, aids in, or connives at such execution thereof, shall be imprisoned, &c., and the property to which such false or fraudulent instrument relates shall be forfeited. Under eections 321 and 3249, the commisssioner of internal revenue had made a regulation that a rectifier, before emptying spirits to be rectified, should give a notice, form 122, to the collector, and that thereupon a gauger should reguage such spirits and make a report, form 59, from which the rectifier should make an entry in form 122, and the gauger should certify on the latter form as to his making the gauge and seeing the packages emptied and the stamps destroyed, and as to the correctness of such entry by the rectifier. The alleged cause of forfeiture was, that the owner of the spirits, with the purpose of obtaining stamps for rectified spirits, to be placed on other spirits on which the tax had not been paid, made false returns as to the first named spirits, on form 122, and, by bribing- a gauger, induced him to make a false certificate on form 122. and a false return on form 59, so that the packages were not emptied, nor the stamps destroyed. being the packages seized. Held, that the regulation was a valid and reasonable one.</p> <p>2. It applied to unrectified spirits.</p> <p>3. The false documents related to the spirits in respect to which the certificate and report were made.</p>

This was a libel, for wages alleged to be due for services performed by the libellants [Marmaduke Thackarey and Jacob Crilley], as mariners, on the high seas. The libel concluded with a prayer .for process of attachment. The boat, which was of forty-two tons burthen and upwards, plied between the port of Philadelphia, and Cooper’s creek, a small stream wdiich is nearly opposite thereto, and enters the Delaware from the Jersey side of the river.

In admiralty. The British barque George Canning was- lying at anchor withih 300 yards of the Battery, the night of the 30th of March, 1842. At about 4 o’clock in the morning, the steamboat North America, coming from Albany, rounded to just below the George Canning, in order to come into her berth at the foot of Courtlandt street.

<p>Case Wo. 13,856.</p> <p>Maritime Lien — Supplies—Bonding Vessel— Reakrest.</p> <p>Where a libel was filed against a vessel, to recover for supplies furnished to her, and the vessel, having been seized under process issued on the libel, was on the 10th of July, 1857, discharged on a bond given without notice to the libellants, the practice of the court at that time not requiring such notice, and, on the 4th of March, 1858, the libellants, on consent of the claimants, discontinued the cause, paying the costs of the action. and, on the same day, filed another libel against the vessel for the same cause of action: Held, that the vessel was discharged of the lien for the supplies by the giving of the bond in the first suit, and was not liable to the second action.</p> <p>[Cited in Bolten v. The James L. Pendergast, 30 Fed. 720; Morrison v. District Court of United States. 13 Sup. Ct. 253; U. S. v. The Haytian Republic, 14 Sup. Ct. 994.]</p>

■ This -was a libel, filed by B. Seaman against the steamship Thames, to recover damages for the nondelivery of one hundred and eleven bales of cotton.

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

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

<p>Case No. 13,860.</p> <p>Bankruptcy — Sale by Sheriff aftek Adjudication — Effect of Adjudication — Setting Sheriff’s Sale Aside.</p> <p>1. Where a judgment was a lien on the real estate of the judgment debtor, and an execution had been levied thereon, and the property advertised for sale, but before sale the judgment debtor was adjudicated a bankrupt, the sheriff, unless restrained by the bankrupt court, might well proceed to sell, and his sale would be valid.</p> <p>2. The naked fact, that the judgment debtor had been adjudicated a bankrupt before the sale, did not of itself operate as an injunction to restrain the sale.</p> <p>3. When, however, real estate was first seized in execution by the sheriff, loDg after the bankruptcy, and sold for little more than one-tentli its value, the sale was set aside, and the property turned over to the assignee.</p> <p>4. When several execution creditors, for the purpose of preventing a sacrifice of the property of their debtor, enter into an agreement to bid off the property, and under this agreement it is bid off for its full value, the sale will not be set aside on account of such agreement.</p> <p>[5. Cited in Be Beck, 31 Fed. 555, to the point that application for review must be made within a reasonable time.]</p>

In equity. The Thames Loan and Trust: Company filed its bill against Jacob B. Julian and Martha, his wife, and Arthur L. Wright, assignee of said Jacob B. Julian, to-foreclose a mortgage given by the Julians-on certain real estate to secure a loan of $10,000.

This was an action by [Charles Thatcher] the master of the ship Celia against [James McCulloh] the consignee of part of her cargo to recover freight on a shipment of lead from New Orleans to New York. The hills of lading were dated at New Orleans the 27th and .20th of August, 1844. The ship sailed about the time of their date, partly laden, and ran to Havana, to take in the complement of her cargo.

<p>Case No. 13,864.</p> <p>Patents — Pleading—Infringement—Aik Heating Furnace.</p> <p>1. It is not necessary to state, in a bill of complaint for the infringement of a patent, the particular claims infringed by the defendant.</p> <p>2. A statement of the complainant’s patent, and a general allegation that the defendant haR infringed, is sufficient to put the defendant upon his answer, and at the final hearing the complainant may specify the claims of the patent, on which he will ask for a decree.</p> <p>3. The second and third claims of letters patent No. 71,244, granted to John M. Thatcher, November 19th, 1867, for an “Air-Heating Furnace,” namely: “(2) The clinker-cleaning passage from and through the furnace front to and into the fire-pot, enclosed by the plate connected with the fire-pot, furnace front, and ash-pit, so as to prevent communication with the hot air chamber surrounding the fire-pot, substantially as described,” and “(3) in combination with the clinker-cleaning passage, the downward pas■sage leading therefrom to the ash-pit, substantially as described”: Held, valid.</p> <p>[For another case involving this patent, see Thatcher Heating Co. v. Spear, 1 Fed. 411.]</p>

Assumpsit on certain notes made by Lewis Rousmaniere, payable to the defendant [Andrew Winslow], or his order, at the Merchants Bank in Newport. The declaration contained various counts against the defendant, as indorsee, in favour of the plaintiff [David Thatcher] as indorser. Plea, the general issue. At the trial, the defence turned principally upon the point of forgery of the defendant’s name, as indorser, by Rousmaniere.

<p>[This was a bill in equity by the Thatcher Heating Company against William H. Drum-mond and others.]</p>

[This was a bill in equity to foreclose a mortgage by Adam W. Tbaxter against Reuben Hatch and others. [A bill had previously been filed by Hatch against Preston, praying for an injunction, etc. A motion to dismiss the cause for want of jurisdiction, and to repiand it to the court from whence it came, was overruled. Case No. 6,208.]

<p>Case Mo. 13,867.</p> <p>Limited Partnerships — Validity op Organization — Cash Contributions.</p> <p>[The contribution of a special partner must, under the Massachusetts statute, be in actual cash, and all the partners are held as general partners, if the transaction, while showing an apparent contribution in cash,1 resulted in fact in putting in goods and debts equivalent to cash.]</p> <p>THAYER, In re. See Case No. 5,305.</p>

<p>[This was a bill in equity by George Thayer against Nathan Herrick to quiet title.]</p>

<p>Case No. 13,869.</p> <p>Election — Condition Precedent — Cubative Act.</p> <p>The bonds in question were issued to the Kansas & Neosho Valley Bailroad Company, or bearer, part dated in September, 18G7, and the rest in June, 1868. There is no recital in the bond, except that it purports to be a “stock bond,” and states that it is issued “by order of the board of commissioners of the county of Johnson.” They are signed by the chairman of the board, attested by the clerk, and are under the seal of the county. The present questions arose on demurrer to several special pleas in the answer. The general nature of these pleas appears in the opinion.</p>

Action [by Nathaniel Thayer against Montgomery county] on coupons on county bonds. The bonds in suit are in the usual form, signed by the chairman of the board of county commissioners, attested by the clerk, and are under the seal of the county.

[This was a bill in equity by Edward S. Thayer and others against Joseph Wales and James M. Dietz.] [Motion for preliminary injunction. Suit brought upon letters patent [No. 12,492] for an “improvement in machines for making candles,” granted to John Stainthorp, anarch 6, 1855, extended for seven years from March 6, 1869, and assigned to complainants.

In equity. Pleas to the jurisdiction and in abatement. Suit brought on letters patent [No. 12,492] for an “improvement in machines for making candles,” granted to John Stainthoip, March 6, 1865, extended for seven years from March '6, 1869, and assigned to complainants [Edwin S.Thayer and others], more particularly referred to in the report of the case of Thayer v. Wales [Case No. 13,871], The bill averred that one James M. Dietz, one of the defendants, resided in the state…

This was an action of covenant, brought by'the plaintiff [Levi Thayer] against the defendant [Oliver Wendell], for a breach of the covenants contained in a deed of conveyance of land, dated the 2d day of August, 1792, and giv-n by the defendant, as sole surviving executor of the last will and testament of John Erving, deceased.

The subject of controversy in this suit was certain lots embraced in blocks No. 3 and 14 in the city of Paris, Texas, claimed as a homestead by the bankrupt. C. T. Thebo was adjudicated an involuntary bankrupt on the 26th day of May, 1874.

<p>Case No. 13,877.</p> <p>Award — Report of Referees — Exceptions — Additional Pacts.</p> <p>When facts to sustain an additional exception to the report of referees, have been discovered, since the period for filing exceptions has passed; the court will allow the additional exception to be filed: although, if no exceptions had been filed in time, the discovery of such circumstances would noi induce the court to allow them to be filed.</p> <p>[Cited in Messenger v. Broom, 1 Pin. 640.]</p> <p>[See Case No. 13,878.]</p>

<p>Case No. 13,878.</p> <p>United States — Insolvency — Preference — Prior Judgments.</p> <p>1. Insolvency or inability to pay his debts, by any one who is a debtor to the United States, does not give to the United States a preference, unless the same be accompanied with a voluntary assignment of all the property of the debt- or for the benefit of his creditors. Aliter if there be a legal insolvency.</p> <p>2. The preference given to the United States, in the cases mentioned in the law, supersedes prior judgments upon the estate of the debtor to the United States.</p> <p>A writ of error was prosecuted to the supreme court, where the decision of the circuit court was affirmed; the opinion here stated having been delivered by Mr. Justice 'Washington, as the opinion of that court. 2 Wheat. [15 U. S.] 396.</p> <p>See the following cases, on the points decided in this case: U. S. v. Hooe, 3 Craneh [7 U. S.) 73; Harrison v. Sterry, 5 Craneh [9 U. S.] 289; Prince v. Bartlett, 8 Craneh [12 U. S.] 431; M’Clean v. Rankin, 3 Johns. 369; Smith v. Tinker, 2 Day, 236.</p>

On motion for distribution of proceeds. The schooner Theodore Perry, having been libeled by a large number of parties, was sold pendente lite, on the 16th day of September, 1875, and the proceeds paid into court Among these libels were: First, by the Detroit Dry Dock Company, for repairs furnished at Detroit, the home-port of the vessel, in July, 1874, to the amount of $2,-738 26.

Libellant shipped on board the Theodore Perry for a voyage from Detroit to Ossineke, Mich., thence to Tonawanda, N. Y., and back to Detroit. Shipping articles were signed in St. Clair river, the day after the departure of the schooner on her trip to Ossineke. On her way from Ossineke to Tonawanda she stopped, at Detroit for repairs, when libel-lant left the vessel and commenced this suit for wages.

Sur rule to show cause why an exoneretur should not be entered on the bail piece; the defendant [P. De Basavilbaso] having been discharged by the insolvent laws of Pennsylvania.

<p>Case Wo. 13,882.</p> <p>Bankruptcy — Exemptions—Discretionary Power — Exceptions.</p> <p>1. When a bankrupt applies to his assignee for the exemption of property under the fourteenth section of the act [of 1867 (14 Stat. 522)] and the application is refused, the proper way of bringing the matter before the district judge for his decision, is to except to the decision of the assignee</p> <p>• 2. The exemption clause in the fourteenth section of the act, authorizing the assignee to set apart “other articles and necessaries,” -vests a discretionary power in the assignee, and his action thereon ought not to be reversed unless it plainly appears that he has abused his authority.</p> <p>[Cited in Re Steele, Case No. 13,346.]</p> <p>[Cited in McClung v. Stewart, 12 Or. 431, 8 Pac 448 J</p> <p>.3. Such exemptions, however, cannot include manufactured articles kept for sale.</p> <p>NOTE. Where the assignee wrongfully exempts in his list, household furniture, necessary articles, etc., exceptions must be taken to his report. In re Gainey [Case No. 5,181].</p> <p>But in cases of exempting real estate unlawfully, no exceptions need be taken to the as-signee’s report, as no title passes thereby, but the creditors may except to the assignee's account, and hold him responsible for the value of the exempted property. Id.; In re Farish [Case No. 4,647]; and In re Jackson Lid. 7,127].</p>

[This was an action by Christian Thielman against Joseph Reynolds to recover damages for the conversion of certain wheat. There was a verdict for plaintiff, and defendant moved for a new trial.] The plaintiff brought suit to recover damages for a conversion of his spring wheat in the year 1874.

The plaintiff [Mary H. Thistle, administra-trix] presented in the district court a claim for a large number of ties sold and delivered to the bankrupt.

[Appeal by G. D. Thomas from the decision of the commissioner of patents rejecting his application for an improvement in devices for driving machinery.]

In bankruptcy. In April, 1875, George L. Thomas and Byron G. Sivyer, the bankrupts, formed a copartnership for the purpose of carrying on a livery and boarding stable business, under the name and style of Thomas & Siv-yer. The copartnership relation began about the 8th or 9th of April, 1875, although the active conduct of the business did not commence until some days later.

<p>Case No. 13,887.</p> <p>Extradition — Treaty —Executive Mandate — Proceedings in Foreign Jurisdiction —Bavaria—German Empire.</p> <p>1. In cases where a treaty of extradition with a foreign country for the surrender of fugitives from justice does not require the issuing of an executive mandate, as a prerequisite to the entertaining of proceedings, and the issuing of a warrant of arrest, by a magistrate, such a prerequisite is not necessary.</p> <p>[Cited in Castro v. De Uriarte, 12 Fed. 251,16 Fed. 96.]</p> <p>[Cited in People v. Board of Sup’rs of Columbia Co., 134 N. Y. 6, 31 N. E. 324.]</p> <p>2. The convention for extradition between the United States and Bavaria, of September 12, 1853 (10 Stat. 1022), was not abrogated by the operation of the constitution of the German empire, adopted in 1871, as affecting the further independent existence of Bavaria.</p> <p>[Cited in Wunderle v. Wunderle, 144 Ill. 56, 33 N. E. 195.]</p> <p>3. The sufficiency of the complaint before the commissioner, upheld.</p> <p>4. It is not a necessary preliminary to an investigation here, under an extradition treaty, that a warrant of arrest should have been issued, or proceedings had, against the accused, in the foreign jurisdiction.</p> <p>[Cited in Re Roth, 15 Fed. 508.]</p> <p>[Cited in People v. Board of Sup’rs of Columbia Co., 134 N. Y. 6, 31 N. E. 324.]</p>

[John Thomas, paymaster’s clerk in Vicksburg, alleged to have altered certain vouchers, thereby defrauding the government, was arrested by order of General Gillem, and brought before the court on writ of habeas corpus. The relator’s counsel claimed that the prisoner was wrongfully in custody, inasmuch' as he was not in the military service.

<p>Case No. 13,891.</p> <p>Bankruptcy — Adjudication — Motion to Set Aside — Acts of Bankruptcy — Creditors —Notice.</p> <p>1. Where a petition by a creditor for an adjudication is filed, and the debtor appears and confesses the acts of bankruptcy charged, and under section 43 of the bankrupt act [14 Stat. 538], a trustee is appointed, a creditor who appears and proves his debt, cannot after the death of the bankrupt, and the rights of other creditors have intervened, be allowed to appear and set aside the adjudication.</p> <p>[Cited in Re Herman, Case No. 6,405; Re Meade, Id. 9,31‘0; Allen v. Thompson, 10 Fed. 124.]</p> <p>2. Under the act of March 2, 1807, a creditor not appearing to the petition of adjudication, is not estopped from denying the acts of bankruptcy charged, so far as they affect him with notice.</p> <p>THOMAS, In re Sec Case No. 10,395.</p>

<p>Case No. 13,893.</p> <p>Execution— Forthcoming Bond — Marshal’s Commissions.</p> <p>The marshal may include his commissions in a forthcoming bond, and is also entitled to his commissions upon an execution on the bond.</p>

<p>Case No. 13,894.</p> <p>PLEADING AT Law — PLEA DENTING INSTRUMENT Sued ox — Affidavit—General Issue. '</p> <p>1. By the rules of the court, a plea which denies the instrument on which the action is founded, or the indorsement of it, must be sworn to.</p> <p>2. If filed without affidavit, the general issue may be good for some purposes, but the note and the indorsement, under such plea, are admitted.</p> <p>3. And this admission is, that the signature on the note is as averred in-the declaration.</p> <p>[Cited in Ames v. Quimby, 106 U. S. 346, 1 Sup. Ct. 120.]</p> <p>[Cited in Pegg v. Bidleman, 5 Mich. 29.]</p>

[Appeal from the district court of the United States for the district of Maryland.] The libel in this case was filed on the 29th of May, 1843, by the appellee [Lambert Git-tings], as assignee of Don Jose V. Adot, against the schooner El Caballero [William Thomas, claimant], on a bottomry-bond.

In admiralty. This was a libel in person-am, by [William Thomas] a seaman against [Cadwallader Gray] a master for the recovery of wages, and of damages for an aggravated assault and wounding by shooting with a pistol. The libel was filed on the 5th of June, and the process sued out was returnable on the 7th of July. On the 25th of June, a supplemental libel, by way of amendment, was filed.

Writ of right on the seisin of the demand-ants. Plea, the general issue, and joinder on the mise. At the trial, at May term, 1S37, it appeared that the demandants [James Thomas and another] claimed title to the premises, under a deed from Jamea Dunning to them, dated June 1, 1800; and also a deed from Isaac Hatch and others to them, dated April 2, 1803.

<p>Case No. 13,901.</p> <p>Makitime Lies — Foreign Vessel — Owner’s Domicile — Claimant—Mortgagee in Possession , —Priorities—Registry Notice.</p> <p>1. The remedy in rem for supplies or repairs furnished here tr a vessel foreign to the port is according to the ’aw maritime, and is not governed by the local law.</p> <p>2. When the vessel supplied is a domestic one. this court affords no other relief therefor than is provided by the state law.</p> <p>3. In this respect a vessel owned in New Jersey and supplied in New York is a foreign vessel here. ,</p> <p>[Cited in The Sarah J. Weed, Case No. 12,-350.]</p> <p>4. The registry or enrollment in this port of a vessel owned out of the state does not render her a domestic vessel.</p> <p>[Cited in The Albany, Case No. 131.]</p> <p>5. The law appertaining to the domicile of the owner determines the character of personal property.</p> <p>6. Material men residing in this state cannot, in this court, arrest a vessel owned in another state for supplies furnished by them to her in her own port, unless by virtue of the local law of the owner’s domicile.</p> <p>7. Objection to the right of a claimant to intervene in an admiralty cause must be taken by preliminary exception to his competency.</p> <p>8. The objection will not be listened to after the cause is put at issue and brought to hearing upon the merits.</p> <p>9. A mortgagee in possession is competent to intervene and contest claims affecting his lien upon the vessel.</p> <p>10. A mortgage duly registered according to the law of this state has priority of lien on a domestic vessel over debts to material men subsequently «cerned, although the mortgagor retains possession of her.</p> <p>[Questioned in The Hendrik Hudson, Case No. 6,358 ]</p> <p>11. If the owner and mortgagor removes from the state to the place of residence of the mortgagee. keeping possession of the vessel, the mortgage lien given by the local law ceases.</p> <p>12. Registry notice does not affect third parties, unless the owner continue to reside in this state.</p> <p>13. A renewal of notice in the state registry, subsequent to the act of congress of July 29, 1850 [9 Stat. 440], does not retain a mortgage lien on a vessel unless the mortgage be also recorded in the office of the collector of the port.</p>

Libel for an assault and battery, and imprisonment, brought against Charles Thomas. master, and John M. Jordan, mate, of the brig Moro, by Joseph H. Lane, a seaman of the same vessel, shipped for a voyage on the high seas, to wit: from Portland to Havana, and back to Portland. The libel asserted the assault and battery, and imprisonment. to be in the harbor of Havana; and set forth the circumstances specially.

This was a rule to show cause why the judgment confessed in this suit, and the ha-bere facias possessionem, should not be set aside, and possession be restored to the tenant of Morris, and Morris be admitted as defendant in the stead of Newton. The facts of the case were as follows: Pending this ejectment, the land in dispute was sold under a judgment rendered on a mortgage, and was purchased by Alorris at the sheriff’s sale, he being the highest bidder.

Petition for freedom [by Robert Thomas, a negro, against Elizabeth Magruder]. offered in evidence the record of the deed of manumission from Reginald Magruder, recorded in the office of the clerk of this court. Z. C. Dee objected and called for the original, and proof by the subscribing witnesses.

<p>[This was an action on a promissory note by Thomas’ assignee against W. W. Page and C. O. Page.]</p>

The plaintiff [Robinson Thomas] had obtained an injunction to a judgment obtained by the defendant [James Perry] for the last instalment due by the plaintiff, being part of the consideration money for certain lauds in New Jersey, sold and conveyed by the defendant to the plaintiff.

<p>Case No. 13,907.</p> <p>Notes — Assignee without Notice — Indiana Statute.</p> <p>1. Where a promissory note is made, the consideration of which is to be defeated if certain bilis of exchange shall not be paid in the hands of the assignee without notice, the nonpayment of the bills cannot be set up as a defence.</p> <p>2. And this principle is not affected by the statute of Indiana, which provides that the maker of the note may set up any defence against the assignee which he could make against the payee.</p> <p>3. The agreement between the original parties would be a fraud upon an innocent assignee.</p>

<p>These are suits on coupons attached to bonds issued by the respective counties to pay for subscriptions to stock in a consolidated railroad company, and are in all essential particulars dependent on the same "legal questions. The bond in the Scotland county case reads as follows: “United States -of America. §1,000. Eight per cent. Railroad Bond, County of Scotland. Twenty-five years. Know all men by these presents: That the county of Scotland, state of Missouri, acknowledges itself indebted to the Missouri, Iowa, and Nebraska Railway Company, a corporation existing under and by virtue of the laws of the states of Missouri and Iowa, formed by consolidation of the Alexandria and Nebraska City Railroad Company, formerly Alexandria and Bloomfield Railroad Company, of the state of Missouri, and the Iowa Southern Railway Company, of the state -of Iowa, in the sum of one thousand dollars, which sum the said county hereby promises to pay to the said Missouri, Iowa, and Nebraska Railway Company, or bearer, at the Farmers’ Loan and Trust Company. New York, on the 31st day of December, A. D. 1895. together with interest thereon from the 31st day of December. 1870, 'at the rate of eight per cent per annum, which, interest shall be payable annually, in th" city of New York, on the 31st day of December in each year as the same shall become due. on the presentation of the coupons hereto annexed. This bond being issued under and pursuant to an order of the county court of said Scotland county for subscription to the stock of the Missouri, Iowa, and Nebraska Railway Company, as authorized by an act of the general assembly of the state of Missouri, entitled ‘An act to incorporate the Alexandria and Bloomfield Railroad Company,’ approved February 9. 1857. In witness whereof,” etc. The petitions alleged the plaintiffs to be holders for value before due. The defendant counties demurred to the petitions.</p>

[This was a hill in equity by Samuel E. Thomas and others against the Shoe Machinery Manufacturing Company and others to restrain the infringement of reissued letters patent No. 6,550, granted to A. F. Johnson July 29. 1875. The original letters patent No. 42.-292 was granted to Johnson April 12, 1864.]

<p>The bill in this case was filed on the 18th day of December, 1845, by [Philip F. Thomas] the permanent trustee of J. M. Lloyd. Its object was to obtain relief, by injunction, against a judgment for $6,571.95, recovered in this court on the 18th day of April, 1844, against the said Lloyd, by Henry H. Watson, a resident of the city of New York. It stated that at the time of the confession of said judgment, Watson held two promissory notes of Lloyd, one of which amounted, principal and interest, at the date of the judgment, to about $4.328, and was given in consideration of a loan of money usuriously made by said Watson to said Lloyd: and the other of said notes was given for money lost at play, and for no other than a gambling consideration. That on the day of the rendition of the judgment, or immediately before, an agreement was entered into by the said Lloyd, with the counsel of Watson, to confess judgment for the sum of four thousand dollars and costs; that, at the time of the agreement, the promissory notes were not shown to Lloyd, nor was any calculation made of the amount due on them, the said Lloyd’s agreement being to confess judgment for $4.000. and no more; and that he left town with the belief that judgment was so confessed, and remained under that impression till recently; that independently of said agreement, an error was made, as the defendant admits, in the rendition of the judgment, which is for $485.59 more than purports to be due on said notes. That said Watson had caused execution to be issued for the whole amount of the judgment. and had levied upon the lands held by said Lloyd at the date of the judgment, and had advertised the same for sale. That although Lloyd himself did not avail himself of the defences which he might have made to the suit on said notes, yet the complainant, as his trustee in insolvency, and in respect of the rights of his creditors, was entitled to be relieved from the effect of said judgment, to the extent of its excess over and above the money actually loaned by said Watson to said Lloyd, and the legal interest thereon, which he, the complainant, was willing and tendered to pay to said Watson. That the complainant claimed the benefit of said defences to said judgment, which he asked to hare reformed and corrected, and further prayed that the defendant in his answer might say — (1) Whether on the 18th of April, 1844, he was not the holder of two promissory notes given to him by James Murray Lloyd, and if he was, what was the amount due thereon, on said day, and that he might produce the same. (2) Whether said notes were ndt then in the possession of his counsel, in the city of Baltimore, and did not constitute the claim upon which the judgment in the circuit court of the United States for the district of Maryland, thereinbefore referred to, was rendered? (3) Whether said judgment was not rendered in pursuance of a supposed agreement with James Murray Lloyd, the defendant therein, and whether the same was not erroneously so rendered? (4) W'hether the agreement in this bill alleged to have been entered into by said Lloyd, was not, in fact, the agreement he did make? (5) What was the consideration for which said notes were given by the said Lloyd to him, the said Watson, and what the consideration of each of them?</p> <p>A short copy of the judgment was exhibited with the bill. The injunction prayed for was granted on the 20th of December, 1845. On the 10th of January, 1846, the defendant, Watson, filed his answer, in which he admitted the application of Lloyd for the benefit of the insolvent laws, the appointment of the complainant as his permanent trustee, the due execution of his bond, and the rendition of the judgment, as stated in the bill; but denied that any mistake was committed in the rendition of said judgment, except the one of 8485.59, mentioned in the bill, which the defendant’s counsel agreed to correct, immediately upon its discovery. He stated that, at the time of the confession of said judgment, he did hold two promissory notes of said Lloyd, which were placed in his counsel’s hands for collection,, and were deposited in this court at the time of the rendition of the judgment on them; but he denied that any such agreement as was set forth in the bill, in regard to said confession of judgment, was ever entered into, but he was informed by his counsel, and believed, that the only agreement made in reference to said confession of judgment was an agreement to confess judgment for the whole amount of the claim represented by said notes. To the first interrogatory he answered, that he was, at the time therein mentioned, the holder of two promissory notes of the said Lloyd, which were filed as aforesaid, and the amount due thereon was the sum stated in the judgment, less the amount aforesaid erroneously calculated as interest. To the second interrogatory he answered, that said notes did constitute the claim upon which said judgment was rendered. To the third interrogatory he answered, that said judgment was rendered upon the agreement stated in his answer, and upon no other agreement, and that there was no error in the rendition thereof, except the one stated in his answer. To the fourth interrogatory he answered, that there never was any such agreement as stated in this interrogatory. And the defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said bill contained, touching the consideration of the said notes, as being tainted either with usury or gaming, demurred thereto, for the following cause, to wit, that the said matters were triable and determinable, and available to the said Lloyd, at law, and ought not to be inquired of by this court. Wherefore, and for divers other errors and imperfections, the defendant prayed the judgment of this court, whether he should be compelled to make any further or other answer to said bill, or any of the matters and things therein contained.</p> <p>To this answer the complainant excepted, the grounds assigned being — (1) That said defendant, in his answer, did not admit or deny the allegation, in the bill of the complaint contained, -that the consideration of the note first therein mentioned, being the promissory note of the said James Murray Lloyd, for $4,000, was founded on an usurious consideration, but on the contrary thereof, had wholly omitted to answer the same. (2) That said defendant, in his said answer, did not admit or deny that the other promissory note referred to in the complainant’s bill, being the promissory note of the said James Murray Lloyd, for $2,500, was founded on a gambling consideration, but on the contrary thereof, had wholly omitted to answer the same. (3) That the demurrer in said answer contained was insufficient, because — First. It contained no certificate of counsel that, in his opinion, it was well founded in point of law. Second. It was not supported by the affidavit of the defendant that it was not Interposed for delay. Third. The same was unfounded in law. The defendant afterwards supplied the affidavit to the demurrer.</p>

<p>[This was a motion for an injunction to restrain the defendants from infringing letters patent for an “improvement in bilge levers for supporting ships,” granted to John Thomas, of New York, November 0, 1826. The nature of the improvement, the claim of the patent, and the points involved in controversy are fully set forth in the judge’s decision.] 2</p>

In equity. Bill by [William W. Thomas] the assignee of a bankrupt to recover from the payee and endorser of the bankrupt’s notes sums received by him in payment of the same as a preference in fraud of the bankrupt act of 1867.

<p>Case Wo. 13,915.</p> <p>Evidence — Admissions—Partnership.</p> <p>On an issue of partnership, an offer to pay the partnership note, if the holder would take property, is evidence. And also that the defendant said the note was signed by his partner.</p>

<p>Case No. 13,917.</p> <p>Practice at Law — Security for Costs — Notice.</p> <p>The defendant may. at the trial-court, give notice to a non-resident plaintiff, that security for costs will be required, and the cause will he continued if the plaintiff is not ready to give the security.</p>

In equity. The case was as follows: On the 27th of May. 1874, [Edward] Wooldridge recovered a judgment for $4,800 against the complainants as partners, in the circuit court of the United States for the Southern district of Mississippi. Afterwards, on the 2d of June, 1874, one Hedrich, a citizen of Louisiana, brought an attachment suit in the circuit court of Warren county, Mississippi, against Wooldridge for $6,000.

This cause came up on an appeal from the district court. The schooner Thomas & Henry was libelled in the district court of Norfolk, for acting in violation of the 30th section of the act of congress, passed the 2d of March, 1799, entitled, “An act to regulate the collection of duties on imports and tonnage.” 1 Story. Laws, c. 128, § 30, 598 [1 Stat. 649, c. 22], The libel charges, 1.

Libel for damage done to schooner Fred. A. Morse.by a collision upon St.Clair Flats. The schooner Morse, of 592 tons burden, arrived off the entrance to the fiats, in tow of the tug Brockway, at 7 a. m., and lay there about two hours, waiting for the propeller Vanderbilt, then aground on the flats, to get off. As the propeller floated, she passed up the channel; and the tow supposing her bound up. entered it.

This was a libel filed by Michael Morrow and others, charterers of the schooner Thomas Jefferson, to recover damages for the alleged non-fulfilment of a charter, by which the vessel was to bring a cargo of oranges from Havana.

This case came up upon exceptions to the commissioner’s report. The action was brought to recover the damages occasioned to the libellants by the sinking of a canal-boat, laden with coal, in a collision, which occurred on the 17th of January, 18G7, in the port of New York. It appeared that the vessel, -with the coal on board, was raised on the 22d of January, and taken to the Atlantic docks.

<p>Case No. 13,925.</p> <p>Towage — Peril op tue Sea — Anchor—Evidence.</p> <p>1. The steamtug T. K. took in tow three canal-boats. loaded with coal, to tow them from Eliza-bethport. N. J., to New Haven, Connecticut. The boats were fastened together, and towed by hawsers astern of the tug. In Long Island Sound a high wind was encountered, and the tug and tow hauled in behind Charles Island, where the tug came to anchor, still holding the tow by the hawsers. The wind and sea increased, until the stock of the tug’s anchor was broken, and she began to drag. Her captain then called to the canal-boats to throw over their anchors. This was done by the captain of the middle boat. The outside boats had anchors, but they were neither of them ready for use. The anchoi of the D. which was on the starboard side, was in her bow cabin, and the only rope she had. which was fit to be used as a cable, had been used to fasten the boats together. The captain of the tug, hearing the anchor of the middle boat let go. dropped the canal-boats astern, by slacking his hawser, to allow that anchor to catch. His own boat, however, continued to drag, and after a vain endeavor to work up to his anchor, the whole tow being in danger of going ashore, he cast off the hawser, and cutting his own cable, went ahead under steam to tlie mouth of the harbor, where he remained until the storm moderated. Shortly after he cost off the hawser, the D. was found to have grounded. and she filled and sunk, she and her cargo sustaining serious loss. An insurance company which had paid the loss, filed a libel against the tug to recover the damage, field, that the fact that the owner of the D. in settling for former towage services rendered by the owners of this tug, paid bills rendered which had on them the words “At the risk of the master and owners of the boat.’’ was not sufficient to warrant the court in holding that those words formed a part of the towage contract in this case, the contract having been made not by the owner but by the master of the D. and nothing having been said on the subject when the contract was made.</p> <p>2. The contract, therefore, must be taken to lie the ordinary one of towage.</p> <p>3. A tow-boat, towing under such a contract, is not a common carrier.</p> <p>4. The breaking of the anchor of the tug was, on the evidence, a peril of the seas.</p> <p>5. The tug was properly anchored and in a proper place.</p> <p>C. The D. was not properly equipped for such navigation, in that she had not an anchor ready for use; and that she. and not the tug, was responsible for such negligence.</p> <p>7. The fact that the captain of the tug east off his hawser without giving notice to the canal-boats that he was about to do so, was immaterial. because, he had given notice to them to throw out their anchors, and the failure of the D. to do so. cast upon her the burden of the loss.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a libel in rein, tiled in the district court, against the schooner Thomas Martin, by the owners of the schooner Industry, to recover damages for a collision which took place in the Atlantic ocean, several miles off the coast of New Jersey, in the neighborhood of Great Egg Harbor, by which the Industry was run down and became a total loss.

<p>Case No. 13,927.</p> <p>Shipping — Pakol Agreement — Bill of Lading— Damage to Cargo on Deck.</p> <p>1. A canal boat was loaded full of malt for a voyage from Lyons, on the Erie canal, to New liork. She also brought 101 boxes of tobacco on deck. The tobacco was injured on the voyage by rain, and the consignees filed a libel against the canal boat to recover the damage. It appeared that for the malt a so-called bill of lading was given. It had a printed heading, stating a shipment in good order of the articles mentioned below, to be carried under deck and delivered at the place of destination stated, in like good order as addressed; and below this was an entry of the malt with address, under which was written. “Shipped by James Elmer, as above, to Emanuel Hoffman, 101 boxes of tobacco. Captain to collect, on safe delivery, 22 cents per 100 lbs., to be carried on deck under canvas.” This document was signed by the shipper of the malt, the shipper of the tobacco and the captaiD of the bo-.t. Evidence was given tending to' show that the words “to be carried on deck under canvas.” had been written in after the paper was signed by the shipper of the tobacco. and without his knowledge. It appeared that the agreement for the carriage of the tobacco was for a carriage on deck, and that the shipper saw it aboard on deck, and made himself acquainted with the method adopted to protect it from the weather, and did not suggest that this was contrary to his agreement: Held, that the contract, as to the mode of carriage of the tobacco. was in the parol agreement under which the tobacco was received on board.</p> <p>2. On the evidence, it appeared that the damage resulted merely from the carriage of the goods on deck; that all reasonable care was taken of it during the voyage: and that the manner of its stowage and protection was knowh to and assented to by the shipper.</p> <p>3. The inference was that the damage arose without fault of the carrier, and the boat was not liable.</p>

<p>Case No. 13,928.</p> <p>Admiralty— Jurisdiction in Actions between Foreigners — Laches.</p> <p>1. Jurisdiction of the defendant having been duly acquired, admiralty courts have power to entertain suits in personam and to determine the matter in controversy where the parties are foreigners of different natiooaiities.</p> <p>2. When courts of admiralty with general admiralty powers have been constituted without, any prohibition by the government against entertaining suits between foreigners, it is doubtful whether it is within che discretion of the judge of such a court to decline to hear a cause of collision arising on the high seas between vessels of different nationalities</p> <p>3. Delay in requesting the court to decline jurisdiction on the ground that the parties to the suit are foreigners, when during the period of the delay the position of the tarties has changed in any material degree, and especially by action taken in court without objection, may afford a special reason, if any is needed, for declining the application.</p> <p>[Cited in Slocum v. Western Assur. Co., 42 Fed. 236.]</p> <p>4.Where the respondent is represented by an agent in this state and has property within the territorial jurisdiction of the court which has been seized under process with an attachment clause, after which the respondent has entered a general appearance and has obtained the release of his property by giving a stipulation to abide the event, and has proceeded to take depositions de bene esse on his own behalf and has filed his answei tc the libel, joining issue upon merits, and where testimony has been also taken by the libellants, the court will not refuse to entertain the action, nor will it grant an application to forbid the further prosecution of the action on the ground that libellants and respondent are aliens, neither domiciled nor temporarily present in the United States at or since the commencement of the action.</p> <p>[NOTE. Subsequently the owners of the Great Western sought hy abandonment of the ship and freight to avoid personal liability, but the court held that since, at the time the offer to abandon was made, the title to the vessel had passed out of the respondents, they had nothing to abandon. Full damages in favor of the libellants were decreed. Case No. 13.929. They then made application for leave to tile amended answer, which was denied. Id., 13,-930. On appeal to the circuit court, it was held that the Great Western was liable for the proceeds of the wreck, amounting to $1,796.14. and gave a decree for that amount and interest, and for the costs of the libelants in this court. 12 Fed. 891. Appeal was then taken to the supreme court, where the decree of the circuit court was affirmed. 118 U. S. 520, C Sup.- Gt. 1172.]</p>

<p>[This was a libel in personam by Jens Thomassen and Julius Smith, owners of the Norwegian hark Daphne, against Mark Whit-well & Co., owners of the British steamship Great Western, for damages sustained by the hark in a collision with the steamship. The case was first heard upon application to dismiss for want of jurisdiction, on account of all parties being aliens. The application was denied. Case No. 13.928.]</p>

<p>[This was a libel in personam by Jens Thomassen and Julius Smith, owners of the Norwegian bark Daphne, against Mark Whitwell & Co., owners of the British steamship Great Western, for damages on account of collision. The case was first heard upon application to dismiss for want of jurisdiction on account of all parties being aliens. The application was denied. Case No. 13.928. The respondents claimed, upon hearing, a right to exemption from personal liability upon abandonment- of ship and freight. This was denied by the court upon the ground that they had parted with all title to the vessel before tlieir tender of abandonment, and consequently had nothing to abandon. There was a decree in favor of libellants for full damages Id. 13.929. The case is now heard upon application for leave to file amended answer.]</p>

<p>Case No. 13,931.</p> <p>Shipping — Steamboat Act — Intp.k-State Com-weuce — Penalty—Secuuitv of Passengers.</p> <p>1. A steamboat, engaged in carrying freight between New Jersey and New London. Con-neetieut, while at New London, received on board a number of persons and carried them to Mystic Island in the state of Connecticut, for the purpose of a prize fight, and then carried them to Noank, in Connecticut. She was not provided with life preservers, &e., as was required by the 5th section of the act of August 30th, 1852 (10 Stat. 61), nor had her boiler been inspected, as lequired by the 9th section of that act. A libel was filed against her, to recover a penalty of $500 therefor: Held, that the power of congress to regulate commerce among the several states extends to the waters traversed by the steamboat, but that it is requisite that the vessel which is to be subject to such regulations as those alleged to have been violated, should be engaged in inter-state or foreign commerce.</p> <p>2. This steamboat was not shown to have been so engaged, within the principles laid down in the case of The Daniel Ball (10 Wall. [77 U. S.] 557).</p> <p>[Cited in Re Long Island, etc., Transp. Co., 5 Fed. 604.]</p>

<p>Case No. 13,933.</p> <p>Peize — Evidence to Establish — Time Given.</p> <p>1. The libel charged that the vessel, while attempting to violate the blockade, was burned, and that part of her cargo was saved as prize, but no proof was giveD in support of the libel. The court allowed the libellants thirty days to produce evidence, failing which the libel to be dismissed.</p> <p>2. Where the testimony of witnesses from the delinquent vessel is dispensed with, adequate proof must be supplied, aliunde, of the delictum charged, before a condemnation will be awarded.</p>

<p>Case No. 13,932.</p> <p>Half Pilotage — Tendee.</p> <p>1. A Hell Gate pilot, on board of a vessel, claimed to have tendered his services as a pilot to a brig, which he was passing. He alleged that his services were refused, and filed a libel to recover half pilotage. His evidence of the refusal was contradicted by two witnesses from the brig: Held, that, as there were other witnesses to the alleged refusal, who were not called, nor their absence accounted for, the libellant was not entitled to a decree on such a state of the proofs.</p> <p>2. Whether such a tender of services by a pilot is sufficient to entitle him to half pilotage, quaere.</p>

Waddy Thompson was arrested for larceny and for horse stealing by the grand jury of Shelby county. There were several indictments. This writ was issued, directing his body to be brought before the judge then holding the term of the federal court. The sheriff produced the relator, and returned that he held him on the indictments.

In bankruptcy. This was an involuntary petition alleging that Thompson and Mc-Clallen committed an act of bankruptcy within six calendar months next preceding the date of filing the petition, in that they, being merchants, on the 2d day of January, 1869, suspended, and have not resumed payment of their commercial paper within the period of fourteen days, setting forth what the commercial paper was. Respondents filed a general demurrer.

In bankruptcy. Application by bankrupts for their discharge. On the 20th day of July, 1869, Wm. P. Thompson and Geo. H. McClallen were, as co-partners and individually, duly adjudged bankrupts by this court on creditors’ petition. [Case No. 13,936.] An assignee of their estate was duly elected, and the estate transferred to him.

On petition by the assignee, for an order that the bankrupt [James Thompson] pay-over to him the proceeds of a certain mortgage, negotiated by the bankrupt prior to his adjudication. Thompson was adjudicated a bankrupt upon his own petition, on the 10th of June, 1875.

<p>cited Wheeler v. McCormick [Case No. 17,490].</p>

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

<p>Case No. 13,944a.</p> <p>Practice at Law — Nonsuit—Consent op Plaintiff — When Allowed.</p> <p>1. It is erroneous to order a plaintiff to be nonsuited against his consent. TElmore v. Grymes], 1 Pet. 126 U. S.] 471; [D’Wolf v. Ra-baud] Id. 497; [Crane y. Morris] 6 Pet. [31 U. S.] 609.</p> <p>2. When nonsuit may be taken.</p> <p>NOTE. A plaintiff cannot be nonsuited against his consent, because he has a right by law to have his case submitted to a jury and the court. He may agree to a nonsuit; but, if he does not choose so to do, the court cannot compel him to submit to it. Elmore v. Grymes, 1 Pet. r20 U. S.] 471; D’Wolf v. Rabaud, 1 Pet. [26 U. SJ 497; Crane v. Morris, 6 Pet. [31 U. S.] 609; Mitchell v. New England Mar. Ins. Co., 6 Pick. 118; Booe v. Davis, 5 Blackf. 115; Martin v. Webb, 5 Ark. 74; Wells v. Gaty, 8 Mo. 681; Hunt v. Stewart, 7 Ala. 525: Scruggs v. Brackin, 4 Yerg. 528. A plaintiff may take a nonsuit at any time before the court or jury have actually rendered a verdict Lawrin v. Hawks. 3 McCord, 559; M’Lughn v. Bovard, 4 Watts. 308: Wooster v. Burr, 2 Wend. 295; Haskell v. Whitney, 12 Mass. 49, note. In Arkansas it is provided by statute that “no plaintiff shall be permitted to suffer a nonsuit on trial after the jury have retired from the bar, or the cause has been submitted to the court.” Digest, p. 813, § 111. A nonsuit cannot be ordered by the court without the acquiescence of the plaintiff. The correct practice is to instruct the jury that, if the evidence has not proven a matter necessary to be proven, the jury must find for the defendant. Martin v. W’ebb, 5 Ark. 74; Ringo v. Field. 1 Eng. [Ark.] 49; Carr v. Crain, 2 Eng. [Ark.] 249.</p>

<p>Case No. 13,947.</p>

<p>This was the case of a foreign ship, which came before the court on a claim for wages by her seamen [Thompson, Jacobson, and others], who by their contracts had engaged to return to the port from which they shipped. During the progress of the cause, the following opinion was given by the district judge.</p> <p>“An objection is made, though not very' seriously pressed, to my decision on a point, on which our own municipal laws are silent. This objection, however, obliges me to give my sentiments on the question, ‘What laws or rules shall direct or govern the decisions of maritime courts here, in points on which we have no regulations established by our own national legislature?’ There are, in most nations concerned in commerce, municipal and local laws relative to contracts with mariners, and other maritime covenants and agreements; though the great leading principles, or outlines, are in all nearly the same. On this account among others. I have avoided taking cognizance, as much as possible, of disputes in which foreign ships and seamen, are concerned. I have in general, left them to settle their differences before their own tribunals. On several occasions, I have seen it part of the contract, that the mariners should not sue in any other than their own courts; — and I consider such a contract lawful. It would be against law, and void, if it were, that the mariner should not sue in any case; or, that he should not sue in the proper court, or courts of his country. But where the voyage of a foreign ship ended here, or was broken up, and no treaty or compact designated the mode of proceeding, I have permitted suits to be prosecuted. In such cases. I have determined according to the laws of the country to which .the ship belonged, if there existed any peculiar variance or difference from those generally prevailing. I have seldom found any very material difference in principle. The laws and customs of Spain, 2 relating to mariners, are more rigid than those of other nations, on similar points. Among other points of variance from other laws, those of Spain grant the master, a lien on the ship, for his wages. In the present case, the contract was in part, with mariners of the United States; and these seamen were to be discharged in an American port. X apply the authority of this court to the case of our own citizens. If by our own municipal laws, there are rules established. our courts are bound exclusively to follow them. But in cases where no such rules are instituted, we must resort to the regulations of other maritime countries, which have stood the test of time and experience. to direct our judgments, as rules of decision. We ought not to betray so much vanity, as to take it for granted, that we could establish more salutary and useful regulations than those which have, for ages, governed the most commercial and powerful nations, and led them to wealth and greatness.</p>

<p>Case No. 13,950.</p> <p>Sale— Contract — Shipment—Carriers — Nondelivery — Measure of Damages.</p> <p>1. Under a contract for the delivery of nine •thousand tons of railroad iron, the contract is not complied with on the shipment of the iron.</p> <p>[Cited in Hobbit v. Smith, 27 Ped. 662.]</p> <p>2. Where five hundred and ninety tons of iron shipped under such a contract were lost at sea, the risk of the transportation was on the seller.</p> <p>3. In estimating the loss of the purchaser, by reason of the non-dclivery of the iron thus lost, the rule of damage is the difference between the contract price and the market value at the time and place of the delivery</p>

This was a petition for freedom [by Jo. Thompson, a negro, against Walter Clarke]. John Thompson by his will dated December 31st, 1804, devised, that if his wife should not have a child within nine months after his death, the petitioner, his slave, should be free after ten years service.

<p>[This was an action at law by Jonathan Thompson against Cook and Spalding.]</p>

<p>[This was an action by William R. Thompson against David Emmert.]</p>

This was an appeal from the decree of the district court, upon a libel filed in that court, by the appellants, for their wages, as seamen on board the Squirrel, belonging to the appellee, on a voyage from Philadelphia, to a port in France. The facts of the case were; that this vessel arrived at St. Jean de Luz, on the 14th day of March, 1813, and after discharging her cargo at that port, on the 26th of the same month, proceeded to Bayonne.

<p>[Action of covenant by Oscar D. Thompson against the corporation of Georgetown.]</p>

• [Rule to show cause why the patent granted. August 12, 1820, to John and Nicholas Haight, should not be vacated.] On the tenth day. of February, one thousand eight hundred and twenty-two, Alexander Thompson and Donald Malcolm respectively made affidavits, before Judge Van Ness, that the above mentioned pattnt had been obtained upon false suggestions.

This case was summed up with much learning and ability, by rJr. A. Emmet and Daniel Robert, for the complainants, and by J. O. Hoffman and George Griffin, for the defendants, after a long and patient trial, that consumed several days, from the great number of witnesses examined, and the various points of law collaterally involved in the controversy. [See Case No. 13,956.] We do not deem a summary of the evidence requisite. We think the opinion explains itself.

<p>[Bill in equity by James Thompson against James N. Holton, treasurer of Benton county.]</p>

<p>Case No. 13,959.</p> <p>Admiralty Practice — Right of Agent to Sue— Competency as Witness — Discharge prom Record.</p> <p>Motion to strike from the record a libelant.</p> <p>This was a motion [by Samuel W. Thompson] to strike out the name of a party libel-ant. The action was brought to enforce a bottomry bond. The papers on the motion showed that the interest in the bond was really vested in other parties than the nominal obligee, who was only their agent.</p>

Bill to charge the defendant for goods furnished to Samuel M. Brown, at the request of defendant. The plaintiffs sold the goods to Brown on the credit of the defendant. Brown is dead, insolvent; and the defendant or his agent administered on his estate. Plaintiffs heretofore filed a bill in equity to offset this demand against a judgment of Mandeville & Jamesson, and Jamesson’s answer and plea are exhibited.

<p>Case No. 13,961.</p> <p>Patents — Equivalents—Invention in Several Parts — Effect of Discontinuance of Proceedings — Acquiescence—Affidavits.</p> <p>1. A patent for “caustic alkali, encased or enveloped in a tight metallic integument or metallic casing.” having been declared valid, the sale of a substance containing caustic alkali with oil or rosin mechanically distributed through, but not in chemical union with it. and enclosed in a metallic integument, is an infringement.</p> <p>2. An averment in the bill that several re-issue patents were granted to the patentee in part imports also an averment that the invention consisted of “distinct and separate parts,” and is prima facie sustained by the exhibition of the said patents alone.</p> <p>3. The discontinuance of proceedings against a respondent for an infringement does not estop the complainant from bringing a second suit; there was no adjudication of any sort upon the merits.</p> <p>4. The mere discontinuance of a suit, and fqr-bearance to sue any of the parties thereto for the period of a year or more thereafter, are not to be construed into an acquiescence in the infringement complained of.</p> <p>5. The affidavit annexed to the bill, that the patentee was the original and first inventor of the thing patented, can be made by the as-signee of the patent as well as by the patentee himself.</p> <p>[For other cases involving this patent, see note to Pennsylvania Salt Co. v. Gugenheim, Case No. 10.954.]</p>

The bill, in this care, states the intermarriage of the plaintiffs in 1812, or 1813, the wife being tbe daughter of George King, who was then universally supposed to be wealthy, and was seized of a house and lot in Cecil alley, in Georgetown, which was very much out of repair, and which the ■ plaintiff Josiah, at the request of the said George King, who said he always intended that property for his daughter, (the plaintiff,) repaired, at the expense of $4,000, and occupied…

The bill in equity in this case was filed in 1826, by Josiah Thompson and his wife, against the heirs of George King, to obtain the conveyance of a house and lot in Georgetown, in execution of an agreement between Thompson and G. King, in the lifetime of the latter; or that the cost of the improvements made by Thompson, in expectation of obtaining the title, should be decreed to be a specific lien on the lot, George King having died insolvent.

Action at law. Heard on demurrer to'replications. This suit was brought upon a.policy of insurance, dated January 24, 1870, whereby the Knickerbocker Life Insurance Company, in consideration of the sum of $410 paid in hand by Ruth E. Thompson, and a like sum to be paid by her on or before the 24th of January, in every year, during the continuance of the policy, did insure the life of John X. Thompson, in the sum of $5,000, for the benefit of said Ruth E. Thompson, his wife.

Assumpsit [by Lena Thompson and others] upon a policy of lire insurance to recover damages for the burning of a dwelling and barn. Plea, non-assumpsit with brief statement. setting out a non-compliance by the assured with the conditions of the policy. The cause was heard by the court without a jury. Proof of loss was duly and reasonably made after the fire, and 'specific objections were made to it by the insurance company.

<p>Case No. 13,965.</p> <p>Arkest — District of Columbia.</p> <p>An inhabitant of Alexandria county may be arrested in Washington county without a non est in Alexandria county.</p>

Suit brought [by George Thompson and the Pennsylvania Salt Company against Samuel Mendelsohn] upon letters patent [No. 15,957] for “improvement in devices for putting up caustic alkalies.” granted to George Thompson, and more particularly referred to in the reports of the cases of Pennsylvania Salt Co. v. Gugenheim [Case No. 10.954], and Pennsylvania Salt Co. v. Thomas [Id. 10,956].

<p>Case No. 13,971.</p> <p>Seamen — Shipping Articles — Parol Agreement —Completion ov Voyage — Wages as Compensation. -■ ■</p> <p>1. Shipping articles described the voyage to be from Boston to one or more ports south, thence to one or more ports in Europe, and back to a port of discharge in the United States: Held, that the description was sufficiently certain to bind the parties to the performance of the voyage.</p> <p>2. A parol understanding that the vessel was not to complete the voyage described in the shipping articles, is not admissible.</p> <p>3. Inability to obtain freight is not such a necessity as absolves the owner from his contract to perform the voyage described in the articles.</p> <p>4. Where owners refused to perform the voyage to Europe, and the ship returned with the seamen on board to the home port, a sum equal to one month’s wages was allowed to each seaman as compensation for the loss of the voyage to Europe.</p>

Assumpsit on the money counts. Plea, the general issue. The case at the trial was this. The plaintiff [Edward Thompson], a merchant of Philadelphia, consigned goods to Messrs. Wins-low, Channing & Co. who were auctioneers in Boston, for sale. Messrs. Winslow, Chan-ning & Co. accordingly sold the same, and took negotiable promissory notes, payable on time, in their own names, for the amount of the sales.

A sum of money, said to be due to a seaman for wages, was withheld as a penalty for not rendering himself on board, agreeably to act of congress, at the hour appointed. A seaman, one of the crew, who was involved with the present complainant, in a controversy with the owners, by an entry in the logbook. for neglect to render himself on board, was offered as a witness by the complainant's counsel.

This was an action of ejectment for a house and lot in Philadelphia. Held: to the same extent to which he could convey it voluntarily; the power of the sheriff is made precisely what tte power of the defendant was, when the judgment was rendered, which put the sheriff, by operation of law, in his place for the purposes of a sale, but gave him no power to divest a prior lien.

<p>Case No. 13,975.</p> <p>Contempt — Actions Against Receivers — How Proceeded with.</p> <p>1. A person who brings an action in one court, against a receiver appointed by another court, without the consent of the court who appointed the receiver, is guilty of a contempt of the latter court: and this is so although such action may not result in disturbing the possession of the receiver. This doctrine applies with peculiar force to cases where suits are brought in the state courts against receivers appointed by the federal courts, in suits brought by citizens of other states to foreclose railway mortgages. The doctrine adopted by the supreme court of Iowa in Allen v Central R. Co., 42 Iowa, 683. and by the supreme court of Wisconsin in Kinney v. Crocker, 18 Wis. 75, denied.</p> <p>[Cited in Kennedy v. Indianapolis, C. & L. R. Co.. 3 Fed. 100. Distinguished in The Willamette Valley, 62 Fed. 305. Cited in Texas & P. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 907: Otis v. Gross. 96 Ill. 614; Walker v. Geo. Taylor Commission Co. (Ark.) 18 S. W. 1057 Cited m brief in Town of Rox-bury v. Central Vt. R. Co., 60 Vt. 130, 14 Atl. 92.]</p> <p>2. In such cases, the proper practice is for the person having a demand against the funds in the hands of the receiver, to bring his demand into the court appointing the receiver, and the court will direct him to be examined, pro inter-esse sno. before the master, and if, upon auditing his claim, tbe court finds it to be a just one, it will direct the receiver to pay it without litigation. but if the court finds the claim to be a doubtful one, it will give tbe claimant leave to prosecute it before some competent court — consulting herein the convenience of parties and exercising a judicial discretion.</p> <p>[Cited in Re Cunningham, Case No. 3,478.]</p>

<p>Case .No. 13,976.</p> <p>Practice in Equity — Master’s Report — Oath-Reference — Accounts—Copies.</p> <p>1. It is no ground for setting aside a master’s report, in a suit in chancery, that he was not sworn; there being no statute of the United States, or any rule of court, requiring a master’s report to be under oath.</p> <p>2. It is competent for the court, in the order of reference, to require the master to be sworn, but if not specially so ordered, it is no objection to the report that he was not sworn.</p> <p>3. The authority to refer to a master is inherent in a court of the United States, in the exercise of its chancery jurisdiction.</p> <p>4. There is no reason for requiring an oath, where the judge or court ordering the reference has personal knowledge of the integrity and intelligence of the person appointed.</p> <p>5. The master did not err in admitting copies of accounts and papers from the office of the quartermaster-general of the United States, properly authenticated as true copies by the third auditor of the treasury, whose official character was certified to, in proper form, by the secretary of the treasury, as the act of congress expressly provides that copies so verified shall be admissible as evidence in the courts.</p>

<p>Case No. 13,977.</p> <p>Writ op Assistance — Against Whom Issued — Parti es to Suit — Void Title.</p> <p>The power of a court of chancery to put the purchaser of the mortgaged premises into possession by a writ of assistance, or summary proceedings, extends only to the parties to the suit and those coming in under them after suit commenced, and does not extend to the case of the wife of the mortgagor, not a party to the suit, claiming under color of title acquired from one of the defendants before suit brought, although such title may be void or inoperative, by statute.</p>

This case was argued at the last term, and was kept under advisement, until the present term, when the following opinion was delivered:

[This was an action by Thompson & V.eiteh against Nicholas Voss.] Fieri facias. Motion to quash the execution, on the ground that a writ of error had issued, and the plaintiffs had joined in error at the supreme court. The judgment below was signed on the 27th of March, 1802, and the execution was, by consent, stayed two months, before the expiration of which time viz., on the 19th of May. the writ of error was filed; and bond given and citation issued.

[This was a bill in equity by John A. Thomson. assignee, against Chandler Bradford and others.] The petition, which was filed on the 30th day of April, 1874, recites a previous order of court made in Re Joshua Shipp, in bankruptcy, for the sale of certain lands of Shipp, freed of a mortgage to Harvey Lewis, and alleges that all the lands had been sold except one parcel, in which Chandler Bradford claimed an interest, which was a cloud on the title.

In equity. This was a suit [by William S. Thomson, Charles H. Langdon, and George C. Bateheller against Solomon L. Jacobs, Abraham Strouse, Rebecca Mayer, and Max Adler], brought under reissue No. 6,100, granted to the assignees, Thomson, Langdon & Co., October 27, 1874, for ‘’improvements in corsets.” [The original letters patent No. 97,418 were granted November 30, 1869.] The corset is known to the trade as “Thomson's Glove-Fitting Corset.”

This was an action of assumpsit [by Thomas Thomson and others] against [Hugh Maxwell] the defendant, as collector of the port of New-York, to recover back certain duties and penalties paid by the plaintiffs on two importations of shawls from Liverpool, consigned to them for sale under guaranty by Whitehill & Co., of Paisley, Scotland, the manufacturers and owners of the shawls.

[These were libels for wages by John Thomson and others against the ship Nanny, John Ainsworth, master, and Frederic Ferguson and others against the Jack Park, James Remsen, master.]

[Appeal from the district court of the United States for the district of Virginia.] This was a libel against the schooner Patriot, a British vessel, and her cargo, owned partly by a British subject, and partly by citizens of the United States, which arrived in the Chesapeake Bay, in June 1812, three days after the declaration of war, between the United States and Great Britain, from the island of Guadaloupe, a British colony, contrary to the several acts of congress, to…

The plaintiff [William B. Thornburgh] claimed to be the owner of a portion of a certain quartz ledge in Storey county. Nevada, called the “Mitchell Lode,” and had commenced an action at law for the possession thereof, claiming that said lode was distinct from, but next adjacent to. the Com-stock lode.

[Error to the district court of the United States for the district of Massachusetts.] At the March term of the district court of the district of Massachusetts, 1819, the district attorney brought an… Held: that it was payable on the day of the date; and that interest was payable from that time, though not expressly reserved and though no request proved. In Marshall v. Poole, 13 East. 98.

<p>Case No. 13,988.</p> <p>Adm i ua.lty — Costs — How Aw arded — Statute— Proctor’s Costs.</p> <p>[Cited in U. S. v. One Package Ready-Made Clothing, Case No. 15.950, to the point that the act of 1853 excludes all costs to officers o'f the court which are not specifically appointed by the statute.]</p>

A seaman cited the master, to shew cause why process should not issue against the ship, for wages. 2 Cause shewn. That the mariner, who had conducted himself well, in other respects, during the whole voyage had a difference with the captain, in the river Delaware, on the ship's return. A quarrel ensued, and blows passed. The master began the affray, with violence and intemperate passion.

<p>[These were suits by John Thornhill and others and Sarah Williams and others against the Bank of Louisiana.]</p>

<p>In bankruptcy.</p>

This was a petition addressed to the supervisory jurisdiction of the circuit judge under the second section of the general bankrupt act, to review a decision of the district court for the district of Louisiana. It was heard in chambers at Mobile, in the state of Alabama, on the 31st of January, 1870. The point was made, among others, that the circuit judge was without jurisdiction to hear the cause out of the district of Louisiana.

<p>In bankruptcy.</p>

The following question arose and was stated and agreed to by John W. Hinsdale, Esq., attorney for Hess, Rogers & Chambers, creditors of said bankrupt, and B. & T. C. Puller, Esqs., attorneys for the bankrupt, viz.: “Should an assignee in bankruptcy, in case there is a deficiency of personal property, allot to the bankrupt an exemption in real estate under section fourteen of the bankrupt act of 18677 In other words, does the bankrupt act give to an assignee the discretionary…

<p>Case No. 13,995.</p> <p>Collision- — In a Dock — Vessel Hauling Out — Lines.</p> <p>Where a schooner, coining intoa slip, was made fast by lines to a ship, by the permission of those in charge of the ship, and thereafter the ship desired to leave the slip, and those in charge of the schooner were requested to cast off the lines, and, all parties supposing that they were cast off, the ship was hauled out by a tug, and,' in being hauled out. came in contact with and injured the schooner, which collision the schooner claimed to have been caused by the ship’s being allowed to fall upon the schooner with the tide, and the ship claimed to have been caused by a line which should have been cast off but was not, and which pulled the schooner towards the ship: Held, that, in either case, the ship was liable for the collision. It was the duty of the moving vessel to be certain that all the lines were unfastened before she began to move.</p>

Assumpsit [by Thornton and White, commissioners of the city of Washington] against [Caldwell, administrator of Scott] the indorser of a promissory note payable 4th February, 1801, drawn by U. Forrest for six thousand two hundred and sixty-nine dollars and ninety-two cents. asked the witness whether he had the note and called on General F. for payment on the 9th of February, 1801.

Assumpsit, against the maker of a promissory note, indorsed by Bazil Wood, as surety, and given to the plaintiffs [Thornton & White, commissioners of the city of Washington], to secure the purchase-money of lots No. 1 and 2, in the square No. 107, in the city of Washington, dated August 6, 1800.

Assumpsit [by Thornton, surviving commissioner, against Stoddert] upon an indorsement of a promissory note drawn by U. Forrest, for $10,407, due 4-7th of February', 1801, dated 6th of August, 1800. The writ issued 23d of April, 1803. offered Mr. Thomas Munroe, as a witness..

In this case, objections were made by True, the only creditor who had proved a debt, to the allowance of some of the charges of the assignee for his personal services; and he also asked, in his petition, that the assignee might be charged with interest on the amount in his hands, from the time that the money was received until it was paid into the registry. The ease was submitted, without argument, on the statement of the assignee.

<p>Case No. 14,003.</p> <p>Collision — River Navigation — Rules—Ascending and Descending Boats — Crossing Channel — Damages.</p> <p>1. The second rule of navigation adopted by the board of supervising inspectors, under the steamboat law of 1852 [10 Stat. 61], giving an ascending boat the right to choose the side she prefers to take, when meeting a.down boat, must have a reasonable construction, and can not be understood as giving the up-stream boat a right under all circumstances of choosing her line of navigation.</p> <p>[Cited in The Marshall, 12 Fed. 922.]</p> <p>2. If an ascending boat is coming up on one shore, and a down boat is seen above on the opposite side, the river being wide, with an ample depth of water in the intervening distance between the boats, and the up-stream boat is not required for business purposes to make a crossing, she ought by one sound of the whistle to signify her purpose of keeping up the same side. She has no right unnecessarily or capriciously to require the descending boat to change her course.</p> <p>3. It is a sound rule of navigation applicable to the western rivers, recognized by courts exercising admiralty jurisdiction, that an ascending boat should not cross a channel when a descending boat is so near that it would be possible for a collision to occur.</p> <p>4. A descending boat has a right to the channel of the river, and, while in her proper place, it is the duty of the ascending boat so to regulate her movements as to keep out of the way.</p> <p>5. It is a great error, and one which must always incur hazard of a collision, for an ascending boat to attempt to cross the bow or in front of the descending boat unless the distance between them is such as to exclude the possibility of their coming in contact.</p> <p>6. An up-stream boat, wishing to cross a channel when a boat is coming down, must either slacken- her speed or stop altogether until the down boat has passed, and this rule is not affected by the fact that the signals between the boats give the ascending boat the choice of sides; for it is a paramount rule of navigation that, if possible. collisions must be avoided, and an error by one boat will not justify another in running into her unless it was unavoidable.</p> <p>7. If a mutual fault occasions a collision, the damages for the injury must be divided between the boats; but if the fault was wholly on one side, the culpable boat must bear the entire loss.</p>

<p>Case No. 14,004.</p> <p>Collision — Liability op Part Owner Actisg as Master.</p> <p>[A suit brought against a part owner of a vessel, who is a charterer and the owner for the voyage, although acting in the capacity of master. is barred by the act of March 3, 1851 (9 Stat. 636), which exempts owners of vessels from personal liability for damages arising out of a collision.]</p>

This was an action to recover back the difference between 20 per cent, ad valorem, and 30 per cent., which latter rate was exacted by the defendant [Cornelius W. Lawrence], as collector of the port of New-York, for duties on certain goods imported by the plaintiffs [Andrew Thorp and others], into that port and which they claimed were liable to a duty of only 20 per cent.

<p>Case XsTo.14,008.</p> <p>Equity — Paktnekship in Real Estate — Bank-kuptcy of Individual Paktneh.</p> <p>1. Three parties bought real estate to sell «.gain, sold some lots and built on others, incurring debts therefor, and then two of them bought out the third and took the ownership of the property for the same purpose. Thereafter C., one of the two, having gone into bankruptcy, T-, the other, applied to the court for relief, and «djustment of rights in the property, as between him and the assignee of the bankrupt: Eeld, that this was a partnership adventure, and the orator and' the assignee of the bankrupt held the same title, subject to the same rights and liabilities;</p> <p>2. It was necessary to adjust the partnership •dealings up to the time of the bankruptcy of C., and ascertain the exact interest of each at that time in the real estate;</p> <p>3. T. would be protected as to the debts for which he was liable under the partnership, as against creditors of the bankrupt individually.</p>

<p>Case No. 14,009.</p> <p>Shipping — Coasting and Pishing Act — “Foreign Vovage” — Pishing Voyage.</p> <p>A “foreign voyage,” within the meaning.of the 8th section of the coasting and fishing act, 18th February, 1793, c. 8 [1 Stat. 308], where a vessel departs from the United States for a foreign port with an intent there to engage in trade; and not merely a voyage to a foreign port within the usual voyage of vessels licensed for the fisheries.</p> <p>[Cited in The Swallow, Case No. 13.666; The Nymph. Id. 10.388; Taber v. U. S-, Id. 13,-722; The Willie G.. Id. 17,762; The Ocean Bride, Id. 10.404; The Ocean Spray, Id. 10,-412.]</p> <p>[See The Atlantic, Case No. 621.]</p> <p>[Cited in Simpson v. Story, 145 Mass. 499, 14 N. E. 642.]</p>

This was an appeal from a decree of the district court in a suit in rem, in admiralty. The decision of the district court (SHIP-MAN, District Judge), was as follows: “The New Haven and Northampton Company is a railroad corporation duly incorporated by the legislature of the state of Connecticut, and owning and operating a line of railroad, for the transportation of persons and goods, from New Haven, Connecticut, to Northampton, Massachusetts.

<p>Case No. 14,011.</p> <p>Charter-Party — Demurrage—Master’s Refusal to Sjgn Bills of Lading.</p> <p>1. The owners of a vessel filed a libel against a cargo of guano, which had been brought in her, from Surrano Cay to New York, under a charter-party, to. recover for demurrage in loading her and in discharging, and to recover passage money, agreed in the charter to be paid by the charterer. Detention of the vessel in loading beyond the specified time was admitted, but the charterer claimed that it was caused by the master of the vessel, in that he, without cause, when she was. partly loaded, changed the place of anchorage of the vessel to a greater distance from the spot where her cargo of guano was being loaded. On the arrival of the vessel in New York, the master refused, for several days, to sign bills of lading for the cargo, because the charterer would not admit the claim for demur-rage in loading. The charterer also refused to pay the passage money, on the ground that the fare was so bad as to constitute a breach of the contract: Held, that, on the evidence, the master was entitled to the presumption that he knew best where his vessel should anchor, and that his moving of his vessel was not, therefore, a de-fence to the claim for demurrage in loading.</p> <p>T2. Cited in Johanssen v. The Eloína, 4 Fed. 575, as a case in which demurrage was allowed without interest.]</p> <p>3. The master was not justified in refusing to sign the bills of lading, and the owners could not, therefore, claim demurrage during the time of such refusal.</p> <p>4. On the evidence, the fare was sufficient to entitle the owners to the passage money.</p>

<p>This was one of several actions brought in behalf of the government to forfeit quantities of-champagne wine, imported into this country by several manufacturers of it in France. The -claimants in this case" were [Alexandre] de St. Marceaux & Co., of Rheims. The libel of information alleged undervaluation in the invoices as ground of forfeiture, under the fourth section of the act of May 28, 1830 (4 Stat. 410), and the first section of the • act of March 3, 1S63 (12 Stat. 737). These wines had been imported into this country by the samé men for years, during which time there had'been several examinations at the custom house as to the correctness of the values stated in the invoices. The values stated in the invoices in question were the same as had been for' several years passed at the custom house as correct for the same articles. The treasury department having sent agents over to France to inquire into the wine trade, received information which led to these seizures, and similar seizures were made in New Orleans, San Francisco, and Boston. The result of the San Francisco cases will be found reported in 3 Wall. [70 U. S.] 114. The testimony in the case was very voluminous, the case having occupied about three weeks in the trial. The judge has stated in his charge all of it that is material to the understanding of the case. In the course of the trial, the government called the deputy collector at New York, before whom the oaths were taken on the importations in question, and, having first proved by him the invoices in question, and that he recognized a similarity in -the signature of the claimants on all of the invoices which had come before him, but that he had never seen any of them write, offered to prove by the witness that certain invoices, not of the goods in question, were signed by these claimants.</p> <p>Mr. Evarts, in behalf of the government, cited the following authorities in favor of the admission of the evidence: Van Wyck v. McIntosh, 14 N. Y. 442; Doe v. Newton, 5 Adol. & E. 514; 2 Phil. Ev. 601, 615; Johnson v. Daverne, 19 Johns. 135: Jackson v. Murray, 7 Johns. 5; Titford v. Knott, 2 Johns. Cas. 214; 1 Greenl. Ev. §§ 577, 578; Brigham v. Peters, 1 Gray. 145; Amherst Bank v. Root, 2 Mete. (Mass.) 532. The court said that the case could not be distinguished from that in 2 Metcalf; that there was on the invoice a declaration in French, beginning: “I, the subscriber, declare that I am a member of the firm of de St. Marceaux 6 Co.,” which went on to speak of the wines, and then there followed the certificate of the consul that the invoice was produced to him by the subscriber, and that he was the person he represented himself to be; and that, as this matter came before the witness in an official capacity in the custom house, the case came within the rule in 2 Metcalf, and the testimony was admissible. ■ The claimants, on the trial, -offered in evidence the appraisement filed in the case by appraisers appointed to appraise the goods for the purpose of bonding them. but. being objected to by the government, it was rejected by the court. The claimants called a witness who had purchased some of -the wines of de St. Marceaux A Co. from their agent in New York at about the time in question (1864), and proposed to prove the transaction as evidence of market value, but the evidence, under the objection of the government, was excluded by the court. The government offered, in evidence certain letters from other manufacturers of wine tending to show the real value of their wines. The claimants objected to the evidence, and, in support of its. admissibility, Mr. Evarts cited the Clicquot Case, 3 Wall. [70 TJ. S.] 114. The court held that the letters were competent under the ruling in that case, leaving it to the jury to consider whether the wines referred to in the letters were substantially of the same quality and grade as the wines under seizure.</p>

<p>Case No. 14,014.</p> <p>Shipping — Possession—Jurisdiction — Maritime Tort — Absence op Bill op Sale — Enrollment — Costs.</p> <p>1. A. E. S. being the owner of a sloop, which had never been enrolled or registered, sold her to T. Part of the purchase money was paid; and it was agreed that A. E. ¡3., who had no bill of sale for the sloop, should procure one from her former owner, and should then give one to T., who should then give him a mortgage on her for $200. T. took possession of the sloop and ran her for nearly a year, during which timé she was repaired and altered under the direction of T. by A. E. S., who was a ship-builder, materials belonging to T. being put into her. A. E. S. obtained his bill zt sale but never'tendered one to T., nor demanded the mortgage. Nearly a year after the sale, A. E. S. forcibly took possession of the sloop while on navigable waters,- and thereafter sold her to H. who put A. S. in charge of her, as master. T. filed a libel to recover possession: Eeld, that the court had jurisdiction of the action, although T. had no bill of -sale.</p> <p>[Cited in Wenberg v. A Cargo of Mineral Phosphate, 15 Fed. 287; Haller v. Fox, -51 Fed. 299.]</p> <p>2. That the sale by A. E. R. to T. was not conditional, but, if it were, the condition had been waived by the acts of the parties.</p> <p>3. That, as the vessel was never enrolled or registered, the provisions of § 4192 of the Revised Statu i es of the United States were not applicahle.</p> <p>4. That the forcible taking possession of the vessel by A. E. S. was a -maritime tort, and gave him no title and that, having none himself. he could convey none to H.</p> <p>5. That cne mode of .edressing the tort committed by A. E. S. was to reinstate the libellant in the possession oi his vessel; and that, therefore, the subject of the action was maritime, and none the less so. because A. B. S. had passed the property to a third party.</p> <p>6. That, if the question were simply one of title, the jurisdiction of the admiralty would still attacn.</p> <p>7. That the libellant must therefore have a decree for the possession of the vessel, with costs against H. alone and that, as no decree for damages was asked against A. B. S., and he was not in possession of the vessel at the time, the libel, as against him, would be dismissed without costs.</p> <p>The case of The John Jay. 17 How. [58 U. R.] 399, distinguished. But see the case of Hill v. The Amelia [Case No. 6.487], which was affirmed by the circuit court fsee Case No. 275].</p> <p>[Cited in The Daisy, 29 Fed. 301.]</p>

<p>Case No. 14,015.</p> <p>Mexican Land Grant — Coclaimants — Rights inter Sese — Against United States.</p> <p>Where one of two persons to. whom a grant was made has exhibited a deed from his co-grantee. and obtained a confirmation of his claim to the whole tract, the cograntee -who has presented his separate claim for his half, and who denies the execution of the deed, is entitled , to a confirmation as against the United States, and the rights of the parties inter sese will be left to be determined by the ordinary tribunals.</p>

At law. This cause came before the court on the following- case, stated by the counsel, Mr. Condy, for the plaintiff, and Mr. Ingersoll, for the defendant. “On the 13th of October, 1796, William I. Vredenburgh,-of the city of New York, merchant,' caused himself to be insured, at the city of New York, in a certain policy of insurance, which was subscribed by the plaintiff in the sum of 814,500, upon any kind of goods and- merchandize, laden or to be laden, on board the…

<p>Case No. 14,017.</p> <p>Principal and Agent — Power to Sell — Confirmation — Sale on Credit — Prior Suit Pending — Admiralty Jurisdiction — Proceeds.</p> <p>1. A letter from a pait owner of a steamboat requesting the person addressed to advertise the interest of the writer for sale, and in thus advertising to act as his agent, confers no authority to sell, and a sale under it is a nullity.</p> <p>2. If such part owner, with a knowledge of the terms of the sale, and with due deliberation adopts and affirms it, it is obligatory on him to the extent of his interest, and he can not afterward disaffirm the ratification.</p> <p>■ 3. A power of attorney is not operative' till received and accepted by the agent, and a power to sell for cash does not authorize a sale on credit.</p> <p>4. The pendency of a proceeding in replevin, in a state court, by which a party claiming to be a part owner of a steamboat has obtained the possession of the boat, does not affect the jurisdiction of a court of admiralty in a proceeding by libel, in which all the parties in interest are before it.</p> <p>5. A plea of a prior suit pending is not sustainable, without the averment and proof that the cases are between the same parties and for the same cause of action.</p> <p>6. The proceeds of the sale of a boat will be ordered to be brought into the registry of the court, to be apportioned among the parties according to their respective interests, as found and adjudged by the court.</p>

This was an action of trespass for false imprisonment, brought [by Joseph Thurston] against the defendant [Joseph Martin], who was collector of taxes for the town of Newport, R. I. The defendant pleaded not guilty, with leave to give special matter in evidence. At the trial it was proved, that the defendant had arrested and imprisoned the plaintiff for the non-payment of a town tax, assessed on him for the year 1827, and that he was discharged upon payment of the tax.

It- was alleged, and not denied, that plaintiff had purchased from the road, for fifty cents, a ticket for crossing the river on the transfer train, and that when the train was about starting he attempted to board it, but was prevented. He also purchased, for ninety cents, from the company, a ticket good on another road, but was forcibly ejected from the train, and obliged to remain in Omaha several days before he could safely get away, for which he asked $5,000 damages.

<p>Case No. 14,020.</p> <p>Equity — Rescission of Contract — Abandonment — Husband and Wife.</p> <p>1. Tibbatts and wife entered into a contract with defendant, by which he was put in possession of a large farm, containing stock of various kinds to be managed by him, one third of the profits to be his, the other two thirds to be paid to the other party. Soon after entering into the possession, he, Tibbatts, sold the stock on the farm, and the implements of agriculture, and leased the farm, reserving to himself the homestead and a small part of the ground. The defendant became insolvent and unable to pay the money he had received on the sale of the property. The court held, that this was an entire abandonment of the contract, and that the wife of Tibbatts, who owned the land, might claim the possession of it. By the contract, Leo Tibbatts, was to have the sole management of the farm, &c., which was a special trust and confidence, he could not transfer to another. Any modification of the written contract Tib-batts may have made to the injury of his wife, and to which she gave no consent, did not bind her after his death.</p> <p>[Cited in Irwin v. Bidwell, 72 Pa. St. 251; Schofield v. Jones (Ga.) 11 S. E. 1034.]</p> <p>2. The contract was decreed to be cancelled and the possession of the premises to be restored to the complainant.</p>

Assumpsit [by James H. Tidmarsh] on a policy of insurance, dated the 13th of October, 1S2U, of “$1000 on property on board schooner Emily, at and from Bahia to Halifax,’’ by P. R. Dalton for James H. Tid-marsh. The declaration averred a total loss by perils of +he sea and shipwreck on the 23d of November, 1826. Plea, the general issue.

■ Assumpsit for goods sold and delivered. [For former proceedings, see Case No. 14,-022.] On the trial of the issue of non as-sumpsit, Mr. Mason, for defendant, moved the court to instruct the jury that they must be satisfied that the contract was made with the plaintiffs, William P. Tibbs and Thomas Blanc.

Rule on plaintiff [Luke Tiernan] to show his cause of action, and why the defendant [Robert Andrews] should not be discharged on common bail. showed cause, by reading the plaintiff’s affidavit, which states, that the defendant is justly indebted to him in the sum of $5,500, for so much money paid for his use, at the request of John Andrews, the defendant’s agent.

This was an action of assumpsit [by Luke Tiernan against Robert Andrews] for money laid out, and advanced for the defendant at his request.

<p>[This was an action of assumpsit by Tier-nan’s executors against James Woodruff.]</p>

<p>[This was an action of assumpsit by Tier-nan’s executors against James Woodruff.]</p>

<p>[In the matter of Alanson H. Tifift. a bankrupt. For prior proceedings in this litigation, see Cases Nos. 14.030.14,031, and 14,036.]</p>

[In the matter of Alanson H. Tifft, a bankrupt.] This is an adjourned composition meeting for the purpose of examining the bankrupt, appointed to be held at 11 o’clock a. m. Mr. A. O. Aubrey was present as counsel for the debtor; Mr. Louis Henry as a creditor. Mr. C. H. Phelps does not appear at 11:20. Mr. Henry calls the debtor for further examination.

<p>[In the matter of Alanson H. TifEt, a bankrupt See Cases Nos. 14,030 and 14,036.].</p>

<p>[In the matter of Alanson H. Tifft, a bankrupt. See Cases Nos. 14,036, 14,030, 14,031, and 14,029.]</p>

<p>[In the matter of Alanson H. Tifft, a bankrupt. For prior proceedings in this litigation, see Cases Nos. 14,029-14,033, 14,035,. and 14,036.]</p>

<p>[This was a bill by Alanson H. Tifft against the Iron Clad Manufacturing Company and Bernard Reilly, sheriff of the city and county of New York. See Cases Nos. 14,-036. 14.030,. 14.031, 14,020, and 14.033.]</p>

<p>[In the matter of Alanson H. Tift, a bankrupt.)</p>

This was the case of a libel, filed on the 15th of January last, by H. J. Matson, of’ the kingdom of Great Britain and Ireland, lieutenant in the navy of her Britannic majesty, and commander of her Britannic majesty’s brig Water Witch, prosecuting as well for the United States as for himself, against the brig Tigris, of Salem, in this district, and the goods and effects on board said vessel, for a forfeiture of the vessel and her lading for certain alleged violations, on the…

<p>Case No. 14,038a.</p> <p>Equity — Adequate Remedy at Law — Bill to Enforce Money Decree.</p> <p>A bill m chancery is not the proper remedy to enforce a decree in chancery for the payment of money, the remedy at law being adequate and .complete.</p>

<p>Case No. 14,039.</p> <p>Patent — Infbingement— Defences— License— Contbact.</p> <p>In a suit brought for the infringement of a patent, an answer to the bill, alleging a license from the complainant to practise the invention, raises a perfect defence, and where the license is proved the bill must be dismissed. The court will not decree the relief prayed for as the result of an inquiry touching the fulfilment or non-fulfilment, of the contract.</p> <p>[Cited in Kelly t. Porter, 17 Fed. 523.]</p> <p>[This was a bill in equity by Benjamin C. Tilghman against Thomas R. Hartell and others, for the infringement of letters patent No. 108,408, granted complainant October 18, 1870. See Case No. 14,040.]</p> <p>[On appeal to the supreme court the above decree was reversed. 99 U. S. 547.]</p> <p>[For another ease involving this patent, see Tilghman v. Morse, Case No. 14,044.]</p>

[This was a bill in equity' by Richard A. Tilghman against Roland G. Mitchell.] Motion upon exceptions to the report of the master in the case of Tilghman v. Mitchell [Case No. 14,043].2

[This was a motion for a provisional injunction to restrain the defendant Roland G. Mitchell from infringing letters patent [No. 11,760] for an “improvement in processes for purifying fatty bodies,” granted to complainant Richard A. Tilghman, October S, 1854. for fourteen years from January 9, 1834, the date of a prior English patent, and extended November 23, 1S07, for seven years from January 9, 1868.

This was a bill in equity, filed [by Richard A. Tilghman] to restrain the defendant [Roland G. Mitchell] from infringing letters patent [No. 11,766] granted for an “improvement in processes for purifying fatty bodies,” granted to complainant October 3, 1854. The claims, and a portion of the specification, will be found in the report of the case of Tilgh-man v. Werk [Case No. 14,046].

[This was a bill in equity by Benjamin C. Tilghman against George F. Morse.] [Motion for provisional injunction. Suit brought upon letters patent [No. 108,408] for an “improvement in cutting and engraving stone, metal, glass,” etc., granted to complainant October 18, 1870.] 2

This case arose on a bill filed by the complainants, who were legatees under the will of the late Chief Justice Tilghman., against JB. S. Burd and Benjamin Chew, Jr., Esquires, his executors, praying for an account of his estate and ■ payment of their legacies out of the surplus. Separate answers were filed by the executors, Mr. Burd admitting a balance on hand for distribution among the legatees, Mr. Chew claiming a right to retain it for a debt due him by the testator.

This was a bill in equity, filed to restrain the defendant [Michael Werk] from infringing letters patent [No. 11,766], granted to the complainant [Richard A. Tilghman], October 3,1854, for an “improvement in processes for purifying fatty bodies.” The nature of the invention will appear from the following extracts from the specification: “My invention consists of a process for producing free fat acids and solution of glycerine from those fatty and oily bodies of animal and…

<p>Case No. 14,048.</p> <p>Collision — Long Island Sound — Tug and Tow— False Log — Fabricated- Evidence.</p> <p>1. A tug was taking a tow of canal-boats through Long Island Sound eastward, and was overtaken by the propeller T. just after sundown March 24th, 1873. The T. struck one of the boats in the second tier of the tow, causing damage for which the owner of the boat brought suit against the propeller. No fault was alleged against the canal-boat; but, in defence, the T. set up an extreme darkness of the night, and her master, when examined as a witness, produced a log-book, purporting to have been kept by him, to show it and also the time of the collision. Held, that, upon the evidence, the log-book must be thrown out as fabricated, and with it the testimony it was brought to support; and, no other sufficient defence apnearing, the boat was entitled to recover against the propeller.</p> <p>2. A proved fabrication of evidence, unexplained, will compel an adverse decree.</p> <p>[On appeal to the circuit court, the above decree was affirmed. Case No. 14,049.]</p>

<p>Case No. 14,049.</p> <p>Estoppel — Husband and Wife — Collision— Lookout — Lights.</p> <p>1. A canal-boat, wholly owned by a married woman, was injured in a collision with a steam-tug. Her husband filed a libel in rem, in his own name, as owner, against the tug, to recover the damages sustained. At the time of the collision, and thereafter, the libellant and his wife resided in New York. On the trial, the wife testified as a witness for the libellant, and gave material evidence to sustain his claim for damages. It was shown that, in fact, the action was brought by and with the assent of the wife: Held, that the wife would be equitably estop-ped from bringing another suit, and that this suit could be maintained.</p> <p>[Cited in The William F. McRae. 23 Fed. 560.]</p> <p>2. A tug with her captain on deck, and a man at her wheel, and no other lookout, held not to have had a proper lookout.</p> <p>[Cited in Cianciminos Tow & Transp. Co. v. The Ripple, 41 Fed. 64.]</p> <p>3. The absence of lights on a canal-boat.held unimportant, when she could have been seen without lights on her. and when there was so much daylight that lights on her would not have afforded any aid in discovering her.</p> <p>[Cited in The City of Troy, Case No. 2,769; The Buckeye, 9 Fed. 667.]</p>

Appeal [by Samuel D. Tillman] from the decision of the commissioner of patents, for refusing to grant to him letters patent for his improvement in pavements.

<p>Case No. 14,051.</p> <p>Patents — Noveltt—Filtek Well.</p> <p>A claim “in its application as a buried water reservoir in the bottom-of a well, a filter, consisting of a perforated cylinder or cylinders, the central space forming a chamber into which the water is filtered, and from which the water supply is drawn,” is not for a new subject matter, because the idea of burying any kind of filter is shown in Mr. Bartlett’s patent, and the same kind of filter shown in complainant’s patent was previously shown in the Andries patent, and the idea of admitting no air to the interior of the filter, and thereby securing the atmospheric pressure to force the water through the soil into the filter was shown in the drive wells of prior date.</p>

On December 28th, 1872. Nehemiah Holmes, since deceased, recovered judgment against Tills & May before the recorder of Kansas City, ex-officio justice of . the peace within the city, for one hundred and fifty-six dollars and thirty cents. On January 16th, 1873, execution issued on said judgment and was placed in the hands of the city marshal, who had the powers of a constable within the city limits. The execution was never actually levied on any property of Tills & May.

[This was an action for damages by John H. Tilly, by his next friend, John Tilly, against Thomas Brown and Francis Dodge.] The declaration contained two counts. The first count averred that certain machinery of great power was under the management, supervision, attention and care of a servant of the defendants.

This was a libel, brought originally in the district court by George W. Otis & Jonathan Thaxter, of Boston, to obtain possession of three quarter parts of the schooner Tilton, alleging that they were the owners of the said three quarter parts, and that possession thereof was wrongfully withheld from them by the said Schenck, McCabe, & Smith.

Motion .for a provisional injunction [by Charles E. Tilton] heard and determined upon the bill — no one appearing for the defendants. ' :

<p>Appeal from Pulaski circuit court.</p> <p>[This was an action by Thomas H. Tindall against Benjamin Murphy.]</p>

This was a libel in personam by Abraham Tingle against Joseph I. Tucker, master of the ship Diadem, to recover wages. Four other suits were brought by other members of the crew of the Diadem, upon the same state of facts, and involving the same questions. The five suits were consplidated and heard as one. The five libellants were all colored men.

<p>[In error to the district court of the United States for the Eastern district of Michigan.]</p>

<p>[This was an action by Hattie B. Tisdale against the Mutual Benefit Life Insurance Company on a policy of insurance.]</p>

<p>Case No. 14,060.</p> <p>Collision — At Pier — Fastenings.</p> <p>L A steam tug, with a boat alongside, was intending to take her out of a slip in which they were. The tide pressed the tug against the side of a canal boat, which was lying fastened to the side of the pier. The captain of the tug told the captain of the canal boat to get out more fastenings to the wharf, lest, when the tug started, the canal boat should be carried away from the pier, but the captain of the canal boat did not do so. When the tug started, the pressure of her by the tide against the canal boat carried the latter away from the pier, breaking the fastenings, which were otherwise sufficient to hold her, and carrying her against another vessel, from which collision she received injury. Her owner filed a libel against the tug, to recover the damage. Held, that the canal boat was not bound to get out the extra fastening.</p> <p>2. If the tug was so pressed against the canal boat,, she ought not to have started her engines till she had pushed herself away from the canal boat, as she could have done, and she was liable for the damage.</p>

<p>Case No. 14,061.</p> <p>Collision — Long Island Sound — Stbameii and Schooner — Lights.</p> <p>1. A steamer and a schooner came in collision at night in Long Island Sound. The wind was southwest, and the schooner was heading east, and making nine or ten knots an hour. The steamer was heading west by south, making five or six knots an hour. The schooner made no change in her course. When the lights of the steamer were first seen a little on the starboard bow of the schooner, the latter showed a torchlight on that side, and afterwards showed it again shortly before the collision. The master of the steamer saw the torchlight, a little on the port bow of the steamer. He also, at the same time, saw a red light and several bright lights apparently on a steamer on his port hand. He ported for a little time, and then straightened up on his course again, and, • on seeing the torchlight again on his port bow, ported again, as he said, because the pilot whom he had on board said it most be on a pilot boat, and he did not wish to be spoken; and, on the re-appearing of the torchlight a third time, still on his port bow, he put his helm hard a-port and stopped his engine, and then, seeing the schooner’s green light, reversed it, but too late to avoid the schooner, which was struck on her starboard side and sunk: Held, that the steamer was bound to have kept out of the way of the schooner.</p> <p>[Cited in Brainard v. The Narragansett, 3 Fed. 256.]</p> <p>2. That the steamer was in fault in porting on first seeing the torchlight but a little on her port bow, without anything to indicate which way the vessel showing it was proceeding, and in following up the schooner, as she did, by repeated portings. instead of starboarding or stopping until she found which way the schooner was going.</p>

<p>Case Wo. 14,062.</p> <p>Babeas Corpus — Jurisdiction—Extradition between States — Agent—Malicious Prosecution.</p> <p>1. T. was commissioned by the governor of the state of Arkansas to present to the governor of the state of New York a requisition for the surrender of a fugitive from justice from Arkansas, named McD., which was based on an indictment found against McD. by the grand jury of Ashley county, Arkansas. T. presented the requisition and the authenticated indictment to the governor of New York, who issued to the sheriff of the county of Kings a mandate for the arrest of McD. and his delivery to T. as the agent of the state of Arkansas. The sheriff arrested McD. in pursuance of the mandate, but before he was delivered to T. he was released from the custody of the sheriff upon habeas corpus issued by a justice of the supreme court of the state. McD. thereupon commenced a suit against T. for malicious prosecution; and obtained from the supreme court of the state an order for the arrest of T. Being held in custody under such order of arrest, T. presented a petition to this court for a habeas corpus, setting forth the facts and claiming his discharge on the ground that he was held in custody by reason of acts committed by him in pursuance of the laws of the United States and which were justified by those laws. Held, that the only acts charged upon T. were acts done by him as the agent appointed Oy the executive of the state of Arkansas, which acts were those prescribed by the act of congress of 1793 [1 Stat. 302], now section 5278 of the Revised Statutes of the United States.</p> <p>2. This court therefore had jurisdiction, under section 753 of the Revised Statutes, to grant the writ of habeas corpus for the purpose of inquiring into the cause of his restraint.</p> <p>3. The governors of the states and their agents, in-reference to the extradition of fugitives from the justice of a state, are compelled to rely upon the statutes of the United States for authority to do the acts required thereby, and the statutes of the United States, when complied with, afford them justification.</p> <p>4. The petitioner was therefore entitled to the writ of habeas corpus.</p> <p>5. T., who was simply the messenger of the state of Arkansas, was not bound to look into the indictment on which the requisition was founded, and determine at his peril whether it charged a crime within the meaning of the laws of the United States.</p> <p>6. The arrest of McD. was by order of the governor of the state of New York; and that whatever T. had done, in presenting the requisition to the governor, was only a ministerial' act, for which he was justified by the direction of the governor and therefore he incurred no personal liability.</p> <p>7. The allegation of malice against T. did not change the case, so long as the acts done were within the scope of the authority conferred upon him and justified by the laws of the United States.</p>

Assumpsit on a promissory note, dated at New York on the 27th of September, 1827, whereby the defendant [Enoch Hobart) promised the plaintiffs, by their partnership name of Titus & Hicks, to pay them $568.85, in six months after date. The declaration also contained the usual money counts. The ease came before the court, by the consent of parties, upon a question what judgment ought to be rendered upon the following facts.

<p>In bankruptcy.</p>

This was a bill in equity. The hill was amended at different times, and, as amended, in substance stated, that in the year 183S, Jonathan… Held: they wholly declined and refused to make the said selection in pursuance of their resolve and agreement aforesaid, and passed a formal resolve by which they offered to refer a small portion of the plaintiff’s said .claims, and declared themselves ready to proceed to the said selection of arbitrator's. That whatever was alleged to…

Assumpsit, for work and labor and services, against three defendants [Noah Claflin and others]. The plaintiff [Jonathan Tobey], by his counsel, Bartlett & Webster, now before trial, moved to amend the writ and declaration by striking out the name of David Green, one of the defendants. who cited Bedington v. Farrar, 5 Greenl. 379; Chandler v. Parkes, 3 Esp, 76; and Noke v. Ingham, 1 Wils. 89.

This was a bill in equity brought to enforce a trust in lands.

<p>Case No. 14*068.</p> <p>Pleading in Eqditt — Answer—Want or Parties —Nominal Parties — Jurisdiction. '</p> <p>1. Matter of avoidance in an answer responsive to the bill on a motion for an injunction, is to be deemed as the affidavit or sworn statement of the defendant; — on the trial it must be proved.</p> <p>[Cited in U. S. v. Parrott, Case No. 15,998.)</p> <p>2. A plea for want of parties is not matter in abatement. It goes in bar to the whole bill. If the defect be fatal, it may be relied on by way of plea or in the answer.</p> <p>3. If a joint interest is vested in the defendants with absent parties, the court has no jurisdiction; if the interest is separable, the jurisdiction attaches</p> <p>4. The act of congress of February 28, 1839 [5 Stat. 321], and the 49th rule of equity of the circuit courts of the United States, enable the court to dispense with nominal and, in some cases, necessary parties, but never with a party deemed indispensable.</p> <p>[Cited in Alexander v. Horner, Case No. 169.]</p> <p>5. Where one is out of the jurisdiction of the court, the fact should be made to appear in the pleadings; and it should be prayed that he be made a party should he come within the jurisdiction of the court.</p> <p>6. Where any necessary party is within the jurisdiction of the court, and is not made a party, there is no jurisdiction, save in case the parties are so numerous as to bring the case within the exception to the rule.</p> <p>7. Where a bill omitted to make two persons who were necessary parties, and who were within reach ot process: and where there were absent parties, and without the jurisdiction of the court; and the bill prayed for cancellation of conveyances in which those absent parties were interested, — the court had no jurisdiction of the ease.</p> <p>[See Cases Nos. 14,069 and 14,070.]</p>

<p>This is an action of ejectment, brought for the recovery of lands situated in the county of Santa Clara, in this state. A jury trial was waived by the parties, and the case submitted on the law and facts to the court; each party reserving to itself the right of exception to the rulings of the court on the admissibility of the evidence, and to its decisions of the law upon the merits. The evidence offered, and the rulings thereon, with a statement of the facts proved, are given in the opinion of the court</p>

This action was ejectment, and defendants pleaded to the jurisdiction of the court, ■ on the ground that Alexander Forbes, one of the defendants, was not an alien and subject of Great Britain, as alleged in the complaint. Issue was taken by replication, and submitted to the jury, who returned a verdict in which they found that James Alexander Forbes, one of the defendants in this case, was, at the time of the institution of this suit, an alien and subject of Great Britain.

<p>At law.</p> <p>Motion to withdraw papers filed with his answer to. Mr. Bradley’s information.</p>

<p>Case No. 14,073.</p> <p>Limitation of Actions — Judgment — Policy of Statute — Plea.</p> <p>Y. The statute of limitations of Ohio does not bar an action on a judgment.</p> <p>[Cited in Randolph v. King, Case No. 11,560.] [Cited in Pries v. Mack. 33 Ohio St. 58; Stock-well v. Coleman. 10 Ohio St. 42.]</p> <p>2. A judgment is not an agreement, contract, or promise in writing, nor is it in a legal sense a specialty.</p> <p>[Cited in Burns v. Simpson. 9 Kan. 662: Me-Afee v. Covington. 71 Ga. 272; O’Brien v. Young, 95 N. Y 431; Peerce v. Kitzmiller, 19 TV. Va. 574; Tyler v. Winslow. 15 Ohio • St. 368.]</p> <p>3. Nor is a judgment barred by the provision, that four years shall.be a bar to all actions not enumerated in the státut».</p> <p>4. It would be inconsistent with the policy of the statute, to bar a judgment in four years, while fifteen years are required to bar a promise in writing.</p> <p>5. To an action on a judgment, the defendant cannot, in his plea, contradict the record.</p>

<p>Case No. 14,074a.</p> <p>.Collision — Rate op Speed at Night — English Rule as to Lookout — Changing Course in Uncertainty — Carrying Lights by Sailing Vessel.</p> <p>[1. Collision occurs at sea between steamer 'and schooner; steamer carrying accustomed lights, and moving at rate of 9% knots; schooner going at rate of 2% or 3 knots, and displaying .no standing lights, but raised a lantern as a signal when the steamer was observed nearing her. but far enough away to enable steamer to avoid her had it been seen. The schooner was not seen by. the steamer until it was too late. Held, that the collision was the fault of the steamer; that when moving at night a steamer ■should keep a proper lookout, and reduce its speed.]</p> <p>[2. A vessel should not change its course in uncertainty when in danger of collision.]</p> <p>[3. A schooner is not bound by maritime law to carry lights while under way.]</p> <p>[The claimant subsequently appealed to the circuit court, where the decree of this court was affirmed. Case No. 7,188.]</p>

In this case. THE COURT, on a bill in equity by [Alfred Todd and Pbilando Armstrong], assignees in bankruptcy [of George T. Newhall, against James M. Townsend], set aside a mortgage which was given in good faith, but so drawn as to be voidable by the bankrupt’s creditors for constructive fraud; holding that the assignees, in bankruptcy had all the rights, in this respect, of attaching creditors. [An appeal being taken to the circuit court by the defendant, the opinion of…

<p>[This was a suit by Henry Toland, a citizen •of the state of Pennsylvania, against Horatio Sprague, a citizen of the state of Massachusetts.]</p>

H O-g,02 ÍH £ £ ^ J?o Sa .5 c co -+2 ioq - v Off— £ spond in damages as claimed in the cross-libel, applies as well to actions in rem as to those in personam. Motion to vacate an order requiring libel-lant to give security to answer the cross-libel, and for stay of proceedings.