Volume 28 — Federal Cases

Declaration in debt for a penalty. It charges that the defendant [Barney Sweeney] was the master or commander of a steamboat called the “Traveller,” licensed for carrying on the coasting trade; and that he navigated said boat and arrived with said boat from a district in one state to a district in an adjoining state on a navigable river and water communication, to wit: from the port of Chicago in the state of Illinois, to the port of Milwaukee in the state of Wisconsin.

Indictment for conspiracy under section 5440, Rev. St., to attempt to account for the property of a bankrupt by fictitious losses. Both defendants [George W\ Swett and John O. Winship] were found guilty upon the sixth count, and thereupon they moved that judgment be arrested, in that the count upon which they were convicted did not charge any offence enacted by act of congress, and for a new trial by reason of the misconduct of a juror.

The defendant [Frank L. Taintor] was indicted under the fifty-fifth section of the national banking act of June 3, 1864 (13 Stat. 116), for embezzling, abstracting, and wil-fully misapplying the moneys and funds of the Atlantic National Bank, of which he was cashier, with- intent to injure and defraud the association.

These were motions to quash indictments [against John C. Tollman and others and Samuel C. Pike], on the ground,' that, in selecting and designating the persons forming the grand jury by which the indictments were found, the mode practised in the highest court of law of the state of New York, in selecting and designating grand jurors to serve therein, was not followed.

<p>Case No. 16,430.</p> <p>Violation of Postal Laws—Taking Letter from Office—Property in Letter.</p> <p>1. If a letter written to a certain individual was intended for the person to whom it was directed, and also for another person; and such other person is authorized by the writer to take the letter out of the post office and read it, by so taking out and reading the letter, there is no violation of the post office law.</p> <p>2. The person who writes a letter has a right to control its use, as it is his property.</p> <p>[Cited in U. S. v.' M’Cready, 11 Fed. 231.]</p> <p>3. The writer of a letter is entitled to an injunction to restrain the improper use of the letter, by the person to whom it is directed.</p>

<p>[This was an action by the United States against Frederick D. Tappan and others to recover certain taxes.]</p>

This was an indictment for murder on the high seas, by means of poison. The only point of law decided was upon the admission of evidence.

<p>[This was an indictment against Ta-wan-ga-ca, or Town-Maker, an Osage Indian, for murder.]</p>

This was an indictment against the defendant [E. R. Taylor], as a postal-car clerk, engaged in the postal service of the United States, on the mail route from Washington City to Lynchburg, Virginia, on the Orange, Alexandria & Manassas Railroad, for embezzling a letter intrusted to him which was intended to be conveyed by mail and to be delivered at the town of Charlottesville, the letter having been addressed to John T. & Henry McColly at the University of Virginia, and…

<p>Case No. 16,439.</p> <p>D sited States Army — Enlistment op Minor — Discharge.</p> <p>[Under Act Feb. 13, 1862. § 2, providing that no person under the age of 18 shall be mustered into the service, but that the oath of enlistment taken by the recruit shall be conclusive as to his age, such oath is conclusive on an application by a parent or guardian for the discharge of his son or ward as being a minor, even though the enlistment was without the parent’s or guardian’s assent.]</p>

<p>Case No. 16,440.</p> <p>Constitutional Law—Issuance op Distress War-KANT BV TREASURY AGENT—RlGUT op Juitr Trial,</p> <p>1. The validity of the act of 1820 [3 Stat. 592] which authorises the agent of the treasury to issue a distress warrant against a defaulting oificer, and his sureties, may well be doubted.</p> <p>2. The judicial power is vested, by the constitution, in the supreme court and in such inferior courts as congress shall establish.</p> <p>3. The issuing of the warrant is a ministerial act, but to decide in what case it shall issue partakes more of a judicial than a ministerial power.</p> <p>4.The right of trial by jury is secured to every citizen, where the amount in controversy exceeds twenty dollars.</p>

This is an indictment which charges the defendant [John B. Taylor] with negligence, as an engineer on board of the Virginia, a steamboat plying between Steubenville in Ohio and Wheeling in Virginia, through which an individual by the name of Rose, and other persons whose names are unknown, were killed by the explosion of the steamboat boiler.

<p>Case No. 16,442.</p> <p>Seamen—Malicious Assault by Mastek—“Mal-ice” Defined—Adthohity of Master and Subordinate Officers.</p> <p>1. Act Cong. 1835, c. 40, § 3 [4 Stat 776], for the punishment of certain maritime offences, provides, that “if any master or other officer of an American ship or vessel, &c., shall, from malice, hatred or revenge, and without justifiable cause, beat, wound or imprison, any one or more of the crew of such ship or vessel,” &c., he shall be punished in- the manner stated in the act. Held that “malice.” in the sense of the act, signified wilfulness, or a wilful intention to do a wrongful act; and, that to authorize a conviction under this act, two things must be shown—First, malice, or hatred, or revenge; and, secondly, a want of justifiable cause to inflict the injury.</p> <p>[Cited in Wiggin v. Coffin, Case No. 17,624; U. S. v. Harriman, Id. 15,311.]</p> <p>2. The master, when on board, has generally the sole authority to authorize punishment to be inflicted on any of the crew; and if he is present, when any punishment is inflicted by a subordinate officer, and can prevent it, and does not. he is personally responsible for the act. And neither the mate, nor any subordinate officer, has authority to punish any seamen, even for improper behavior or misconduct to himself personally, when the master is on board, except by the authority, express or implied of the master, or when the necessities of the ship’s service require instantaneous punishment, as by blows or otherwise, to compel a seaman to do his duty.</p> <p>[Cited in The Dubuque, Case No. 4,110. Approved in Murray v. White. 9 Fed. 564. Cited in U. S. v. Trico. 30 Fed. 492; Cole v. Tollison, 40 Fed. 304.]</p> <p>[Cited in dissenting opinion in Draper v. Commercial Ins. (Jo.. 21 N. Y. 385. Cited in Thompson v. Hermann, 3 N. W. 582, 47 Wis. 609.]</p> <p>3.In the absence of the master, the next highest officer on board succeeds to his rights and authority pro tempore, so far as they are necessary for the due performance of the ship’s duties.</p>

This was a suit against the defendant, who-was master of the brig Flight, to recover the penalty prescribed by the 26th section of the act of congress of 1791, providing that if the-master of any vessel bound to the United States, shall not, on arrival within the district where the cargo is to be discharged, produce to the proper officer the manifest required by the statute, and deliver copies as required, he shall forfeit a sum not exceeding $500. The.

[Error to the district court of the United States for the district of Pennsylvania.] This case came up from the district court, upon a writ of error. The only question was, whether a rectifier of spirits, is a distiller, within the meaning of the act of congress of July 24, 1813, laying duties on licenses to distillers of spirituous liquors. 4 [Bior. & D.] Laws, 572 [3 Stab 42].

This was an information for the forfeiture of the goods under the three clauses of the penal part of the 14th section of the act of July, 1S32 [4 Stat 593]. It contained three counts: 1. That the goods on inspection did not correspond with the entry. 2. That the package contained articles not mentioned in the entry, inasmuch as none of the goods in the package were specified in the entry. 3.

Error from the district court of the United States for the Southern district of New York. An information was filed in the court below, against ten packages or cases of shawls, imported and entered at the custom-house in New York, and seized as forfeited by the collector, under the 14th section of the act of July 14,1832. There were three counts in the information.

<p>Case No. 16,449.</p> <p>United States Mahshals—Advances of Monet fob Taking Census.</p> <p>1. A marshal who in taking the census advances money to pay the expense, after repeated attempts to obtain it from the proper department, may retain the amount thus paid, of the public money, in his hands.</p> <p>2. And this may be done although the government has paid the deputies a second time, it having had.previous notice of the payment by the marshal.</p> <p>3. These facts being found by the jury, they found, under the instructions of the court, a verdict for the defendant, who was sued, as late marshal.</p>

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

This was a writ of error to the district court of the United States for the district of Iowa. The property had been seized by the proper officers, and Robeson interposed a claim thereto. The issue was tried to a jury, when the claimant offered himself as a witnéss. He was admitted by the court to testify, under the exception of the district attorney. The trial having resulted in a verdict for the claimant, the government brought the case here by writ of error.

The indictment charged in proper form that Moses Terrel, a Cherokee Indian, on the 29th of November, 1839, in the Indian country west of Arkansas, feloniously assaulted John Ballard, a white man, “and in bodily fear and danger of his life then and there feloniously did put the said John Ballard, and one bowie-knife of the value of ten dollars, one pocket-knife of the value of fifty cents, and one pistol of the value of ten dollars, the goods and chattels of the said John…

[This was a claim by Henry F. Tesche-macher, Joseph P. Thompson, George H. Howard, and Julius K. Rose for a tract of land known as “La Laguna de Lup Yomi.” The board of land commissioners rejected the claim, but, on appeal to the district court, their decision was reversed, and the claim allowed. See Case No. 13,843. An appeal was taken to the supreme court, where the decree of the district court was reversed,—22 How.

The- defendants [Moses Terrel and Daniel Newman] described as white men, were indicted in the circuit court for an assault with intent to kill, committed on John* Ballard, also a white man, in the Indian country west of Arkansas, on the 29th of November, 1839, and they plead not guilty; and on trial before the Hon. BENJAMIN JOHNSON, District Judge, holding the. circuit court, the jury found them “guilty of an assault and battery, but not with the intent to kill.” The…

<p>Case No. 16,456.</p> <p>Imprisonment for Debt—State Laws—Debtors of the United States.</p> <p>1. The act of congress of March 2, 1867 (14 Stat. 543), adopts the modifications, conditions, and restrictions upon imprisonment for debt then existing by the laws of the several states, and the course of proceedings which may thereafter be adopted therein.</p> <p>[Cited in Low v. Durfee, 5 Fed. 258; Mallory Manuf’g Co. v Fox, 20 Fed. 410.]</p> <p>2. The United States, as plaintiffs in an action at common law. are not exempt from the provisions of that act by virtue of their prerogative.</p> <p>[Cited in Re Sanborn, 52 Fed. 585.]</p> <p>3. The process and forms of proceeding adopted by congress from the state laws are binding on the United States.</p> <p>4. The act of 1798. authorizing the secretary of the treasury to discharge poor imprisoned debtors of the United States, does not prevent the act of 1867 from being availed of by a debtor imprisoned at the suit of the government. The remedy is cumulative.</p>

Information for a forfeiture against thirty-five barrels of high wines,' the property of Geo. P. Frysinger, and seized in his distillery at Rock Island, for alleged violation of the revenue laws.

These cases came up on demurrers to the informations filed by the United States district attorney against the goods to forfeit them for false valuation.

<p>[This was an information of forfeiture against thirty-four barrels of distilled spirits, owned by John B. Hennessy.]</p>

<p>Case No. 16,462.</p> <p>Informers— Deputy Collectors.</p> <p>A deputy collector of internal revenue happened to see improperly branded whiskey unloading at a warehouse, and gave information which led to its forfeiture. Relé, that he was the informer, and entitled to his distributive share. U. S. v. One Hundred Barrels Distilled Spirits [Case No. 15,946], cited and affirmed.</p> <p>[Cited in U. S. v. 278 Barrels of Distilled Spirits, Case No. 16,581; U. S. v. Simons, 7 Fed. 714.]</p>

This was a proceeding for condemnation of certain spirits, a rectifying establishment,, and the paraphernalia connected therewith. The same were seized on the ground that part of the spirits were not branded as required by law, that the tax had not been paid, and that the books had not been properly kept.

<p>Case No. 16,464.</p> <p>Customs Duties—Entry without Invoice—Authority op Collector—Forfeitures.</p> <p>1. By the act of March 3, 1863, § 1 [12 Stat. 737], the collector has no power to permit an entry of merchandise unaccompanied by an invoice, or a sufficient excuse for its absence, but it gives the secretary of the treasury that authority, and the same equitable power of remission, as in other cases.</p> <p>2. By that act, when goods are refused an entry for want of an invoice, if the owner thereof attempts to procure an entry by any false and fraudulent practice or appliance whatever, the goods are forfeited.</p>

[This was a libel of forfeiture against certain boxes and packages of imported articles, alleging a false and fraudulent invoice and entry, with intent to evade payment of the proper duties) These articles were imported in the Wm.

<p>Case No. 16,466.</p> <p>Internal Revenue — Distillers from Fruits— Regulations Prescribed by Commissioner — Branding of Barrels.</p> <p>1. The 2d section of the act of July 20, 1868 [15 Stat. 125], authorized the commissioner of internal revenue with the approval of the secretary of the treasury, to make the regulation relative to distilleries from fruit, in the circular of April 22, 1869, and in the sense of the act the words “provisions relating to the manufacture of spirits,” include provisions touching their removal, and all other provisions which prescribe the duties of distillers.</p> <p>2. A removal of brandy from the distillery without having cut or burned on the barrels the name of the distiller, the name of the district or serial numbers, is not illegal if all other requirements of the statute have been complied with.</p> <p>[Disapproved in U. S. v. Ninety-Five Barrels of Distilled Spirits, Case No. 15,890.]</p> <p>3. Within the meaning of the 96th section of the act of July 20, 1868, it cannot be claimed that a distiller “omits, neglects, or refuses to do or cause to be done anything which the law does not require him but some other person to do.”</p> <p>[Cited in U. S. v. One Thousand Four Hundred and Twe:ve Gallons of Distilled Spirits, Case No. 15,960.]</p> <p>4. It is the province of the legislature to declare in explicit tei ms how far the citizens shall be restrained in the exercise of that power over property ownership gives, and it is the province of the court to apply the rule only to the cases thus explicitly described.</p> <p>[5. Cited in U. S. v. Two Hundred Barrels of Whisky, 95 U. S. 575, as ruling that section 57 of Act July 20, 1868 [15 Stat. 125], applies only to distilled spirits on hand when the act of 1868 was passed, and such ruling disapproved.]</p>

This case was a seizure of property upon land for violation of the revenue laws. It was brought from the district court into this court by appeal, and was heard at the April term, 1S70, on motion to dismiss the appeal.

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

<p>Case No. 16,469.</p> <p>Internal Revenue—Frauds bt Distiller—Evidence of False Returns—Prior Seizures.</p> <p>1. Where property was seized on the 30th of October, as forfeited to the United States, for a violation of the provisions of section 48 of the act of June 30, 1864 (13 Stat. 240), as amended by section 9 of the act of July 13, 1866 (14 Stat. Ill), held, that, in order to show an intent on the part of the claimants, in October, to defraud the government and evade the payment of the tax on spirits distilled by them, it was not erroneous to admit evidence showing that, in and through each of the seven months preceding October, down to the time of the seizure, the claimants made false returns of spirits made and materials used by them.</p> <p>[Cited in U. S. v. Eighteen Barrels of High Wines, Case No. 15,033; U. S. v. Quantity of Tobacco, Id. 16,106; Tyler v. Angevine, Id. 14,306.]</p> <p>2. The fact that nearly all of the same property had been seized a month previously, as forfeited for like fraudulent practices, and that a suit to enforce such forfeiture was pending and at issue, formed no objection to the reception of such evidence.</p> <p>[In error to the district court of the United States for the Northern district of New York.]</p>

This was an information filed against the contents of a building upon Central wharf in Boston, to enforce a forfeiture under the internal revenue law. The property was claimed by John Lombard. Upon the trial it appeared that the building in question was of four stories in height. In the attic story there was a still, and here, as the evidence indicated, a business of distilling had been carried on in violation of the revenue law.

<p>Case No. 16,471.</p> <p>Post Office—Embezzling Letteh.</p> <p>[The defendant took from the post office a registered letter addressed in his care to a person who was dead. He afterwards brought it back to the post office, and persuaded the assistant postmaster to open it and return it to him. He took out a draft which the letter contained, and claims to hold it against a debt the deceased owed him. The widow of the deceased afterwards took out letters of administration in another state, and claimed the draft. Held, that the defendant was not guilty of taking and embezzling a letter, under section 3792, Rev. St.]</p> <p>[Cited in U. S. v. McCready, 11 Fed. 231; U. S. v. Salford, 66 Fed. 945.]</p>

<p>Case No. 16,472.</p> <p>Police Powers— Seizüue and Opening op Letters Carried by Messenger.</p>

<p>Motion in arrest of judgment.</p>

In the alleged bill of indictment it is charged that the defendant [Francis Thomas] published or caused to be published the following libelous matter: “That Colonel Benton and his family permitted Miss McDowell to be seduced by a certain individual, and that they knowing this procured her marriage with him.” March 27, 1846. moved the court that a commission be issued to take the deposition of Mrs. Linn of Missouri, an important witness in the case, who is unable to attend on…

<p>Case No. 16,478.</p> <p>"Violation op Revenue Law—Partnerships—Interpretation of Statute.</p> <p>1. Every partner is civilly liable for violations of the revenue law by his co-partners, whether he knew of, or consented to, such violations, or not.</p> <p>2. The 91st section of the internal revenue act of March 3, 1865 [13 Stat 475], must be so. construed as to create a penalty of three hundred dollars for every violation of it.</p> <p>3. Penal statutes not authorizing indictments are not within the rule of criminal law, that a man is not punishable unless he has been guilty both of a criminal act or omission and a criminal or unlawful intent.</p> <p>The members of a firm may be jointly indicted for making a fraudulent monthly return of tobacco manufactured, though only sworn to by one of them. U. S. v. jVXountjoy [Case No. 15,828].</p>

<p>Case No. 16,479.</p> <p>Interval Revenue — Penalties — Pardon— Informer’s Moiety—Stay of Process.</p> <p>1. Judgment for a penalty under the revenue laws was rendered against T.; at the same time it was adjudged that B. was entitled to a moiety of the judgment as the first informer. Afterward the president, by a pardon, remitted the whole penalty. Held, that the pardon operated to remit the moiety adjudged to the informer, as well as to discharge the portion coming to the United States.</p> <p>2. If the pardon is issued after judgment for the penalty, the court may order a stay of proceedings and process.</p>

<p>Case No. 16,480.</p> <p>Steam Vessels—Saeett op Passengers—Regulations—Carriage op Slaves—Inspector as Witness.</p> <p>1. The act of congress of August 30, 1852, e. 106, §§ 3-5 [10 Stat. 62], providing that vessels propelled by steam, and carrying passengers, shall be provided with certain pumps, life-preservers, &c., applies to a vessel so propelled which actually carries passengers, although not usually and. regularly engaged in that business.</p> <p>2. Negro slaves, shipped by their owner, are passengers, within the meaning of this act.</p> <p>3. An inspector under this act, although he may be the informer, is not entitled to any part of the penalty (as he would have been under the act to which this is an addition), and is therefore not disqualified by interest from testifying in behalf of the libelants.</p>

The validity of this claim undoubted. [Claim of Albert G. Thornes for the Rancho Rio de ios Molinos, alleged to contain five leagues of land in Butte county; confirmed by the board of land commissioners, and appeal taken by the United States.]

[In error to the district court of the United States for the district of Maine.] The original action was brought in the district court of Maine, on a custom-house bond given to secure the payment of duties. The bend was in the common form, with a penalty of $7000, upon condition to be void upon the payment of $3500, or the amount of duties, to be ascertained as due and arising on certain goods, imported into the district of Kennebunk, on the 2d of July, 1812.

<p>Case No. 16,487.</p> <p>Bonds—Joint and Several Obligors—Release— Revivor of Judgments—Defenses—Release of Debtor of United States.</p> <p>1. Where two persons are bound jointly, or jointly and severally in an obligation, the release of one of them will discharge the other.</p> <p>2. Where a separate judgment has been rendered against one obligor on a joint and several obligation, and a scire facias is issued to revive the judgment, the defendant cannot avail himself of a release given to his co-obligor subsequent to the original judgment.</p> <p>3. Where a scire facias is issued to revive a judgment, the defendant cannot avail himself of matters of defence which occurred previous to the original judgment.</p> <p>[Cited in Loeler v. Moore, 20 D. C. 9.]</p> <p>4. Where a joint judgment has been rendered against two defendants, a release of one of them subsequent to the judgment will discharge the other.</p> <p>5. Where a release is given to a debtor of the United States by the secretary of the treasury, under the provisions of the act of 2d March, 1831 [4 Stat 467], it has the same effect and is subject to the same legal consequences as an ordinary release from a creditor to a debtor.</p> <p>[Cited in brief in Walker v. Com., 18 Grat. (Ya.) 23.]</p> <p>6. Where a joint judgment is rendered against two obligors in favour of the United States, and one of them is subsequently released under the provisions of the act of 2d March, 1831, such release is a sufficient defence under a plea of payment to a scire facias, issued to revive the judgment against the other obligor.</p> <p>7. Where judgment has been rendered against a defendant who has subsequently conveyed real estate to the plaintiff, he is entitled, under a plea of payment, to a scire facias, issued to revive the original judgment, to a credit for the value of the property at the date of the conveyance.</p> <p>The jury found verdicts for the United States in the cases arising under the three original judgments rendered against Samuel Thompson alone, and in favour of the defendant in the five remaining cases.</p>

<p>Case No. 16,488.</p> <p>Mexican’ Land Grants.</p> <p>No objections to the confirmation of this claim.</p>

This was an indictment, alleging that the defendant [James M. Thompson], subsequently to the 3d day of March, 1845, to wit, on the 28th day of July, 1846, at Springfield, did establish a private express for the conveyance of, and cause to be conveyed, and provided for the conveyance and transportation of, by regular trips, and at stated periods and intervals, from one city, town or place in the United States to another, to wit, -from Springfield to Chester Village (between…

<p>Motion in arrest of judgment.</p>

<p>Case No. 16,491.</p> <p>Desertions from Navy—Who are Enlisted Seamen.</p> <p>Under the act ot congress of 1855, c. 136, § 11 [10 Stat. 628], making the enticing a seaman who has enlisted, to desert, an offence, a seaman who has passed the examination at the naval rendezvous merely, and has not been examined and passed on the receiving ship, is not enlisted.</p> <p>[Cited in Tyler v. Pomeroy, 8 Alien, 502.]</p>

Indictment for an endeavor on the high seas to commit a revolt on board of the ship Maine by the defendant [John M. Thompson], who was alleged to be a seaman on board; second count, for confining the master of the said ship; against the crimes act of 1790 (chapter 9, § 12). Plea, not guilty. At the trial it appeared in evidence, that the ship was a whale ship belonging to American citizens, and the defendant shipped as cooper for the voyage.

This action was brought against ex-collector of internal revenue, George W. Thom, of the Fifth district of New Jersey, and the sureties upon his official bonds for a breach thereof.

<p>Case No. 16,495.</p> <p>Customs Duties—Illegal Seizures — “Probable Cause"—Certificate of Protection to Collector.</p> <p>[1. “Probable cause” and “reasonable cause,” to which the judge is to certify, under the collection laws (Act 1799, §§ 71, 89 [1 Stat. 627], and Act 1807, § 1 [2 Stat. 411]), in order to exempt the collector from prosecution for an illegal seizure, means not prima facie evidence, but less than evidence which would justify condemnation. It imports a seizure under circumstances warranting suspicion.]</p> <p>[2. The fact that the public appraisers, on the valuation of two merchant appraisers, reported to the collector that certain goods were invoiced 19 per cent, below their market value, afforded, of itself, reasonable ground of suspicion that the invoice was false; and, under such circumstances, the collector is entitled to a certificate of protection.]</p>

<p>Case No. 16,494.</p> <p>Citizenship in State—Effect op Removal—Intent to Retuen—Qualification of Jurors.</p> <p>1. Where a person who had resided for years, and pursued business, at Cincinnati, removed to Covington, Kentucky, with the intention of returning to Cincinnati, and never voted in Kentucky, but uniformly voted in Cincinnati as an elector of Ohio, and who, pursuant to his original intention, returned to Cincinnati: held, that such person did not, by such removal, lose his citizenship in Ohio.</p> <p>2. Such a person is qualified to serve as a juror in a court of the United States, sitting in Ohio; and a new trial will not be granted on the ground of his disqualification to serve as such juror.</p> <p>The defendant was sentenced to pay a fine of $2,000, and to imprisonment for one year.</p>

<p>Case No. 16,497.</p> <p>Customs Duties—Forfeiture of Goods — False Invoices—Admissibility of Evidence — New Trial.</p> <p>[1. Representations by the agent of a foreign importer, made according to a course of dealing, through a series of importations, to a purchaser of the goods, that certain invoices exhibited to the purchaser by the agent were true invoices, sent him by his principal, are admissible against the principal for the purpose of showing the falsity of certain other invoices under which the goods were entered.]</p> <p>[2. The court will not set aside a verdict condemning the goods, although it is of opinion that the weight of evidence is in favor of the claimant, where there is also evidence of a cogent character tending to show a gross undervaluation, with the knowledge of the claimant, and for the purpose of evading the duties.]</p>

<p>Case No. 16,498.</p> <p>Customs Laws—Landing Goons without Permit —Passenger’s Baggage.</p> <p>A passenger by a steamer from a foreign country had, among his personal baggage, three ordinary goods cases, filled with new and dutiable goods only, intended for sale as such. They were landed on the wharf with the personal baggage of the passengers. They were not named in the manifest of the vessel. No entry was made of the goods, nor had any duties on them been paid or secured to be paid; and no permit had been granted to land them, except the general baggage permit issued for the vessel, which authorized the inspector on board to “examine the baggage of all the passengers, and. if nothing be found but personal baggage, permit the same to be landed, and send all other articles not permitted in due time to the appraiser’s stores.” The cases were seized on the wharf, and an information filed to forfeit them, under the 50th section of the act of March 2, 1799 (1 Stat. 6651. as landed without a permit. Held, that, on the above facts, the jury must find a verdict in favor of the government.</p>

This action was brought to confiscate three cases of toys and snuff boxes, claimed by Messrs. Poppy & L. Smith on the ground that there were indecent and obscene paintings in the same invoice.

Petition for return of goods seized as unlawfully imported. The custom-house officers having seized certain live stock upon an information alleging that it had been imported without payment of full duties, John O’Rourke, the owner and claimant of the property seized, presented a petition setting forth that he entered the property at the customhouse at Port Huron, at the sum of three hundred and eighty dollars and fifty cents, in gold, and/paid the duties imposed by law at…

On the 18th day of April, 1865, the district attorney filed an information against the property in question, under the act of congress approved June 30, 1864 [13 Stat. 223], in which it was alleged that the seizure was within the time limited by the proviso to the 68th section of said act, to-wit; thirty days after cause of forfeiture came to the knowledge of the collector of internal revenue, by whom the seizure was made; and also that the causes of forfeiture were removal…

<p>Case No. 16,501.</p> <p>Internal Revenue Act—Fraudulent Bond.</p> <p>[The fact that one or more of the securities on a bond were totally insufficient and worthless at the time of going on the bond, and that the principal was aware of the fact, is material evidence on the question of the fraudulent intention of the parties.]</p>

[This was an information of forfeiture against three hundred and ninety-six barrels of distilled spirits,, claimed by Ferdinand Braun; Ferdinand A. Reuss having - also intervened in the proceeding. Heard on motions for a new trial and in arrest of judgment.]

[This was an information of forfeiture against three hundred and ninety-six barrels of distilled spirits, claimed by Ferdinand Braun. The charge to the jury appears in Case No. 16,502. Motions for a new trial and in arrest of judgment were overruled (Id. 16,503), and the case is now before the court for final proceedings, including the determination of the petition of Ferdinand A. Keuss, intervenor, to have allotted to him a part of the fund.]

<p>Case No. 16,505.</p> <p>Internal Revenue—Illicit Distilling—Forfeitures—Innocent Purchasers and Mortgagees.</p> <p>The forfeiture denounced in section 3281 of the Revised Statutes is of all distilled spirits, etc., found in the distillery, etc., and of all distilled spirits wherever found owned by the distiller at the time of seizure. It does not extend to spirits not the product, and which have not been the subject of illicit operations, and which have been disposed of by him to innocent parties for value, notwithstanding that the distiller may have owned them at some time during the period of his illicit operations. A bona fide mortgagee of such spirits will be protected to the extent of his lien, notwithstanding that the legal title may remain in the distiller. And conversely, his rights will be limited to the enforcement of his lien,' notwithstanding that his mortgage is in the form of a bill of sale absolute on its face,</p>

<p>(Error to the district court of the United States for the district of Louisiaha.]</p>

This case was brought to forfeit certain goods for undervaluation. It appeared on the trial that the goods arrived in April, 1863, on board the brig Veteran, from Matamoras. They were consigned to the firm of M. Eche-verría & Co., and by them entered at the custom-house.

This was an action to forfeit the goods on the ground of an alleged fraudulent extension of the invoice by the claimants, with intent to evade the payment of duties. Henschen & Unkart, the claimants, are importers, doing business here, and imported these goods, in value about $30,000, in the latter part of 1857 and the early part of 1858. They purchased the goods at Stollberg, near Chemintz, in the kingdom of Saxony.

This case came up upon an appeal from the clerk’s taxation of the marshal’s fees. [See Case No. 16,510.] The information in the case was filed in October, 1865, and averred that the property proceeded against had been seized by Collector Wood, of the Second district, as forfeited to the United States for a violation of the internal revenue act Process was thereupon issued to the marshal, directing him to attach the property.

This was an application on the part of the claimant of the property seized, to have the same delivered to him upon giving security in the amount of the value thereof.

<p>Case No. 16,511.</p> <p>Violation of Customs Laws — Importation op Liquors—Juniper Cordial.</p> <p>[Juniper cordial, which contains sufficient saccharine matter to disguise 11 per cent, of alcohol, is a sweet cordial, within the meaning of the 103d section of the customs act of 1799 (1 Stat. 701), which provides that no distilled spirits (arrack and sweet cordial excepted) shall be imported, except in casks or vessels of 90 gallons and upwards.]</p>

<p>Case No. 16,512.</p> <p>Information of Forfeiture — Customs Laws — False Invoice—Parties.</p> <p>1. In an information in rem for a forfeiture alleged to be incurred under the collection act of 1799, c. 22. § 66 [1 Stat. 677], it is essential to charge that the goods were entered under a false invoice, and that they were falsely invoiced with the design to evade the duties thereupon, or some part thereof.</p> <p>[Distinguished in Friedenstein v. U. S., 8 Sup. Ct. 842. 125 U. S. 232.]</p> <p>2. Therefore, where such an information only alleged that the entry was made below the actual cost, with the design. &c.. and the court instructed the jury that the invoice must be falsely made, and with the design to evade the duties, and the jury found for the plaintiffs, it was held that judgment must be arrested.</p> <p>[Distinguished in Friedenstein v. U. S., 8 Sup. Ct. 842, 125 U. S. 232. Cited in U. S. v. Fifteen Barrels Distilled Spirits, 51 Fed. 423.]</p> <p>3. It seems that such an information should be brought in the name of the United States alone, without making the seizing officers parties.</p>

Trial of an information. This information. was filed against three railroad cars and three hundred barrels of flour, claimed to be forfeited by reason of an unlawful removal of a custom-house seal while the cars and contents were in course of transportation from Canada into the United States.

<p>Case No. 16,515.</p> <p>Forfeiture against Distillery—Construction of Statutes—Power of Government—Personal and Constitutional Rights—Certainty of Description—Presence of Claimants.</p> <p>1. A proceeding against a distillery for forfeiture under the revenue laws, is not a criminal proceeding within the meaning of the constitution.</p> <p>[Cited in Dobbins’ Distillery v. U. S., 96 U. S. 399.].</p> <p>2. The true test is, whether the judgment is of punishment, against the person, or of forfeiture. against the res.</p> <p>3. Section 860 of the United States Revised Statutes is modified and partially repealed by the act of June 22, 1874 (Rev. St. U. S. 1874, p. 162).</p> <p>4. The revenue law is not, properly speaking, a penal statute to be construed with strictness in favor of the defendant.</p> <p>5. If the legislative protection against a witness’ evidence being used against himself, is as broad as the constitutional provision against compelling a person to criminate himself, he can be compelled to answer.</p> <p>[Cited in U. S. v. Shapleigh, 4 C. C. A. 237, 54 Fed. 132: Boyd v. U. S., 6 Sup. Ct. 535, 116 U. S. 635.]</p> <p>6. The complete superintending control of the .business of distillers and rectifiers is exercised by the government, and when they enter the business they contract to submit to this governmental surveillance.</p> <p>7. It is no infringement of personal or constitutional rights for the government, under the act of June 22, 1374, to require the production of, and, if necessary, seize any or all the books and papers kept by them in their business. They are not such private property as to be exempt from seizure and search, nor are they protected by the rules against obtaining from a party evidence to be used against himself. The government has really an interest in such business. as affecting the public revenues.</p> <p>8. The discretion of the court in requiring books and papers to be produced, should not be exercised in favor of the claimants, when no special circumstances are shown by them.</p> <p>9. The books and papers are not required to be more specifically described than as those used and kept in their business as distillers or rectifiers, between certain dates named.</p> <p>10. The claimants and their counsel have the right to be present at the examination of their books and papers.</p> <p>11. Many cases cited and commented upon.</p>

<p>Case No. 16,514.</p> <p>Customs Duties—Forfeitures—Fraudulent Undervaluation.</p>

<p>Case No. 16,516</p> <p>Official Bonds — Liability of Sureties — Discharge in Baxkrui-tcy.</p> <p>1. Suit was brought against defendants as sureties on the bond of a deceased collector of internal revenue. One of the defendants pleaded his discharge in bankruptcy in bar of the action, and the court held, that although this defendant was a surety to the government, he was discharged under the bankrupt act, and that the plea was good, this case not coming within the exceptions named in the act.</p> <p>2. The court construes the fourteenth section of the bankrupt act in relation to contingent debts and liabilities.</p>

[This was an indictment against Patrick Tierney upon the charge of larceny, under the crimes act of April 30,1790. On a plea to the jurisdiction.]

<p>[This was a suit by the United States against Samuel J. Tilden to recover certain income taxes.]</p>

<p>Case No. 16,520.</p> <p>Practice—Construction of Statute — Depositions De Bene Esse—Opening before Trial.</p> <p>1. Depositions de bene esse taken pursuant to Rev. St. U. S. § 863, may be opened before the trial by order of the court upon motion of one party to the suit and against the objection of the other party.</p> <p>2. In the construction of the Revised Statutes of the United States the presumption is against an intention to change the meaning of a statute re-enacted therein. And no change of meaning will be imputed to a change of phraseology, unless the language used indicates an intended departure from the re-enacted statute.</p> <p>3. Rey. St. U. S. § 865, is to be construed as a re-enactment of part of section 30. Act Sept. 24, 1789 [1 Stat. 88], and is not to be construed as changing the construction of that section in respect to the time when depositions de bene esse may be opened.</p>

[This was an action by the United States against Samuel J. Tilden to recover certain income taxes. Heard on a motion for a bill of particulars of the complaint of the plaintiff.]

<p>[Suit by the United States against Samuel J. Tilden to recover money alleged to be due as taxes on income.]</p>

<p>This was an indictment [against Francis Tilden], founded on the 10th section of the post office act-of March 3, 1845 (5 Stat. 736). The first count, to which the others were similar, was as follows;</p> <p>“The jurors of the United States of America, within and for the district aforesaid, upon their oath, present that Francis Tilden, of Easton, in said district, railroad conductor, on the eighteenth day of April, in the year one thousand eight hundred and fifty-seven, then and there being the conductor of a certain railroad car, and then and there having ¡he charge thereof at the time, and not then and there being the owner thereof, in whole or in part, said car then and there performing regular trips, at stated periods, on a post-route, to wit,—on a certain railroad then and there made and completed, called the ‘Easton Branch Railroad,’ and on one other certain railroad then and there made and completed, called the ‘Stoughton Branch Railroad,’ and on one other certain railroad then and there made and completed, called the ‘Boston and Providence Railroad,’—did, after the third day of March, in the year one thousand eight hundred and forty-five, to wit,—. on the eighteenth day of April, in the year one thousand eight hundred and fifty-seven, on said railroad car, then and there performing regular trips as aforesaid over the said railroads as aforesaid, the same then and there being post-routes as aforesaid, he, the said Tilden; then and there having charge at the time of said ear,—transport and convey a certain letter otherwise than in the mail, on said post-routes from the said town of Eas-ton to the said city of Boston, said letter then and there being mailable matter, and not then and there being a newspaper, pamphlet, magazine. or periodical, and not then and there relating to any article at the same time conveyed in and by said railroad car, whereof the said Tilden was then and there conductor, and then and there had charge as aforesaid.”</p> <p>The defendant moved to quash the indictment, for causes stated in the opinion of the court.</p>

This was an action of debt on bond. The bond declared on was executed by-Samuel Hawkins, as principal, and the defendants [Robert Tillotson and Nicholas Gouvemeur], as his sureties, on the 2d of November, 1819, and was in the penal sum of 150,000 dollars, with the following condition: “Whereas the late Benjamin W. Hopkins, of the state of Vermont, did, on the 13th day of May, 1818, enter into a contract with General Joseph G. Swift, then chief engineer of the United States,…

[At law. This was an action of debt, brought by the United States against David Tilton, under section 69 of the act of March 2, 1799 (1 Stat. 678), to recover double the value of certain goods alleged to have been smuggled into the United States, and bought and concealed by defendant with knowledge that they had been smuggled. Heard on demurrer to the plea in bar.]

This was a motion to quash an indictment [against Edward L. Tinklepaugh and others] founded upon the 22d section of the act of April 30, 1790 (1 Stat. 117), in which, among other things, it is provided that, if any person or persons shall knowingly and wilfully obstruct, resist or oppose any officer of the United States in serving or attempting to serve or execute any mesne process or warrant, or any rule or order of the courts of the United States, or any other legal or…

<p>Case No. 16,528.</p> <p>Indian Country—Jurisdiction of United States — Constitutional Law — Treaties — Internal Revenue Laws.</p> <p>1. The Indian country is within the jurisdiction of the United States, and congress may extend all laws within the constitutional limits of municipal legislation over the same.</p> <p>2. The interne 1 revenue laws imposing taxes on manufactured tobacco are in force in the Indian country.</p> <p>3. Though a treaty is the law of the land, under the constitution of the United States, congress may abrogate 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.]</p> <p>4. So much of article 10 of the treaty of July 19, 1866 [14 Stat. 801], between the United States and the Cherokee Nation as is repugnant to the provisions of the act of congress-of July 20, 1868 [15 Stat. 125], imposing taxes on manufactured tobacco, is thereby abrogated.-</p> <p>[The above judgment was affirmed by the supreme court in 11 Wall. (78 U. S.) 610.]</p>

The prisoner [Frank Tolson] was indicted, under the act of congress of 1790 (1 Stat. 112), for the punishment of certain crimes, for stealing a watch in the county of Washington. ■ The evidence was that he stole the watch in Maryland, and brought it into this county. contended, that as the offence was committed under another sovereignty, the English cases respecting goods stolen in one county and carried into another county, did not apply; for both counties in England are…

<p>Case No. 16,533.</p> <p>Internal Revenue Laws—Violation by Brewer —Removal of Beer—Intent.</p> <p>[The criminal liability of a brewer under the internal revenue act, for selling beer, and allowing its removal from his brewery without affixing the proper stamps, is not dependent on his actual intent to defraud.]</p>

<p>Case No. 16,534.</p> <p>Contempt of Court—Possession—Bonding Property—Effect of Appeal—Jurisdiction.</p> <p>1. H. filed a libel against T. and the yacht A., to recover possession of the yacht. A decree was rendered dismissing the libel, and authorizing T. to give a bond and receive possession of the vessel from the marshal, and also authorizing H. to give a bond and receive such possession, in case T. failed to do so. T. not giving the bond, H. gave it and received the vessel. H. also appealed to the circuit court from the decree, and' the return was duly made to that court. T. then took the vessel by force, from one of the sureties on the bond, to whom H. had delivered her. H. then applied for an attachment against T. for contempt of court: Held. that the giving of the'bond substituted the bond for the vessel, and the taking of the vessel by T., after the bond had been given, was not a contempt of court.</p> <p>2. The possession of the vessel, which the court had relinquished on the giving of the bond, must be maintained and defended in like manner as if the property had never been in the custody of the court, and not otherwise.</p> <p>3. T., having taken the vessel, might possibly have lost the benefit of the bond.</p> <p>4. After the return was filed in the circuit court, if the custody of the vessel was in either court, it would be in the circuit court, by virtue of the appeai.</p>

<p>Indictment for murder.</p>

[In error to the district court of the United States for the Southern district of Georgia.] One Titus filed a petition in the district court as informer, claiming one-half the proceeds of lands seized and sold in the principal case. The court awarded judgment in his favor. [Case unreported.] This is a writ of error to reverse that judgment.

This was a suit at common law. The declaration averred the making of a bond by four obligors, a breach of the bond, the death of one of the obligors and the due appointment and qualification of the two defendants [Edward H. Tracy and another] herein named, as his executors, subsequent to the breach. The remaining obligors and the executors were made defendants.

The facts of the case appeared by the evidence as follows: On the evening of the 27th November, at about a half or three quarters of an hour antecedent to the fatal event, the prisoner [George Travers], who had been a mariner in the service of the United States, but whose term of service had a short time previously expired, was, with several of his comrades, engaged in the sport of casting snow bails at each other in the navy yard at Charlestown.

In the cause above entitled, and in various others of a similar nature, the judgment creditors of sundry counties in this state, who have heretofore had peremptory writs of mandamus issued to the county officers to collect taxes .sufficient to pay their judgments, move the court, upon affidavits and verified informations, to appoint the marshal for the district of Iowa to execute said writs and collect the said taxes in the place of the county treasurers.

This is an indictment for stealing a letter from the mail, containing money. The principal witness against the defendant was the carrier of the mail, who admitted that he was an accomplice, and received a part of the money taken from the letter. The carrier of the mail, it being a horse mail, being young and inexperienced, was influenced, as he stated, to participate in the act, through the persuasion of the defendant.

<p>Case No. 16,539.</p> <p>Internal Revenue—Distiller’s Bond—Sale of Distillery by Collector—Prior Liens.</p> <p>The defendant, being indebted to the United States, his distillery was levied on and sold to the plaintiff, at the sum due by the defendant to the United States. Subsequently it was ascertained that the property in question was encumbered by liens, existing prior to his commencing business as a distiller, to an amount larger than the value of the property, and the property was again sold to satisfy the prior liens. In a suit brought on the bond of the distiller, held, that the sale of the premises to the plaintiff extinguished the debt, and that it made no difference whether the defendant had any interest in the property, or that the purchaser acquired no title; nor is it material that the United States, and.not an individual, was the purchaser...</p>

<p>The defendants [Henry Trobe and John F. Smith, indicted with F. W. Goodis and Thomas Moritz] were tried, at the late term of the United States district court, for carrying on the business of distilling coal oil without taking out the license required by the revenue law, and convicted. On motion for a new trial, and in arrest of judgment.</p>

[Prize. This was a libel against the British, schooner Tropic Wind, her tackle, apparel,, furniture, and cargo, seeking to condemn the-same as prize of war for alleged violation of the blockade.]

<p>Case No. 16,542.</p> <p>Indictment under Several Statutes—Forging Treasury Notes.</p> <p>1. When an offense is prohibited by several statutes, it is' usual to conclude the indictment contra formam statutorum. But a conclusion contra formam statuti in such a case will not be sufficient to support a motion.in arrest of judgment. So, a conclusion in the plural where there is but one prohibitory statute, is not ground for motion in arrest of judgment.</p> <p>■2. An indictment for forging treasury notes need not in terms give them that name. The court will determine what they are by the copies of them set out in the indictment.</p> <p>3. In an indictment for forging a treasury note, it is not necessary to aver that it was made in the resemblance of the genuine notes.</p> <p>[Cited in U. S. v. Bennett, Case No. 14,572; U. S. v. Noelke', 1 Fed. 429.]</p> <p>NOTE. A conclusion “against the form of the statute” is sufficient when the offense is within more than one independent statute, and a conclusion “against the form of the statutes.” would be good, though the offense were punishable by a single statute only. U. S. v. Gibert [Case No. 15.204]. This decision was given on a motion for new trial and in arrest of judgment. In-the case of U. S. v. Burns [Id. 14,-691], an indictment for counterfeiting coin,— and where there was an averment oí its “likeness and similitude of genuine coin,”—the court held that such averment must be proved, and laid down the rule that “if, from incompleteness or the clumsiness of the manufacture, men of very ordinary circumspection and intelligence could not be imposed upon by them [the coins] there is no ground for the inference that they were designed for fraudulent use.” See, also, U. S. v. Morrow [Id. 15,819].</p>

<p>Case No. 16,543.</p> <p>Internal Revenue — Tobacco Manufacturer’s Bond — Expiration of License — Notice—Pleadino.</p> <p>1. The liability of the sureties on the bond of a manufacturer of tobacco, given in pursuance of section 34 of the act of congress of March 3, 1863 [12 Stat. 729], does not cease upon the expiration of his license as such manufacturer.</p> <p>2. The provision of the law, making the neglect of a manufacturer of tobacco to procure a license a punishable offense, was not designed for the benefit of sureties, but to protect the government against the frauds of the manufacturer.</p> <p>3. Revenue officers are not required to give notice of the expiration of a manufacturer’s license. It is a matter within his knowledge, and of which he must take notice at his peril.</p> <p>4. In a declaration on a bond, several breaches may be assigned in the same count.</p>

The prisoners [Samuel] Tully and [John] Dalton were apprehended at the Island of St. Lucia, by authority of the govemmoit there, on suspicion of having run away with a vessel of the United States, on board of which the former was mate, and the latter a mati-ner. Being sent to the United States for trial, they were brought first into Martha’s Vineyard, within the district of Massachusetts.

The jurors of the United States for Washington county aforesaid, on their oaths to present Enoch Tucker, late of the county-aforesaid, merchant, on the 14th day of December, 1846, with force and arms, at the county aforesaid, a certain road being a common highway leading from Bladensburg, Pis-eataway and the Alexandria Ferry to Bla-densburg, known as the old Bladensburg road, used for all the good citizens of the United States, and their horses, coaches, carts, wagons and…

<p>Case Ho. 18,547.</p> <p>Internal Revenue — Transportation Bonds — Execution by Clerk of Partnership—Ratification—Liability op Surety.</p> <p>L A transportation bond, under the law in force at the date of its execution, signed by the obligors in blank, as to the quantity of spirits to be removed, and the amount in money which it was intended to secure, is not binding on the ob-ligors, unless they adopted and ratified the bond, after the instrument was completed, by filling the blanks.</p> <p>2. Such a bond, executed by a firm, in a partnership transaction, adopted and ratified by one member of the firm, becomes valid as to the firm.</p> <p>3. The act of delivering the bond to the collector by one of the firm, after the blanks are filled, for the purpose of obtaining a permit for the removal of the spirits from the distiller’s bonded warehouse, with the declaration that it was all right, is an adoption and ratification of the bond as completed, that makes it valid as to the parties so adopting and ratifying it.</p> <p>4. Where such a bond is executed in the name of the firm by a clerk of the firm, who was in the habit of thus using the firm’s name, without objection by the members, and who was the active manager of the business of the firm, it is not necessary for the United States to prove that the clerk was authorized thus to sign the bond by an instrument of writing under seal, or any written instrument.</p> <p>5. If the jury find, from the evidence, that the firm did authorize the signing of their names by their clerk, either by parol or equivalent acts, it will be obligatory on the firm, especially if they used the bond for the purpose for which it was intended, and thus admitted the validity of its execution.</p> <p>6. As to the surety in the bond, if therr is no proof that he, either expressly or by impl cation, assented to and adopted it, after the auditions to it, by filling the blanks, it is not obligatory on him.</p> <p>(The jury returned a verdict against Joseph M. and William Turner for the amount claimed by the United States, and found in favor of James McIChann, as surety.)</p>

<p>Case No. 16,548.</p> <p>Distillert PitoPEETr—Lies for Taxes—Bona. Fide Purchaser.</p> <p>[The lien given to the government, by Act July 13, 1866, § 32, for taxes on a distillery, is valid as againsr an innocent purchaser for value of the premises.J</p>

<p>Case No. 16,549.</p> <p>Revolt and Mutiny—Neglect of Dutt—Solic-iting Seaman to Commit a Felony.</p>

<p>Case No. 16,550.</p> <p>Grand Jurors—Drawing and Summoning—Qualifications—Pi.ua in Abatement.</p> <p>A plea in abatement to an indictment, averred that 48 persons were summoned as grand ju-ors; that the names of such persons were not drawn by the clerks, as required by the rules; that one of the grand jurors was a non-resident; and that several of them were not possessed of the proper property qualification. It did not aver any prejudice to the accused. On demurrer to the plea, held, that the plea was bad.</p> <p>[Cited in U. S. v. Benson, 31 Fed. 901; U. S. v. Terry, 39 Fed. 361; U. S. v. Ewan, 40 Fed. 452.]</p>

<p>Case No. 16,551.</p> <p>Internal Revenue—Seizure op Distilled Spirits—Informers.</p>

<p>Case No. 16,552.</p> <p>Treasury Rerulation—Validity.</p> <p>[The regulation issued September 2, 1867, by the secretary of the treasury, charging informers with a proportionate share of the costs of the proceedings, is valid, the secretary’s power to issue regulations on the subject not having been previously exhausted.]</p>

<p>Case Mo. 16,553.</p> <p>Ccstoms Duties—Valuation—Goods Purchased and Goods Manufactured bt Exporter.</p> <p>1. Where goods, subject to ad valorem duty, are purchased in a foreign place and exported to the United States, a true valuation in the invoice is the actual cost at which they were purchased.</p> <p>2. Where goods, subject to ad valorem duty, are manufactured in a foreign country, and exported to the United States by the manufacturer, a true valuation in the invoice is the market price or value at the place of exportation.</p>

<p>Case No. 16,555.</p> <p>Collection of Duties—Bond fob Return of Goods Seized.</p> <p>Under section 89 of the duties collection act of 1799 [1 Stat. 695], which allows goods seized for non-payment of duties to be appraised, and delivered to the owner upon his giving a bond for the payment of the appraised value, &c.,— the bond must be for the actual cash value of' the property, at the time and place of seizure, without any deduction for duties paid. This rule applies equally, whether the property has ben seized in warehouse or in the hands of the importer.</p> <p>[Cited in U. S. v. 1,291 Bales of Tobacco, Case No. 15,965.] ■</p>

<p>Case No. 16,558.</p> <p>Internal Revenue—Illicit Distilling-—Forfeitures—Innocent Mortgagee.</p> <p>[Forfeitures for fraudulent distilling extend to the interest of a mortgagee, even if ignorant of the frauds.]</p>

<p>Case No. 16,557.</p> <p>INTERNAL REVENUE ACT—FORFEITURE—PaT OP INFORMER.</p> <p>[The share of an informer in the 'proceeds of forfeited spirits should be fixed by the law in force at the time of the payment of the proceeds into the registry and the submission of the proofs as to the informer, and not by that subsequently adopted.]</p>

<p>Information for. violation of the revenue law.</p>

On the 17th December, 1831, an information was filed by the attorney of the United States, against twenty-eight. packages of pins imported in the ship Monongahela, from Liverpool, which were alleged to be forfeited, on the ground, that “the invoice thereof was made up with intent to evade and defraud the revenue,” contrary to the provisions of the act of congress of May 28, 1830, relative to goods subject to ad valorem duty. Pamph. Laws 1830, p. 105.

This was a case brought by the United States against twenty-five barrels of alcohol, in a case of seizure and forfeiture on information filed by the United States district attorney. The proceeding was in rem. The different grounds for forfeiture were set forth in separate articles of information, charging different causes of forfeiture under the several provisions of the internal revenue law.

<p>[This was an information of forfeiture against 25 cases of cloths, 15 cases of cassi-meres. 1 case of cloths and cassimeres, and 24 pieces of pilot cloths, John Taylor, Jr., and Blackburne & Co., claimants.]</p> <p>The information contained 13 counts: (1) That the goods were brought from a foreign port into some port or place in the United States, to the attorney of the United States unknown, and were unladen and delivered from the vessel in which they had been brought, without any permit or special license from any collector or naval officer, or any other competent officer of the customs. (21 That the goods were brought into the port of New York, and there unladen and delivered without a permit. (3) That the goods were found concealed in a certain store, in the occupation of William Blackburne & Co., at the port of Philadelphia, the duties on said goods not having been paid or secured to be paid. (41 That the goods were entered at the port of New York, and on each entry an invoice produced and left with the collector, and that the said goods were not invoiced according to the actual cost at the place of exportation, but at less sums than such actual cost, with design to evade the duties thereupon, or some part thereof. (5) That the invoices and packages presented at New York, were made up with intent, by a false valuation, to defraud the revenue of the United States. (6) That the invoices presented at New York were made up with intent, by a false valuation, to evade and defraud the revenue of the United States. (7) That all, and each of the packages contained in the entries', and each and every of the invoices, were made up with intent, by a false valuation, to evade and defraud the revenue. (8) That all and each of the invoices were made up with intent, by a false extension, to evade and defraud the revenue. (9) That all and each of the packages were made up with intent to evade and defraud the revenue. (10) As the fourth count, with the exception of the entry being laid at some port or place, to the attorney of the United States unknown. (11) As the sixth count, with the same exception as in the tenth count. (12) As the seventh count, with the same exception as in the tenth count (13) As the ninth count, with the same exception as in the tenth count</p> <p>The information was subsequently amended: First, by inserting in the first three counts the name of George Wolf, the collector of the port of Philadelphia, as the party seizing the goods, and second, by inserting in the last four counts, the port of New York, for the port or place unknown.</p> <p>The counts were founded respectively, as follows: The. first count on the 50th section of the act of March 2, 1799; the second count on the 50th section of the act of March 2, 1799; the third count on the 68th section of the act of March 2, 1799; the fourth count on the 66th section of the act of March 2, 1799; the fifth count on the 4th section of the act of May 28. 1830 [4 Stat. 410], and on the 14th section of the act of July 14, 1832 [4 Stat 593]; the sixth count on the 4th section of the act of May 28, 1S30; the seventh count on the 14th section of the act of July 14, 1832; the eighth count on the 4th section of the act of May 28, 1830; the ninth count on the 14th section of the act of July 14, 1832; the tenth count on the 66th section of the act of March 2, 1799; the eleventh count on the 4th section of the act of May 28, 1830; the twelfth count on the 14th section of the act of July 14, 1832; and the thirteenth count on the same section.</p> <p>On the 10th March, 1840, John J. Logue, being sworn, on his voir dire, said: I was one of the persons who went to Mr. Blackburne’s store, and assisted in making the seizure.</p> <p>Whereupon Mr. Williams objected to the witness, on the ground of interest, as he might relieve himself from his liability to an action of trespass, and obtain a certificate of probable cause, by means of his own evidence.</p> <p>Cadwalader and Dallas. Whether an action of trespass will be brought is a remote contingency; it is a collateral matter; the interest is not sufficiently direct. The witness is not interested in the ease to the extent of a farthing. Act March 2. 1799, § 91 (1 Story’s Laws, 655, 656 [1 Stat. 697]); The Thomas and Henry v. tf. S. [Case Ño. 13,919]; Mc-Veaugh v. Goods, 1 Dali. [1 U. S.] 62.</p> <p>Mr. Sergeant replied.</p> <p>The effect of the principle contended for by the claimants, would be to repeal and expunge a vast body of the laws of the United States. An attempt to defraud would be punishable, but if the attempt should be successful, the perpetrator and his goods would go free. Our ground is threefold: First, that the appraisement of all goods is not necessary, and did not take place in this case. Second, that an examination and appraisement is not conclusive upon the United States as to a claimant, in a ease of forfeiture. Third, that, no matter how the forms of the law may have been complied with, if there is fraud, we are entitled to go behind those forms, and to consider them as nullities, so far as the question of fraud is concerned. Wilson v. Saunders, 1 Bos. & P. 269; Blewitt v. Hill, 13 East, 13; Bosworth v. Maxwell, Hardin, 208; Reniger v. Fogossa, Plow. 10; Partridge v. Strange, Plow. 82; The Two Friends [Case No. 14,289]; U. S. v. The Union, 4 Cranch [8 U. S.] 217; Tappan v. U. S. [supra]; U. S. v. A Package of Lace [Case No. 15,985]; U. S. v. Sixteen Packages [Id. 16,303]; U. S. v. Riddle, 5 Cranch [9 U. S.] .311; U. S. v. Twenty-Eight Packages of Pins [Id. 16,561]; U. S. v. One Hundred and Twelve Casks of Sugar, 8 Pet. [33 U. S.] 277; U. S. v. Phelps, Id. 700; Ex parte Davenport. 6 Pet. [31 U. S.] 661; Locke v. U. S., 7 Cranch [11 U. S.] 339. 345; Sixty Pipes of Brandy, 10 Wheat. [23 U. S.] 421. Whatever is done in fraud of the law is done in violation of it. Lee v. Lee, 8 Pet. [33 U. S.] 44, 50; The San Pedro, 2 Wheat. [15 U. S.] 140; The William King, 2 Wheat. [15 U. S.] 148, 153; U. S. v. Hathaway [Case No. 15,326]; U. S. v. Lyman [Id. 15,647].</p> <p>cited U. S. v. Three Hundred and Fifty Chests of Tea. 12 Wheat. [25 U. S.] 490; U. S. v. A Package of Lace [supra].</p> <p>The forfeiture attaches at the moment of committing the offence, when the entry was made on the fraudulent invoices, and no subsequent act could purge the fraud and forfeiture, except by the consent of the United States. U. S. v. Breed [Case No. 14,638]; Gelston v. Hoyt, 3 Wheat. [16 U. S.] 311, 316; U. S. v. Certain Bags of Coffee, 8 Cranch [12 U. S.] 398; U. S. v. Six Packages of Goods. 6 Wheat. [19 U. S.] 523; Tappan v. U. S. [supra].</p> <p>cited against the evidence, U. S. v. Fourteen Packages of Pins [Case No. 15,151]; Gelston v. Hoyt, 3 Wheat. [16 U. S.] 311; U. S. v. Breed [supra]; Tappan v. U. S. [supra]; U. S. v. One Case of Hair Pencils [supra]; U. S. v. A Package of Lace [supra].</p>

This was an action by the United States against 25 cases of cloths, 15 cases of cassi-meres, 1 case of cloths and cassimeres, and 24 pieces of pilot cloths, seized at the store of W. Blackburne & Co.

<p>Case NTo. 16,564.</p> <p>Internal Revenue Act—Forfeiture oa Spirits —Pat of Informer.</p> <p>[A decree condemning liquor was entered by the consent of the claimant, but. before a sale thereunder, the decree, and all proceedings thereon, were vacated on claimant’s motion, and he was allowed to come in and defend. After he filed his claim and answer, the cause was postponed for one term, and a final decree of condemnation was then rendered and carried into execution. Held, that the share of the informer in the proceeds was to be determined by the law in force at the time of such final decree.]</p> <p>Decree below affirmed. [Case No. 14,282.]</p>

[Appeal from the district court of the United States for the Eastern' district of Pennsylvania.] This was an appeal from a decree of the district court [Case No. 16,573], on an information filed by the United States against twenty-four coils of cordage, three bolts of ravensduck, and four pieces of sail cloth, alleged to have been forfeited, by not having been reported on their importation.

<p>Case No. 16,565.</p> <p>Internal Revenue Laws—Rights op Informers —Treasury Regulations.</p> <p>1.The treasury circular of September 2, 1867, respecting the shares of informers, in cases of forfeiture under the internal revenue laws, does not apply to a case where the proceeds of the forfeiture had been received by the marshal prior to the issuing of that circular.</p> <p>2.The right of the informer became fixed, on the receipt by the marshal of the money, to receive the amount to which, by the then existing regulation, he was entitled.</p>

<p>Case No. 16,569.</p> <p>Internal Revenue—Informations of Forfeiture. —Proceedings at Law—Opening Judgment after Term.</p> <p>Ordinary proceedings for a forfeiture under the internal revenue laws of the United States are proceedings at common law, and must be governed by the practice of courts of. common law; and by that practice the court has lost the power to open a judgment when the term, at which it was entered has gone by.</p>

<p>Case No. 16,567.</p> <p>Forfeiture of Property—Effect.</p> <p>[When a statute denounces a forfeiture of property as a penalty for the commission of crime, the forfeiture takes place when the offense is committed, if the denunciation is in direct terms, and then operates as a statutory transfer of the property to the government.]</p>

<p>Case No. 16,570.</p> <p>Customs Duties—Forfeiture for Undervaluation—Manufacturing Importer.</p> <p>1. An information against 26 cases of rubber boots as liable to forfeiture under the 66th section of the act of March 2. 1799. c. 128 [1 Story’s Laws, 631: 1 Stat. 677, c. 22], for the production of an invoice by the importer at the entry not according to the actual cost but below it. with the design to evade the duties.</p> <p>2. Plea, that the importer was the manufacturer of the goods, adjudged good.</p> <p>3. The 36th section of the act requires the importer in all cases to enter his goods at the actual cost, and verify his entry by oath, and to produce at the entry the original invoice and bill of lading; and by the 66th section, if the invoice thus produced is made not according to the actual cost, with a design to evade the duties or a part of them, the goods or their value shall be forfeited.</p> <p>4. The act of 1823 [3 Stat. 729] excepts from the act of 1799. the case of an importer who is the manufacturer of the goods, or who has obtained them otherwise than by purchase, and reqnires of him an invoice stating the true market value.</p> <p>[5. The case at bar distinguished from Wood v. U. S„ 16 Pet. (41 U. S.) 342.]</p> <p>[The cause was taken to the circuit court upon a writ of error, where the judgment was affirmed. Case No. 16,571.]</p>

[In error to the district court of the United States for the district of Massachusetts.] The original suit was commenced February 24, 1857, and was an information framed on the sixty-sixth section of the act of March 2, 1799, filed by the district attorney, to enforce a forfeiture of twenty-six cases of rubber boots, imported from Canada into the United States at Rouse’s Point, and there entered for warehousing and transportation to Boston.

<p>This was a libel of information, filed by the United States, against certain goods brought Into the port of Boston, in the British steamer Africa, and contained two counts; the first framed upon the 68th section of the revenue collection act (Act 1799, c. 22 [1 Stat. 677]): •“That every collector, &c., shall have full power and authority to 'enter any ship or vessel in which they shall have reason to suspect any goods, wares or merchandize, subject to duty, are concealed, and therein to search for, seize and secure any such goods, wares or merchandize; * * * and all such goods, wares or merchandize, on which the duties shall not have been paid, or secured to be paid, shall be forfeited.” And the second, upon the 24th section •of the same act: “That if any goods, wares and merchandize shall be imported or brought into the United States, in any ship or vessel whatever, belonging in the whole or in part to a citizen or citizens, inhabitant or inhabitants of the United States, from any foreign port or place, without having a manifest or manifests on board, * * * or which shall not be included or described therein, or shall not agree therewith, in every such case, the master or other person having the charge or command of such ship or vessel, shall forfeit and pay a sum of money equal to the value of such goods not included in such manifest or manifests, and all such merchandize not included in the manifest, belonging or consigned to the master, mate, officers or crew of such ship or vessel, shall be forfeited.”</p> <p>cited U. S. v. Certain Hogsheads of Molasses [Case No. 14,766].</p> <p>cited U. S. v. Three Hundred and Fifty Chests of Tea, 12 Wheat. [25 U. S.] 486.</p> <p>The libellant’s witnesses testified, that when the steamer came to her moorings in Boston, and before she was made fast, the master notified the revenue officers that there had been a robbery on board, and that no passengers were to land, until police officers were sent for, to make a search. No notice to this effect, however, was given to the passengers, though they were stopped from landing, and some of them seemed to expect a search. After the steamer was made fast, and before any passengers or baggage had landed, two of the passengers, named Salmon and Blanckensee. came to the purser, on the main deck, and the latter openly handed him a small parcel, which was afterwards found to contain twenty-six diamond rings, with the request to enter it on the ship’s manifest. This was done in the presence and hearing of a revenue officer, who stepped up to the parties, told them it was too late, and seized the parcel. It was further admitted, that Salmon and Blancken-see had also four large cases of jewelry on board, which were on the manifest, and were stowed with the cargo. The claimant introduced, as a witness, C. M. Salmon, the passenger who had charge of the rings, who testified that he left England in the Africa, pursuant to a written agreement with one Isaac Blanckensee, jeweller, of London, for the purpose of establishing the latter’s son, Julius Blanckensee, (his fellow-passenger,) in the jewelry business at Montreal; that the four cases were shipped by Isaac Blanckensee’s agents at Liverpool, before his (Salmon’s) arrival at that place, and that the twenty-six diamond rings arrived afterwards, late on the night before sailing, and the agents declined to put them on the ship’s manifest, as too late; that he took them on board, In his portmanteau; and being on his first absence from England, and a stranger to the usages of foreign custom-houses, he took the advice of certain fellow-passengers, whose names, he gave, to whom he showed the parcel, and directed it in the saloon, and in their presence, to Hill, Sears & Co., Boston, and that before the vessel’s. arrival at the wharf, he gave it to Julius Blanekensee to hand to the purser, from whom the purser soon after received it. He further stated that he had never made any concealment of this parcel, and that, with all his .goods, it was destined to Montreal, and was to be entered in bond at Boston.</p>

On the 3d December, 1831, an information was filed by the attorney of the United States, against twenty-three coils of cordage, three bolts of ravensduck. and four pieces of sail cloth, found on board of the ship Eliza. It appeared that they were the residue of a purchase made at Cronstadt, as was alleged, for the use of the vessel during the homeward voyage.

<p>Case No. 16,575.</p> <p>Distiller's License—Whex Necessakt—MANU-FACTURE OF VlNEGAR.</p> <p>[One who, in order to manufacture vinegar, makes a mash, such as is used for the production of spirits, boils the same in a still, from which the vapors pass into a tub containing water, in which the vapor is condensed, until a fluid containing 5 to 7 per cent, of spirits is obtained, and who does not use machinery capable of producing a higher per cent, of spirits, is not bound to take out a distiller’s license.]</p>

<p>Case No. 16,576.</p> <p>Customs Duties—Undervaluation—Market Price.</p> <p>[On a proceeding to forfeit goods as having been invoiced at less than their actual cost at the place of exportation, the market price at that place at the time is admissible as the surest test of the honesty of the transaction.]</p>

<p>Case No. 16,578.</p> <p>Internal Revenue—Forfeiture—Section 14 of the Act of June, 1866—Evidence— Knowledge or Intent.</p> <p>1. Where distilled spirits, which were being conveyed contrary to law, upon a truck, were seized, and also the truck and horses were seized, and all proceeded against to obtain a decree of forfeiture, and a decree by default obtained against the spirits, but a defence interposed for the truck and horses: Held, that in a trial for the forfeiture of the truck and horses, the decree of condemnation entered against the spirits, by default, was not conclusive evidence against the owner of the truck and horses that the spirits were being removed with intent to defraud the revenue.</p> <p>2. Knowledge or intent on the part of the owner of a conveyance used in transporting spirits subject to tax that are being removed contrary to law is not required to be shown in order to a forfeitu/e of such conveyance and by virtue of section 14 of the internal revenue act of 1866 [14 Stat. 151].</p>

<p>Case No. 16,579.</p> <p>Internal, Revenue — Forfeitures por Fraud — Intent—Illicit Sales op Beer—Extent op Forfeitures.</p> <p>1. Under section 9 of the internal revenue act of July, 1866 [14 Stat. 146], it is a necessary element of the frauds specified in it that there should be an intent to defraud, by evading the payment of the tax or duty imposed by law.</p> <p>2. Under said section, not only is beer proved to have been illicitly sold or intended for sale, without payment of the tax imposed by law, subject to forfeiture, but all the beer found in possession or custody of claimants, and the raw materials, fixtures, and appliances of the brewery are, by law, infected with fraud.</p> <p>The verdict of the jury was, that there was no cause of forfeiture; and an order of court was entered for the restoration of the property seized to the possession of the claimants.</p>

Certain distilled spirits, described in the information, were seized at Boston in this district, on April 27, 1867, and the original information was filed in the district court on May 15 following. [Case unreported.] The cause of seizure, as alleged, was that the spirits, in question were manufactured in the United States, and that having been so manufactured they were at the time of seizure, and had been for a long time before, subject to a tax imposed thereon, under the…

<p>Case No. 16,581.</p> <p>Internal Revenue—Informer—Special Treasury Agent.</p> <p>• A special agent of the government appointed to investigate a fraud is not an informer in respect to facts found in the ordinary and regular discharge of his duty.</p> <p>Cornelius Stagg filed a petition to share, as informer, in the forfeiture in this case, which was prosecuted under the internal revenue laws and resulted in favor of the United States. The petitioner’s rights were dependent upon the statute of 1866 (14 Stat. 145), which gave to the person who should first inform of the cause, matter or thing, whereby any fine, penalty or forfeiture shall be incurred, such share thereof as the secretary of the treasury should by general regulations provide, not exceeding one moiety, nor more than five thousand dollars; the informer to be ascertained by the court which shall have imposed the fine, etc. The petitioner alleged that he held an appointment as special agent of the treasury department, and that he came to Boston at the request of the collector of internal revenue for the Third district to investigate the fraud by reason of which the forfeiture was incurred, and while so employed he acquired information which led to the forfeiture and gave the information to the collector. The United States filed an answer, which amounted to a demurrer.</p>

[Appeal from the district court of the United States for the district of Missouri.] This was a proceeding in prize for the adjudication of… Held: possessed, and controlled by said insurrectionists, so in arms against said government of the United States; that said detachment, being so embarked, did proceed by way of the Mississippi river, and land in said state of Mississippi, and then and there penetrated into the country so occupied and controlled as aforesaid; that said…

<p>Internad Revenue — Stamps on Cosmetics Exported—Forfeiture—Construction of Statutes.</p> <p>A manufacturer of cosmetics in New York, having received an order from a customer at Havana, put up the goods and sent them, without any internal revenue stamp being affixed to any of the boxes, to the wharf of the Havana steamer, for transportation to Havana. The owners of the steamer gave a receipt for them. They were then seized by the government, and an information was filed to forfeit them, on the ground of their not having stamps on the boxes. The goods were not manufactured in the warehouses prescribed by section 28 of the internal revenue act of March 3, 1873 (12 Stat. 727), section 168 of the act of June 30, 1864 (13 Stat. 296). Held that, under section 167 of the act of June 30, 1864. as amended by section 1 of the act of March 3, 1865 (13 Stat. 482), the goods should have been stamped, although they were intended for exportation, and, not having been stamped, were liable to forfeiture.</p> <p>[Cited in Alkan v. Bean, Case No. 202.]</p>

<p>Case No. 16,585.</p> <p>Internal Revenue — Forfeiture of Spirits — What Propertt Forfeited.</p> <p>1. Tlie spirits forfeited by section 96 of the act of July 20, 1S68 (Rev. St. § 3456 [15 Stat. 164]), as a penalty for the offenses therein mentioned, are the spirits owned by the distiller, rectifier or wholesale liquor dealer, or in which he has any interest as owner at the time of the discovery of his offense.</p> <p>2. The failure of a rectifier to cause spirits to be gauged and stamped, as required by the 25th section of the act of July 20, 1868 (Rev. St. § 3320). is punishable by the 57th section, not by the 96th section, of this act (Rev. St. § 3456).</p> <p>[3. Cited in Coffey v. U. S., 6 Sup. Ct. 435, 116 U. S. 433. as one of the instances in which suits of this character have been brought originally in the circuit court.]</p> <p>[The libel was afterwards dismissed by the court, and thereupon the case was taken by appeal to the supreme court, where the judgment of this court was affirmed. 95 U. S. 571.]</p>

<p>Case No. 16,587.</p> <p>Violation oe Customs Laws — Forfeitures — Fraudulent Invoice.</p> <p>[1. The fact that the appraisers have materially raised the invoice value of imported goods is prima facie, but not conclusive, evidence of undervaluation in a subsequent proceeding to forfeit the goods on the ground of fraudulent invoice.]</p> <p>[2. If the fact of a material undervaluation is established, it will be presumed that it was done with intent to defraud the revenue, in the absence of clear and credible testimony excusing such undervaluation.]</p> <p>This was a libel of information filed to forfeit for undervaluation two hundred quarter boxes, one hundred and twenty-five fifth boxes, and eleven hundred and forty tenth boxes, of cigars, imported in the brig Lyra in March last, by Alvarez Hein, manufacturer. The cigars were invoiced at $2,789, but on appraisement their value was raised in the average 19 per cent., whereupon this information was filed. The testimony was conflicting as to what was the actual market price of such cigars at Havana, whence they were imported. at the time of importation.</p> <p>The jury retired, and after a considerable time returned into court, saying that they were unable to agree, and, after some discussion, they were discharged.</p>

<p>Case No. 16,586.</p> <p>■Practice in Internal Revenue Cases—Bill or Particulars.</p> <p>Where an information on behalf of the United States had been filed, for violation of the internal revenue law, as entries upon the books and other offences, and a quantity of corn, spirits, and other property seized, held, that the information filed being vague, claimant of the property was entitled to a bill of particulars.</p>

In admiralty. Libel in rem against merchandise seized for violation of the revenue laws. Josephus II. llurchie appeared and' claimed the property, and answered denying any illegal importation and any intent to defraud the revenue.

<p>Case No. 16,591.</p> <p>Forfeiture — Goods Concealed on Board of a Vessel—Seizure bt Inspector.</p> <p>1. On the arrival of a steamer at New York from France, two inspectors of customs were on board after all the passengers and their baggage had been landed. From some remarks which excited suspicion, they went to a state room which was looked, and in which was the barber of the vessel. Under a berth in the room they found two trunks containing fringes, braid, &c.. without any articles of personal baggage. The trunks were marked with the name of the purser of the ship, but without his authority or knowledge. They were claimed by a man who occupied the room, and who had come in the ship, giving his services as second steward for his passage, receiving no wages and not being entered on the crew list. He had no invoice of them. He had made no declaration of their contents as dutiable, and they were not entered on the manifest of the ship. The inspectors seized the trunks. A libel was filed to forfeit the trunks and their contents, alleging a seizure by the collector. It was urged in defence, that the trunks were not concealed, and that the seizure was not made by the collector: Held, that, under the 68th section of the act of March 2. 1799 (1 Stat. 677), goods, subject to duty, found concealed on board of a vessel, are subject to forfeiture, and all that the government is bound to show, to make out a prima facie case for forfeiture, is that the goods were subject to duty, were searched for, were found concealed, and were seized by a proper officer.</p> <p>2. The contents of these trunks were found concealed.</p> <p>3. Under the 2d section of the act of July 18, 1866 (14 Stat. 17S), the inspectors were authorized to seize them, and the libel might be amended acco-dingly.</p>

This was an application for the discharge of certain property under seizure, upon giving bond for its value. The property consisted of a still, a worm, a mash-tub, and other apparatus used for distilling, which had been seized for an alleged violation of the internal revenue laws.

<p>Case No. 16,592.</p> <p>Judgment against Stipulators in Case of Forfeiture—Defences by Stipulators.</p> <p>Certain goods having been proceeded against as smuggled, the owner appeared as claimant and gave stipulation for value in a sum agreed upon between the claimant and the district attorney. Afterwards a final decree was entered against the claimant on default. On return of the order to show cause against the stipulators why execution should not issue against them for the amount of the stipulation, held, that they were not entitled to a reduction of the amount of the stipulation on the ground that the claimant after the giving of the stipulation and before the delivery of the goods to her had paid the duties, and that the amount of the stipulation was for the estimated foreign value of the goods with the duty added; nor on the ground that while the goods were under seizure, and before the stipulation was given, they were injured by being carelessly handled by persons in the employ of the collector and by visitors who. by their consent, had access to them, and that the stipulation was given for a larger amount than the true value of the goods at the time it was given.</p>

This was an action to recover duties alleged to he due to the United States on an importation of “Dutch metal,” made by the defendant [Sigismund Ullman], and entered at the custom house at New York, by him, on the 29th of March, 1809. The value of the importation was $1,007, in gold. The collector exacted from the defendant a duty thereon of 10 per cent, ad valorem, amounting to $106.70, in gold, which was paid by him, and the goods were delivered to him.

Two indictments were found against the defendant [Rudolph W. Ulrici], the nature of which appears in the following opinion given by the circuit justice, on demurrer, at the September term, 1875. The opinion was orally pronounced, and is reported from the short-band notes taken at the time.

<p>Case No. 1*6,595.</p> <p>Customs Duties—Withdrawal fkomWauehouse.</p> <p>[The 10 per centum additional duty imposed by Act March 14, 1866, on goods withdrawn from the warehouse after one year from their importation, is also to be assessed upon goods never withdrawn, but sold to satisfy duties.]</p>

<p>Case No. 16,598.</p> <p>Union Pacific Railkoad Company — Suits by" United States — Act March 3, 1S73—Consti-tutional Law — Land Grants — Riohts of' Shareholders.</p> <p>1. The provisions of the 4th section of the act-of March 3, 1873 (17 Stat. 509), directing a suit in equity to be instituted, in the name of the United States, against the Union Pacific Railroad Company and others, create different rules for the conduct of that suit from those by which ordinary suits are governed. Among such differences are the following: (1) Said' suit may be brought in any circuit court of the-United States, and all the parties may be made defendants in one suit. (2) Decrees in said suit may be entered and enforced against any one or more parties, without awaiting a final-determination as to other parties. (3) The writs of subpoena issued against the defendants therein may run into any district of the United States, and be served by the marshal upon persons not residents of the district in which the-suit is brought, and not found therein. (4) Such writs may be served upon representatives of deceased parties who are not residents of the district in which the suit is commenced, and whose testators were not such residents.</p> <p>2. The powers and authorities given by the-said act to the attorney-general are exceptional, and are limited, in their exercise, to the cases and the matters in that act specified, viz.: _ (1) To a suit in favor of the United States against the Union Pacific Railroad Company, and ail persons who have subscribed for or received capital stock in said road which has not been paid for in full in money. (2). To a suit against persons who may have received, as dividends or otherwise, portions of the capital stock of said road, or the avails thereof, or other property df the said road, unlawfully and contrary to equity. (3) To a suit against persons who may have received, as profits or proceeds of contracts for the construction or equipment of said road, or other contracts therewith, money or other property which ought, in equity, to belong to said corporation. (4) To recover money, bonds, &c., which ought, in equity, to be paid or accounted for to the said company or to the United States.</p> <p>3. For these causes, except the last, which is not set up in the bill, there is no right of action in the United States, nor can any be given by an act of congress. Such rights of action are the property of the railroad company. In substance and in form, the proceeds of the same belong to the corporation and not to the United States, or any other creditor, and suit to recover the same must be brought in the name of the railroad company.</p> <p>4. Congress cannot create damages to be recovered by the United States by suit, or cause acts to be wrongs-to the United States which are, in their nature wrongs to another.</p> <p>5. The United States cannot convert to itself the property of another, by its own declaration, or its own authority; nor can it maintain an action, in its own name, against A., to recover a debt which he may owe to B.</p> <p>6. The gifts of lands and bonds made by the United States to the Union Pacific Railroad Company were not in the nature of a trust, but were made absolutely, without condition precedent.</p> <p>[Cited in Re Pacific Ry. Com’n, 32 Fed. 266.]</p> <p>7. Redress for alleged fraudulent acts on the part of the directors and managers of the Union Pacific Railroad Company, in breach of their duty to the shareholders, cannot be obtained in a suit brought by the United States, but must be obtained in a suit brought by the corporation, or, if it refuses to sue, by a shareholder.</p> <p>[The case was taken on an appeal to the supreme court, where the decree of this court was affirmed. Justices Swayne and Harlan, dissenting. 98 U. S. 569.]</p>

<p>Case No. 16,597.</p> <p>Monet Paid under Mistake of Fact—Laches— United States as Plaintiff.</p> <p>1. A party entitled to recover money, paid under a mistake of fact, is bound to give prompt notice of the discovery of the mistake to the party to whom the money was paid.</p> <p>2. Where the party to whom money is so paid, sustains damage in the loss of his remedy over against another party, .through the negligence of the party to whom he is liable in failing to give notice of the discovery of the mistake, he is thereby discharged from liability.</p> <p>[Cited in U. S. v. National Park Bank of New York, 6 Fed. 854.]</p> <p>3. The action being equitable, the United States suing as plaintiff in such action is bound by the same equitable rules as any other plaintiff in such an action and cannot recover, if throúgh its failure to give notice of the discovery bf the mistake the defendant has lost his remedy over.</p> <p>4. In such an action by the United States, where it appeared that the assistant treasurer at New York gave notice of the discovery of the mistake, and demanded payment, but after-wards withdrew the notice and demand, held, that assuming that he was the proper officer to give such notice he was the proper person to withdraw it, and the defendant having relied on such withdrawal and thereby lost his remedy over was discharged from liability.</p> <p>[The judgment was affirmed in the circuit-' court upon a writ of error. Case unreported.]</p>

A petition, or information, under oath, is filed in this court by Samuel B. Hall and John W. Morse, who describe themselves as citizens of the United States and of the state of Iowa, making the Union Pacific Railroad Company defendant or respondent.

[This was a petition by Hall and others for a writ of mandamus against the Union Pacific Railroad Company to compel it to operate its road according… Held: and its books and records kept, and that all its officers are residents of said city, except its president, who resides in the state of New York; that it has no other office or place where its legislative corporate power is exercised; that its managing office, where the power and authority of its managing agents, to wit:…

On motion for a peremptory writ of mandamus. This is a proceeding by mandamus, to compel the Union Pacific Railroad Company to operate its road as a continuous line, by running its regular through trains to and from the Iowa shore of the Missouri river, at a point within the limits of Council Bluffs, in the state of Iowa, and which point the rela-tors claim to be the eastern terminus of the road.

<p>Case No. 16,602.</p> <p>Violation op Postal Laws — Express Company Carrying- unstamped Letter op Advice.</p> <p>1. It is not a violation of the post office laws for an express company to carry with a money letter or package, an unstamped letter of advice concerning said money.</p> <p>2. It was the intention of congress, in the act of March 3, 1845 [5 Stat. 732], to permit an unstamped letter of advice relating merely to the article shipped to be transmitted with such article.</p>

<p>Case No. 16,603.</p> <p>Duty on Telegraph Cable—Enumerated Articles.</p> <p>1. Telegraph cable, composed of iron-wire and gutta-percha, iron being the material of chief value, is embraced in the words of the twenty-second section of the tariff act of March 2, 1861 (12 Stat 192), and the thirteenth section of the act of July 14, 1862 (12 Stat. 557), as a manufacture, not otherwise provided for, of which iron is the component material of chief value.</p> <p>[Distinguished in Cohen v. Phelps, Case No.</p> <p>2. It is, therefore, not embraced within the provision of the twentieth section of the act of August 30, 1842 (5 Stat. 565). which provides, that, on non-enumerated articles, manufactured from different materials, the highest duty shall be assessed which, is chargeable upon any of their component parts.</p> <p>3. Such telegraph cable, therefore, was held to be chargeable with thirty-five per cent, duty, notwithstanding the- fact that gutta-percha was chargeable with forty per cent.</p>

[This was a claim by Juan Manuel Vaca and Juan Felipe Peña for Los Putos, 10 square leagues in Solano county, granted January 27, 1843, by Manuel Micheltorena to said Vaca and Peña- The claim was filed February 20, 1852, rejected by the commission November 15, 1853, and confirmed by the district court July 5, 1855, and the decree was affirmed by the United States supreme court. 18 How. (59 U. S.) 557.]

<p>Case No. 16,605.</p> <p>California. Land Grants—Decrees of Confirmation—Res Judicata—Surveys.</p> <p>[After a decree confirming a grant according to described boundaries, and the dismissal of an appeal therefrom, the court has no authority, in determining questions relating to the survey, to assume the invalidity of the original grant.]</p>

<p>[Claim of Mariano G. Vallejo to the Pina ranch, in Sonoma county.]</p>

William S. Dunn at the October term, 1868.. of the United States district court for the district of Kansas, was indicted for robbing the United States mail, and was duly arrested therefor by the marshal of the district on the 4th of April, 1870.

Indictment against the prisoner, as mate of the Lucy, he not being owner, for casting away and destroying that vessel on the high seas, the said vessel being the property of Aug. Masol, a citizen of the United States. The evidence, though circumstantial, was very strong against the defendant; and it also appeared, from the testimony, that the plan for destroying the vessel, was laid before she sailed, by the owner himself.

<p>Case No. 16,609.</p> <p>Impeachment op Witnesses—Bad Character— What mat be Shown.</p> <p>1. To discredit a witness it is not competent to prove general bad character, disconnected with his veracity.</p> <p>[Cited in U. S. v. Dickinson, Case No. 14.958: Teese v. Huntingdon, 23 How. (64 U. S.) 12.]</p> <p>[Cited in brief in Bishop v. Wheeler. 46 Vt. 412; Fletcher v. State, 49 Ind. 132, 133; Hamilton v. People. 29 Mich. 187; Hillis v. Wylie, 26 Ohio St. 577.]</p> <p>2. The proper inquiry is. what is the general character of the witness, where he resides, for truth.</p> <p>[Cited in Teese v. Huntingdon, 23 How. (64 U. S.) 12.]</p> <p>[Cited in Frye v. Bank of Illinois, 11 Ill. 379; Holbert v. State. 9 Tex. App. 219; Kennedy v. Upshaw, 66 Tex. 453, 1 S. W. 312.]</p> <p>3. And the witness, under examination, may be asked, from your knowledge of his general character, would you believe him under oath.</p> <p>[Cited in Teese v. Huntingdon, 23 How. (64 U. S.) 12.]</p> <p>[Cited in Holbert v. State, 9 Tex. App.- 219.]</p> <p>4. Particular facts, of a criminal nature, cannot be proved to discredit the witness. The inquiry must be general.</p>

<p>This action was brought to recover the sum of twenty-two thousand and five hundred dollars, alleged to be due the government from the defendant [N. B. Yan Slyko] for taxes upon illicit spirits manufactured at the Middleton distillery, near Madison, Wis., between September 3, 1873, and April 24, 1874. The complaint alleges that the defendant was the owner and proprietor of the distillery and distillery premises at the time of the manufacture of the spirits, and interested in the profits of such manufacture with one Alexander L. Rogers and Charles H. Bunker, who had the immediate control and management of the business. The defendant admitted that he held the title in fee to the premises, but denied that he was the proprietor or interested in any way in the manufacture of the liquors. The evidence was, that prior to 1873 the premises were owned by one Jacob Lentz, and that Lentz, and subsequently Lentz & Rogers, carried on the business; that the defendant, as president of the First National Bank of Madison, advanced money to Lentz & Rogers, and discounted their paper to a large amount to enable them to carry on this and other branches of business, and that defendant, to secure these advances, took a mortgage from Lentz on the distillery premises, which was foreclosed, and the premises bid in by the defendant. After this the distillery was idle for some months, until on the 11th of August, 1873, the defendant let the real estate to Rogers, who entered again into the manufacture of spirits, Rogers obtaining a license from the government to carry on the business until May 1, 1874, and defendant, as owner of the premises, gave his consent as required by law that the premises be used for that purpose, and stipulated that the lien of the United States for taxes and penalties should have priority of his rights, and that in case of forfeiture of the premises the title should vest in the United States. From September, 1873, until April 24, 1874, Rogers, in connection with one Charles H. Bunker, whom he took in as a secret partner, manufactured a large quantity of illicit wines and spirits, which they took to Madisofi, where they were rectified under the immediate management of Bunker, without the payment of the taxes. On April 24, 1S74, the distillery and distillery apparatus were seized by the officers of the government, and they, as well as the real estate, forfeited to the United States. During all this time the defendant, as president of the bank, continued to advance money to Rogers and to discount his paper, to enable him to carry on the business, in the hope of getting back, as he alleges, some of the amount previously advanced to Rogers and to Lentz & Rogers. The attorney for the government claimed that such money was advanced as partner in the business and as proprietor of the distillery; and claimed, also, that if the evidence did not establish this fact, and that the defendant was interested- in the profits of the manufacture, that he was still liable for the taxes as proprietor of the premises under section 3251, Rev. St., which provides as follows: “Every proprietor or possessor of, and every person in any manner interested in the use | of any still, * * * shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom.” I</p>

Debt upon the official bond of John Hall, a regimental paymaster. The defendant [Nicholas B. Van Zandt] and one David Ott were his sureties.

Indictment for retailing spirituous liquors. The first process was a summons to show cause why an information or an indictment should not be filed. Upon this summons the defendant [Peter Veitch] did not appear, and' his default was recorded. The indictment was found at July term, 1801. and a capias issued returnable to October term. 1801. contended that a capias was not the legal process.

[This was a bill of interpleader filed by the United States against Washington R. Ver-milye and others, composing the firm of Ver-milye & Co., and the Adams Express Company.]

<p>Indictment [against Joseph Venable] for passing counterfeited coin, contrary to Act Va. Dec. 19, 1792, p. 249, whereby the passing of such coin, “in payment,” is punishable with death.</p>

<p>Case No. 16,618a.</p> <p>Shipping — Sale op Licensed Coasting -Vessel to Foreigner—Forfeiture.</p> <p>[The sale of a licensed schooner to a British subject, followed by an order to the master to make delivery to him, and the presentation of a request for clearance by the captain, which recites the sale, and is signed and sealed by the British consul, though the delivery is not yet actually made, is a “transfer,” within the meaning of Act Feb. 18, 1793 <1 Stat. 305;, for licensing coasting vessels, which provides that any licensed vessel transferred to a person not a citizen of, and resident within, the United States shall not be forfeited.]</p> <p>This was a libel in rem by the United States against the schooner Vermont for violation of the act of February 18, 1793, for licensing vessels in the coasting trade.</p>

<p>Case No. 16,620.</p> <p>Fraudulent Register — A Vessel Wrecked at Sea is-not “a Vessel Wrecked in the United States”—Act Dec. 23, 1852 (Rev. St. U. S. § 4136); Act July 18, 1S66 (Id. § 4189) — Evidence.</p> <p>1. A Swedish vessel, abandoned at sea, was picked up by a steamer and towed into New York, where she was libelled for salvage and sold. Her purchaser, 6., put repairs on her to the amount of three-fourths of her value when repaired, and thereafter procured from the secretary of the treasury an American register for her as being '“a vessel wrecked in the United States,” under the act of December 23. 1852 (Rev. St. U. S. § 4136 [10 Stat. 149]). Subsequently a libel was filed against her on behalf of the United States to forfeit her under the 24th section of the act of July 18, 1866 (Rev. St. ü. S. § 4189 [14 Stat. 184]), as not being entitled to the register, such register being obtained or used knowingly and fraudulently. Held, that the construction put on the act of 1852 by the treasury department, and long acquiesced in, should not now be set aside unless convincing reason be given against such a construction.</p> <p>2. No such reason appeared.</p> <p>3. The vessel was not “a vessel wrecked in the United States,” and was not entitled to the register which was obtained for her.</p> <p>4. The fact that the register was obtained on a false representation of the circumstances attending the wreck of the vessel, made by the agent of G., and supported by a forged protest, was evidence that the register was fraudulently obtained.</p> <p>5. The production of the forged protest and other papers from the files of the New York custom house, with proof that they were the only documents on file there in connection with the issuing of the register, and the fact that G., the owner, when examined as a witness in the cause and shown the papers in question, did not intimate that they were not the papers used in obtaining the register, was sufficient evidence that they were the papers presented to the secretary of the treasury, and on which the register was obtained.</p>

The defendant had been committed' by the district judge, on a charge of high treason against the United States, and on the return to a habeas corpus, issued under the act of Pennsylvania (VoL 2, Dali.

Assumpsit on an account annexed and for money had and received.

[Appeal from the district court of the United States for the district of New Jersey.] A libel or information was filed against the Virgin, for receiving from the Hunter, a vessel bound from a foreign port to the United States, and before her arrival at her port of discharge, and before she was legally author-ised to unlade the same, a certain quantity of rum, with intent to defraud the revenue. [See Case No. 15,428.] The owners of the Virgin put in their claim, and denied…

<p>Case lío. 16,627.</p> <p>Perjury—Oath before United States Commissioner-Qualification as Bail—Authority of Commissioner to Take Bail—Fugitive Awaiting Warrant of Removal.</p> <p>1. On a complaint before O., a United States •commissioner in New York, against S., for having committed an offence against the United States, cognizable by the courts of the District of Columbia, S. was committed by O. to await the issuing by the district judge of a warrant for his removal tor trial to such district. Before such warrant was issued, V. went before O., to justify as bail for S., and made oath before him to a deposition concerning his property, which was signed by him and entitled in the proceeding against S. Afterwards S. was released by the district judge on bail, on a bail bond signed by V. It did not appear that the deposition of V. was exhibited to the district judge, or that any further steps were taken before O. after the deposition was made. V., having been indicted for, and convicted of, perjury, in making, in such deposition, statements of material matter, which he did not believe to be true, moved for a new trial, on the ground that the deposition was not made in a case “in which a law of the United States authorizes an oath to be administered,” within section 5392 of the Revised Statutes. Held, that the motion must be denied.</p> <p>[Cited in U. S. v. Brawner, 7 Fed. 88; U. S. v. Rogers, 23 Fed. 661.]</p> <p>2. Up to the time of the issuing of a removal warrant, a commissioner under whose commitment a prisoner is held, has jurisdiction to entertain an application for his release on bail, and to administer an oath to a person who tenders himself for justification as good bail for such prisoner.</p>

<p>Case lío. 16,626.</p> <p>Confiscation Act of 1861.</p> <p>[The confiscation act of July 13, 1861 (12 -Stat. 255), did not embrace choses in action, such as bonds, stocks, etc., or money.]</p>

Indictment [against Caspar Wagner] for stealing three fence-rails, the property of some person or persons to the jury unknown. contended that the fence was part of the freehold, and therefore the defendant was only guilty of a trespass.

<p>Case No. 16,629.</p> <p>Joint Indictment—Competency or Witness.</p> <p>If two be indicted jointly for assault and battery, the wife of one of them cannot be a witness for the other, although they sever in their pleas.</p>

<p>Case No. 16,631.</p> <p>Extortion Defined—Register of Land Office.</p> <p>1. Extortion is the unlawful taking by any officer, by color of his office, of any money or thing of value that is not due him, or more than is diie, or before it is due.</p> <p>2. The register of a land office cannot lawfully act as attorney for any applicant for a patent for mineral land, whose application is filed, and the proceedings on • which • are to be conducted before him, and in his office.</p> <p>3. If a register undertakes to act as attorney for an applicant in procuring a patent, and receive from him a gross sum, and this sum is taken as well for the execution of his official duties as doing some other things relating to procuring the patent, and no specified portion of it is taken as compensation for the one or the other, and the sum so taken is in excess of the fees allowed him by law, such taking of the money is extortion</p> <p>NOTE [from S Chi. Leg. News, 313], The jury could not agree, and were discharged. They stood six for acquittal, and six for conviction.</p>

[This was a claim by Robert Walkinshaw for Posolmi, including El Pósito de las Ani-mas, in Santa Clara county, granted February 15, 1844. by Juan B. Alvarado and Manuel Micheltorena to Lope Yfiigo. The claim was filed March 23, 1852, and confirmed by the commission November 20, 1855, and the appeal was dismissed February 16, 1857.]

Indictment [of Edward Walker] for stealing wood. The evidence was that the wood was delivered to the prisoner (or rather suffered to be taken) by the owner’s servant, a slave.

This was an action brought to recover sixteen penalties of $50 each of the defendant [J. F. Walsh] for making, preparing and selling lucifer matches, without stamping the same, contrary to the internal revenue act of July 13, 1866 (14 Stat. 144). The action was commenced by filing the complaint on May 23, 1867, and on the same day an order for the arrest of the defendant was allowed.

<p>Case No. 16,634.</p> <p>Information fob Misdemeanors.</p> <p>Misdemeanors may be prosecuted in the national courts by information.</p> <p>[Cited in U. S. v. Ebert, Case No. 15,019; U. S. v. Maxwell, Id. 15.750. Followed in Ü. S. v. Ronzone, Id. 16,192. Cited in U. S. v. Block, Id. 14,609; U. S. v. Reilley. 20 Fed. 46; Ex parte Wilson, 114 U. S. 425, 5 Sup. Ct. 939.]</p>

On motion by the defendant [Thomas Walsh] to quash the second count in the indictment, the first count having been abandoned by the government.

This was an indictment for murder. The defendant was a white man, and the person killed was also a white man. The homicide was committed on the reservation of the Kansas tribe of Indians, and in the county of Lyons. This reservation was provided by a treaty with the tribe, and was occupied by it. It was a small tract, nine miles in width, by fourteen in length.

<p>Case No. 16,638.</p> <p>Receiver of Public Moneys—Liability of Sureties.</p> <p>L The sureties of a receiver of public monies aré responsible for any neglect of the receiver which appertains to the duties of his office.</p> <p>2. But. the government cannot pay an extravagant sum, for the performance of the labor neglected by the receiver, and charge his sureties with such sum.</p> <p>3. The government in such a case is entitled to recover what shall be a reasonable compensation for the labor performed.</p>

This was a bill in equity brought under the following circumstances: Benjamin F.-Bourne, on the 14th of April, 1814, was appointed a purser in the navy of the United States, and gave a bond to the United States, with Abel Jones and Stephen Price, as sureties, in the penalty of $10,000, for the faithful performance of the duties of his office, in the usual form.

The defendants, viz. [Henry R.] Warner, as captain, [Cyrenius H.] Wishue as first mate, [Raymo] Demond as second mate, and [John] Kirby as wheelsman of the steamboat Chesapeake, then navigating Lake Erie, were-; jointly indicted for manslaughter, under the i 12th section of the act of congress of the 7th of July, 1838, entitled, “An act to provide for the better security of the lives of passengers, on board of vessels propelled in whole or in part by steam.” 5 Stat. 304.

The prisoner [Henry Warr] was arrested under section 10 of the treaty between the United States and Great Britain concluded at Washington August 9, 1842.

This was an action of assumpsit for the recovery of §276.95 alleged to he due from the defendants, as taxes - on manufactures under the internal-revenue act of June 30, 1864, and the case was submitted upon an agreed statement of fact. The defendants were the manufacturers of woollen goods. They bought wool, spun it into yarn, dyed or bleached the yam, and then wove it into fabrics, such as shawls and webs for Bal-moral skirts.

Indictment [against William Wary] for resisting Clement Venable in the execution of his duty as a constable, in serving a warrant from Samuel N. Smallwood, a justice of the peace. The justice swore that he had searched the papers among which it was probable that the warrant would be filed, but if he had had more time to search he thought it probable it could be found.

<p>Case No. 16,646.</p> <p>Mandamus to Municipal Corporation.</p> <p>1. A writ of mandamus is the proper process to-compel the corporation of Washington to pay to the county treasurer one half of the expense of erecting a bridge over Rock creek, according to the 11th section of the act of congress of the 1st of July, 1812 [2 Stat. 773].</p> <p>2. The levy court is authorized by the act to ascertain, conclusively, the sum required for the rebuilding of the bridge.</p> <p>I cannot find that this case was ever entered upon the records or the minutes of the court: the petition for the mandamus, the answer to the rule to show cause, and a note of the opinion of the court are among the papers in No. 45, petition docket of June, 1819.</p>

This was an action of assumpsit, for money liad and received, founded on the following facts. One Susannah Brown, the wife of Jeremiah Brown, had applied for, and obtained, a pension, in the name, and as widow, of Flood, her former husband, who was a revolutionary soldier.

The defendant in this case was arrested on the 1st of May, 1829, in Philadelphia, by a warrant issued at the instance of the United States, upon an affidavit made before a justice of the peace in Washington, D. C., by Mr. Amos Kendall, who, on the 23d of March, 1829, was appointed to the office of 4th auditor in the place of the defendant, who was sent for trial to Washington, by a warrant issued by Judge Hopkinson, under the 33d section of the judiciary act of 1789.

<p>This was a habeas corpus issued by Judge Dunlop [on the application of John Rush], and directed to an officer [B. T. Watson], commanding him to have the body of John H. Rush before him on a certain day, at 12 o’clock m. The officer returned to the writ that he held Rush as a deserter from the ship Pennsylvania, and for no other cause. The enlistment of Rush was made under the 1st section of the act of congress approved March 2d, 1837.</p> <p>claimed his discharge upon the ground that the government had no right to enlist Rush under the act, not having the consent of his mother to enlist him for the term for which he was enlisted.</p> <p>The act of congress authorizes the government to enlist boys not being under 13, nor over 18 years of age, with the consent of their parents or guardians, until 21 years of age, and to employ other persons for a term not exceeding 5 years.</p> <p>maintained that the government had a right, by the words “other persons,” to enlist boys under 13 or over 18 years of age without the consent of their parents or guardians; that the contract between Rush and the government was made when Rush was 18 years old, and was a valid contract.</p>

<p>This was an indictment found under the 45th section of the. internal revenue act of July 13, 1866 [14 Stat. 163], and charged the defendants [Ethan L. "Watson and others], in substance, with aiding and abetting in the concealment of thirteen barrels of distilled spirits, which had been removed from a distillery to a rectifying establishment which was not a bonded warehouse. The punishment for the offence was a fine of not less than $200 nor more than $1,000, or imprisonment for not less than three -nor more than twelve months. The minutes of the court showed that, the indictment being pending therein, a trial of the indictment was, on the 10th of June, 1868, ordered on the motion of the district attorney; that on that day twelve jurors, whose names were set forth in the minutes, were sworn in the ease; that the case was then adjourned to the next day; that on the next day, June 11th, the cause was called, and that, by reason of the illness of the district attorney, and the absence of witnesses for the United States, the trial was adjourned, and the jurors em-panelled therein were continued until the 19th of June following; that on the 23d' of June following, the trial being resumed, the assistant district attorney moved that the trial go off for the term, owing to the illness of the district attorney and the absence of witnesses for the prosecution; and that the court thereupon directed a juror to be withdrawn, and the trial was accordingly postponed for the term. The indictment being called up again for. trial, the defendants objected to any further or second trial, and moved for the discharge of the defendants and of their bail, on the ground that the above proceedings, set forth in the minutes of the court, were equivalent in law to an acquittal of the defendants on a trial of the indictment. The motion was made on the minutes of the court.</p>

<p>Case No. 16,653.</p> <p>Legacy Tax — Converted Real Estate — Cox STRUCTION OF STATUTES.</p> <p>1. An executor was directed to sell certain designated parcels of real estate belonging to the testatrix “and convert the same into cash,” and “out of the proceeds thereof to pay any debts I may have, and the above-named legacies,” and in pursuance of such provision of the will, the executor sold the property referred to. EeltL, that such legacies are not subject to the tax or duty imposed by section 111 of the internal revenue act of July 1, 1862 [12 Stat. 485], upon legacies arising from personal property.</p> <p>2. In limiting the scope of the law to legacies arising from personal property, the inference is irresistible that it was intended to exempt such as were payable from the proceeds of real estate.</p> <p>3. The courts of the United States are not at liberty by construction or legal fiction to include subjects of taxation, not within the terms of the law.</p> <p>[Cited in State v. Pullman’s Palace Car Co., 64 Wis. 101, 23 N. W. 873.]</p>

This was a motion by the district attorney for leave to enter a nolle prosequi on the indictment in this case, which was one for the violation of provisions of the internal revenue laws relating to distilled spirits. [See Case No. 16,651.]

On Saturday last, the 23d May, Mr. Dallas, after reading the affidavit of one M’Knulty, proving that he purchased the gazette annexed to it, at the office of the defendant, moved for a rule upon the defendant to show cause, on this day, why an attachment should not issue against him for a contempt of the court in publishing in his gazette a paper reflecting upon William Duane, in a cause between Duane and Levi Hollings-worth; the said cause then, and yet pending in this…

<p>Case No. 16,655.</p> <p>Minister of the United States—Payment—Ratification—Answer to Interrooa-tori es—Contempt.</p> <p>W., who was minister of the United States at Brazil, received from the government of Brazil a sum of money in settlement of a private claim, and, having paid over a less sum to the United States, a suit was brought against him by the United States to recover the difference. W. set up, as a defence, that the difference had been paid by him to parties in Brazil by agreement of the party interested, and that such action of his in the matter had been communicated by him to the United States, through the then secretary of state, and ratified by the United States. Interrogatories were put to W., as to the persons to whom such payment was made, and he having answered that such payment was made to “certain Brazilians,” a motion was made, by proceedings for contempt, to compel fuller answers which should disclose the names of the Brazilians. Held, that, as the defendant’s answer to the complaint did not disclose the names, and as the defence set up in such answer was based upon alleged communications between him and the department of state, in which the names of the Brazilians referred to were not disclosed, the disclosure of their names was irrelevant to the issue, not important to the defence, if any, of the defendant, and not material to the cause of action set forth by the plaintiffs.</p>

[Error to the district court of the United States for the district of Massachusetts.] The original action [against Ignatius Web-ber, Jr.] was debt for §1,000, the penalty provided by the 30th section of the collection law [of March 2, 1799 (1 Story’s Laws, 598; 1 Stat. 649)], for not making the report required thereby within twenty-four hours after arrival of any vessel from a foreign port

<p>[This was a claim by Charles M. Weber for Campo de los Franceses. Claim filed May 31, 1852, confirmed by the commission April 17, 1855.]</p>

This was a suit brought by the United States against Captain Webster, a disbursing officer in the quartermaster’s department of the army, to recover a balance of money alleged to be remaining in his hands, and for which he had not accounted.

In 1844; the legislature of Pennsylvania passed a tax law, by which they enacted that “all real estate, to wit: houses, lands, lots of ground and groundrents, mills and manu-factories of all kinds, furnaces, forges, bloom-eries,- distilleries, sugar-houses, malt-houses, breweries, tan-yards,- fisheries and ferries, wharves, and all other real estate not exempt by law from taxation,” should be valued and assessed and subject to taxation for “state and county” purposes.

This action was brought to recover a balance due from the defendant, as a collector of the excise duties. The defendant was an active officer, in resisting the opposers of the excise law, in the western counties of Pennsylvania, and in consequence of his activity, had his house burnt by the insurgents, and suffered other injuries to his property.

The prisoner [C. P. Wells] was indicted at this term of the court for passing counterfeit treasury notes.

Debt on the official bonds of the defendant as navy agent for the port of Portsmouth, in this district. The declaration in each case was in the usual form as at common law. The bond in the first suit was dated the 25th of August, 1857, and in the second the 24th of May, 1858. The suits were against [Henry F.] Wendell as principal, and the others [Daniel Marcy, Richard Jenness, Thomas E. Oliver, and Albert E. Blaisdell] as sureties in said bonds.

<p>Case No. 16,668.</p> <p>Slave Trade — Receiving Negroes on Board-Criminality of Subordinates—Constraint as Excuse.</p> <p>1.. Under the fourth section of the act of May 15, 1820 (3 Stat. 600), in regard to the slave trade, the offences prohibited may be committed by any citizen of the United States, on board of any vessel, whether foreign or American.</p> <p>2. Under that section, it is an offence to receive negroes on board of a vessel, from persons who have seized them and brought them to the vessel’s side, in violation of the law-, and any person of the vessel’s company, on board of the vessel, who is competent to commit a crime, commits such offence by voluntarily receiving, or actually participating in the reception of, the negroes on the vessel, with the intent to make them slaves.</p> <p>3. Pacts and circumstances stated which would amount to a restraint, so as to deprive the acts of a voluntary character, in the case of the subordinates of a vessel.</p>

This was an indictment founded upon the thirtieth section of the act of March 2, 1867, by which two or more parties conspiring together to defraud the government are deemed guilty of a misdemeanor, and, on conviction, are held liable to a penalty of not less than one thousand nor more than ten thousand lo.t ■ lars, and to imprisonment not exceeding tin* years. A joint indictment was found against James Whalan, William A. Wright.

<p>Case No. 16,670.</p> <p>Customs Duties—Re-Exportation Bonds—Construction op Revenue Laws.</p> <p>1. When goods entered in debenture for re-exportation, have been exported, passed through a foreign custom-house and are subject to a retail trade, they are mixed with the common merchandise of the country, and may be again imported into this country.</p> <p>2. The interpretation of doubtful and ambiguous words in a particular law, are, in revenue laws, to be explained in subservience to the common policy of the country.</p>

The 48th section of the internal revenue act of 1864, as amended by the act of 1866. provides that all articles on which taxes are imposed, found in the possession or control of any person for the purpose of being sold or removed by him in fraud of the internal revenue laws, or with design to avoid payment of the taxes, may be seized by designated officials, and shall be forfeited; and also all raw materials found in possession of any person intending to manufacture them…

<p>Case No. 16,672.</p> <p>Postoffice—Abstraction op Letter by Postmaster—Evidence.</p> <p>1. Where a post-master is charged with abstracting a letter from the mail, containing money, to fix the charge it is usually necessary to-examine the post-masters and assistant postmasters, between the office where the letter was deposited to be mailed, and the office to-which it was directed.</p> <p>2. And at such office the clerks or persons who received and opened the mail should be examined. This testimony is especially necessary on the part of the prosecution, where the accused proved an exemplary character during his whole life.</p> <p>[Cited in State v. Northrup, 48 Iowa, 585.]</p>

<p>Case Tío. 16,673.</p> <p>Mexican Land Grants—Proceedings fob Confirmation—Genuineness op Papers— Evidence.</p> <p>[The only documentary evidence of a grant was produced from the claimant’s possession, and consisted of a sheet of paper containing a petition to the governor, dated in 1840, a marginal order of reference, an informe, and a decree of concession, together with a map of the-land. There was no trace of the existence of the grant in the archives, but strong presumptive evidence against it, in records of subsequent dates, showing that the authorities considered the land as still open to grant, and that petitioners for neighboring lands knew nothing of the grantee’s claim. The genuineness of the-papers produced rested on the testimony of witnesses known to have been connected with previous frauds, similar to that alleged in this, case; and the testimony of the only witness who attempted to account for the map was manifestly false in many particulars. The date of one of the title papers had been altered, and no explanation thereof was suggested consistent with the bona fides of the transaction. The grantee neglected for three years from the date of the alleged grant to take any steps to perfect his title, as required by the colonization laws, and then left the country, under circumstances suggesting an intention to abandon his right. He had never himself occupied the land, but it was in possession of a relative. He-claimed that this possession was in his behalf, but the relative repudiated the claim, and after-wards sought a grant of the land for himself, and his right was recognized by the adjoining landowners in apparent ignorance of the alleged grant to the present claimant. Held-, that upon this evidence the claim must be rejected. U. S, v. Noe, 23 How. (64 U. S.) 312, and US. v. Alviso, Id. 318. distinguished.]</p> <p>NOTE. Since the foregoing opinion was written, I have been reminded of the fact that the sessions of the district court at which the cause was first heard was held by both judges, before whom an elaborate argument was had. The papers were taken, however, by the circuit judge, by whom the case was investigated, and who prepared and delivered the opinion of the court. It is therefore inaccurate to say that the claim was originally confirmed at a term of the court held by the circuit judge. The fact that the cause was investigated and the opinion delivered by the circuit judge, and that I concurred in the decision, without giving to the case that thorough personal examination which I otherwise should have done, left me under the impression that, as stated in my recent opinion, the cause was decided, in form, as well as in fact, by the circuit judge alone.</p> <p>[The. decree rejecting the claim was affirmed by the supreme court. 1 Wall. (68 ü. S.) 660.]</p>

<p>[This was an indictment against James White upon the charge of violating section 5511 of the Revised Statutes.]</p>

[This was a claim originally presented by Charles White for the rancho called the “Arroyo de San •Antonio,” in Sonoma county, granted August TO, 1840, by Juan B. Alvarado to Antonio Ortega, and confirmed by the commission June 26, 1855, by the district court August 17, 1857, and decree reversed by supreme court. 23 How. (64 U. S.) 249. On the death of said White, Ellen E. White, administratrix, was substituted.

[This claim was by Charles White, and, after his death, by Ellen White and others, his widow and heirs, for Pala, one square league in Santa Clara county, granted November, 1835, by José Castro to José Higuera. The claim was confirmed by the commission December 19, 1854, and by the district court February 23, 1857. Heard on objections to surveys.]

Indictment against the defendants [John D. White, otherwise called Charles Marchant, and Winslow Curtis, otherwise called Sylvester Colson] for murder on the high seas. They severally pleaded not guilty, and afterwards moved the court for a separate trial, contending for it as a matter of right The motion was resisted on the part of the United States.

<p>Case No. 16,683.</p> <p>Seambk — Endeavor to Make a Revolt — Shipping Articles—Deviation.</p> <p>L Seamen shipped under articles for a voyage from New Orleans to Havre, and thence to one or more ports in Europe, and thence back to a port of discharge in the United States. The master, intending to make Charleston the final port of discharge, stopped at New York, and landed passengers and freight. BelcL, that the seamen were not guilty of the offence of “endeavoring to make a revolt.” in refusing to get the ship under way, and doing further duty, for the purpose of proceeding to Charleston.</p> <p>2. The shipping articles must be referred to, and would furnish “prima facie” evidence as to the right of the master to require the seamen to proceed any further.</p> <p>3. Shipping articles must specify all' ports or places of stoppage for purposes of this character.</p> <p>4. The shipping articles in question not containing any mention of the port of New York, the case in question presented a clear unauthorized deviation, which discharged the seamen from all blame in refusing to proceed further.</p> <p>5. To justify a deviation from the direct voyage contained in the articles, the same must be unpremeditated, and caused by a “vis major.”</p>

This was an action of debt instituted in the circuit court, on the 25th of March, 1850, on the bond of the defendants [Joseph White, John McColgan, and William P. Whyte], given to the United States, on the 14th of February, 1846, to secure the performance, by Joseph White, of the duties of navy-agent, at the city of Baltimore.

[Appeal from the district court of the United States for the Eastern district of Pennsylvania.] This was an action of debt brought in the district court by the United States against the defendants [William White, John White, and Isaac Johnson] upon a bond given by them to the United States, in the penalty of $5000.

This is an indictment founded on an act of congress, approved.

Debt for the recovery of duties, alleged to be due upon certain cases of indigo, imported by the defendant [Thomas Wigglesworth] into the port of Boston. The case came before the court upon an agreed statement of facts as follows: The defendant was the owner of the said cases of indigo, which were laden on board of the •American ship-, at a port east of the Cape of Good Hope; and which sailed therefrom for Boston before the first day of September, 1842, and arrived safely.

This was an indictment against the captain of a vessel, upon the complaint of one of his mariners, for an assault and battery committed at sea. It appeared in evidence, that the sailor had misbehaved himself very much, had abused the captain, and had even en-deavoured to strike him; in consequence of which, the captain gave him a severe blow with his fist.

<p>This was a demurrer to an indictment. The indictment contained two counts, each founded upon the 1st section of the act of congress of March 3, 1823 (3 Stat. 771), which provides, that if any person or persons “shall transmit to, or present at, or cause or procure to be transmitted to, or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt, or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited, every such person shall be deemed and adjudged, guilty of felony,” &c. The first count set forth,' that “Samuel C. Albro and Morris Wilcox, late of Whitestown, in the county of Oneida and state of New York, heretofore, to wit, on the tenth day of August, in the year of our Lord one thousand eight hundred and fifty-eight, at Whitestown, in the county of Oneida, in the Northern district aforesaid, and within the' jurisdiction of this court, did feloniously transmit to, and present at, the office of the commissioner of pensions, of the department of the interior, of the United States of America, a certain false, forged and counterfeit writing, in support of and in relation to a claim for bounty land against the United States, which purported to be the genuine and true declaration and affidavit of Henry West, and made out and subscribed and sworn to for the purpose of obtaining the bounty land to which the said Henry West was or might be entitled, under the act of congress approved the third day of March, in the year of our Lord one thousand eight hundred and fifty-five, and attached thereto and connected therewith was what purported to be the affidavits of Charles H. Williamson and Charles Bowers, and the certificate of said Morris Wilcox, a justice of the peace within and for the county of Oneida, which said false, forged and counterfeited writing is in words and figures as foEows: ‘Declaration of an officer or soldier who has not received bounty land. State of New York, County of Oneida, ss. On this tenth day of August, A. D. 1858, before me, Morris Wilcox, a justice of the peace within and for the county and state aforesaid, personally appeared Henry West, aged 74 years, a resident of Newport, Herki-mer county, in the state of New York, who, being sworn according to law, declares that he is the identical Henry West who was a musician in the company commanded by Captain Benjamin Minor, in the 12th regiment of detached mUitia, commanded by John S. Vandalson, in the war with Great Britain, declared by the United States on the 18th day of June, 1812; that he entered the service at Schenectady, New York, on or about the first day of September, A. D. 1812, for the term of six months, and continued in actual service in said war, for the term of about six months, and was honorably discharged at Sackett’s Harbor, New York, on or about the first day of March, ■ A. D. 1813. He makes this declaration for the. purpose of obtaining the bounty land to which he may be entitled under the “Act in addition to certain acts granting bounty land to certain officers and soldiers who have been engaged in the military service of the United States,” passed March 3d, 1855. He also declares, that • he has not- received a warrant for bounty land under this or any other act of congress, nor made any application therefor. Henry West. We, Charles H. WiUiamson, and Charles Bowers, residents of Whitestown, county and state aforesaid, upon our oaths declare, that the foregoing declaration was signed and acknowledged by Henry West in our presence, and that we believe, from the appearance and statements of the applicant, that he is the identical person he represents himself to be. Signatures of witnesses: Charles H. Williamson, Charles Bowers. The foregoing declaration and affidavit was sworn to and subscribed before me, the day and year above written; and I certify, that 1 know the affi-ants to be credible persons, that the claimant is the person he represents himself to be, and that I have no interest in this claim. Morris WUeox, Justice of the Peace’—which writing was transmitted to, and presented at, the said office of the commissioner of pensions, by said Samuel C. Albro and Morris Wilcox, with intent to defraud the said United States, they, the said Samuel C. Albro and Morris Wilcox, then and there knowing the same to be false, forged and counterfeited, contrary to the form of the statute in such case made and provided, and against the peace of the said United States of America and their dignity.” The second count was, in form and substance, the same as the first count, except that the charge in the second count was for causing and procuring the papers referred to, to be transmitted to and presented at the pension office, instead of transmitting and presenting them, as charged in the first count.</p>

<p>Case No. 16,692.</p> <p>Indictment for Perjury—Requisite Averments —Officer Administering Oath.</p> <p>1. An indictment in this court, for perjury, alleged to have been committed on an examination before A. C., “a commissioner of the United States duly appointed,” but not stating how, or by whom, or under what statute, or for what purpose, such commissioner was appointed, is bad, on demurrer.</p> <p>[Cited in U. S. v. Quinn. Case No. 16,110; U. S. v. Cover, 46 Fed. 285.]</p> <p>2. The indictment should set out the name and official title of the officer before whom the oath, was administered.</p> <p>[Cited in U. S. v. Howard, 37 Fed. 667.]</p> <p>3. An indictment for perjury, alleged to have been committed on an examination of a person charged with a crime against a law of the United States, should» show what the particular crime was.</p> <p>4. The act of April 30, 1790 (1 Stat. 116, 117, §§ Í9, 20), in reference to the forms of indictment for .perjury and subornation of perjury, does not dispense with the necessity of such averments.</p>

This was a demurrer to an indictment [against Morris Wilcox] for subornation of perjury, founded upon the 13th section of the act of congress approved March 3, 1825 (4 Stat. 118), which provides, that “if any person, In any case, matter, hearing, or other proceeding, when an oath or affirmation shall be required to be taken or administered under' or by any law or laws of the United States, shall, upon the taking of such oath or affirmation, knowingly and willingly swear or…

Trover for certain slop clothing. The parties agreed to the following statement of facts: “In this case it is agreed, that the schooner Jasper, from Boston' to New York, went ashore on Block Island. Much expense was incurred in saving the goods, which is to be averaged by way of general average. Among the property on board, there were about one hundred bales of slop clothing belonging to the United States, invoiced at $7,320.

This is a bill filed by the United States against Charles B. Wilkinson and the Bank of St. Joseph, alleging that said Wilkinson, from the year 1872 to 1875, was internal revenue collector for the Sixth collection district of Missouri; that as such collector he became indebted to the United States in the sum of $8,357.31; that the United States, on the 30th of March, 1S76, recovered judgment for said amount, which judgment remains unsatisfied; that in September, 1875, said…

<p>Case No. 16,697.</p> <p>Conscription Laws—Hindering Enrolling Officer.</p> <p>The act of congress of March 3,1863 [12 Stat. 731], provides no punishment for obstructing, hindering, and delaying an enrolling oflicer, and an indictment will not lie therefor.</p> <p>[This was an indictment against Joseph Will for violating the conscription act. Motion in arrest of' judgment.]</p>

<p>Case No. 16,698.</p> <p>Pleading — Special Demurrer — Evidence — Transcripts from Treasury Accounts — How Explained — ¿Advances to Militia Paymaster.</p> <p>1. If a plea which purports to answer all the breaches in the declaration is a good answer to some of them only, the objection cannot be taken advantage of on error, but on special demurrer only.</p> <p>2. Transcripts of accounts in the treasury department are written documents, and their construction is matter of law.</p> <p>3. Witnesses acquainted with the mode of accounting at the treasury, cannot be called to give their opinion as to the effect of particular charges. If there is any obscurity which requires explanation, the officers of the treasury should be examined.</p> <p>[Cited in Robertson v. Stark, 15 N. H. 113.]</p> <p>4. As where sums were charged as advanced to a paymaster of the militia, and witnesses were examined to prove that they believed, from the manner in which the charges were made, that a part of such sums were to pay the regular troops, their testimony was held inadmissible.</p> <p>5. The duties and powers of a military officer of the United States are regulated by law, and for the court to determine.</p> <p>6. Monies were advanced to a militia paymaster, under the acts of congress of 20th of January and 3d of March, 1813 [2 Stat. 791, 816], and charged to him in account under the words “Pay of the army.” Held, that these words were evidence of the appropriation out of which the advances were made, and not that such advances were to be disbursed to regular troops, but not to the militia.</p> <p>[7. Cited in Harris v. Barnett, 4 Blackf. 373, as showing that the seal of the treasury department, attached tc transcript of accounts, was received in evidence without question of its authenticity.]</p>

<p>Case Mo. 16,699.</p> <p>Revenue Frauds—Act op 1863—Action op Debt to Recover Value op Goods—Construction op Statutes.</p> <p>1. Under the 1st section of the act of March 3d, 1863, to prevent frauds on the revenue (12 Stat 737), an action of debt lies in behalf of the United States, to recover the value of goods imported in violation of the provisions of that section. against the person, be he owner, consignee or agent of the goods, who knowingly makes or attempts to make an entry of them by any of the false or fraudulent means specified in that act.</p> <p>[Cited in brief in Ransdell v. Patterson, 1 App. D. C. 491.]</p> <p>2. Revenue laws, which impose forfeitures for fraud, are not technically penal, so as to call for a strict construction, but are to be construed so as effectually to accomplish the intention of their makers.</p> <p>[Cited in U. S. v. Laescki, 29 Fed. 700.]</p> <p>3. Where a penalty is given by statute, and no remedy for its recovery is expressly given, debt will lie.</p>

<p>Case No. 16,700.</p> <p>Constitutional Law—Legislative and Judicial Powers—Embargo Laws.</p> <p>[1. It seems that the judicial authority o£ the federal courts is precisely limited in regard to deciding on the validity of legislative acts, and that the power to declare them void exists only in cases of contravention, opposition, or repug-nancy to some express restriction or provision in the constitution.]</p> <p>[2. Before a court can determine whether a given act of congress, bearing relation to a power with which it is vested, be a legitimate exercise of the power or transcend it, the degree of legislative discretion admissible in the case must first be determined. Whether, therefore, it be within the judicial power to declare an act invalid merely on the ground that congress has transcended or exceeded a power with which it is vested by the constitution, quaere.]</p> <p>[3. The constitutional power of congress to regulate commercial intercourse, qualified by the limitations and restrictions expressed in the constitution and by the treaty making power of the president and senate, is sovereign, and may be used not only for the advancement of commerce, but for the promotion of other objects of national concern.]</p> <p>[4. The embargo laws of December 22, 1807, and March 12, 1808, are not unconstitutional, either on the ground that they exceed the powers of congress to "regulate,” because they interdict all foreign commerce, or because they are not by their terms limited to a specific duration.]</p>

<p>Case No. 16,702.</p> <p>“Blockade” Defined — Civil War—Municipal Regulations—Attitude of Neutrals— Construction of Statutes.</p> <p>L A “blockade,” as that word is understood by the law of nations, is an investment of a town of one belligerent by the forces of another.</p> <p>2. Every nation of common rights may declare what shall be ports of entry and delivery, and participate in trade by law, and enforce their laws by such means and penalties as she pleases. If she places armed ships before them, this does not constitute-a blockade, as understood by public law, but is a mere municipal regulation, though familiarly called a blockade.</p> <p>3. A neutral, or neutrality, always implies-three parties, two belligerents and a third, a common friend, all acknowledged as' independent nations. But in a civil war there is only one party, insurgents are not acknowledged as-a nation, but to foreigners they are mere malefactors.</p> <p>4. The laws of the United States, of July 13. and August 6, 1861 [12 Stat. 255, 319]. are purely municipal regulations, with which foreigners have no concern.</p> <p>5. Where an intent is charged in a statute as constituting part of a crime, if must be proved as a fact.</p> <p>6. The words “aid, abet, and promote” used in the law of August 6, 1861, are words of uncertain meaning, as to their intent, and in this law are to be taken in their largest extent.</p>

and upon mature consideration, agreed to the condemnation of the vessel upon the last count of the information, which stated that goods exceeding the value of 400 dollars had been ladened on board without a permit from the proper officers. The cargo was condemned; no claim being filed, nor any objection made; reserving for the opinion of the court, the question whether the goods shipped under a permit were liable also to forfeiture.

<p>Case No. 16,703.</p> <p>Steam Vessels—Regulations tor Safety of Passengers—License and Enrollment— Ferry Boats—Coasting Trade.</p> <p>1. The act of July 7, 1838 [5 Stat. 364], “To provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam,” was not intended by congress to apply to all steamboats, but only to such as before the passage of that act were required- to be enrolled and licensed for the coasting trade.</p> <p>2. Under the laws of congress enacted prior to that of 1S38, ferry boats were not required to be enrolled and licensed.</p> <p>3. The words, “coasting trade,” mean, the trade along the shore, and the business of a ferry boat is not included therein.</p> <p>[Cited in Ravesies v. U. S., 35 Fed. 919.]</p> <p>4. a license from the United States, and a license from a state, are not both necessary to authorize the owners of a steamboat to employ her in ferrying.</p> <p>5. The laws of the United States contain no regulations for ferries as such, while thé states have exercised the right to license and regulate ferries from the commencement of the government to this day.</p> <p>[Cited in U. S. v. The Seneca, Case No. 16,-251; distinguished in The Daniel Ball, Id. 3,564.]</p>

<p>[This was an indictment against Samuel Williams under the seventh section of the fugitive slave law.]</p>

<p>Case No. 16,706.</p> <p>Indictment—Pleading—Felonious Possession op Forged National Bank Notes.</p> <p>1. An indictment for the felonious possession of a forged national bank note need not aver that the forged instrument purported to be a note of any designated national bank, if the instrument be copied into the indictment, and if by the terms of such copy it purports to be such a note.</p> <p>2. In an indictment for the felonious possession of a forged national bank note it is not necessary that the indictment should aver that the bank is a legal corporation. The national courts will judicially take notice of the existence of all national banks.</p>

<p>Indictment for murder on the high seas. It appeared from the evidence that the prisoners sailed from Portland in the brig. Albion Cooper, on the 7th of July, 1857, on a voyage to Cardenas, in' the island of Cuba. The ship’s company consisted of seven persons,— the master, two mates, and four seamen, including the cook' and steward. After they sailed, nothing further was heard of the persons on board until the 2d of September following the time of their departure from Portland. On that day, in the open sea. on the Bahama Banks, Captain Chase Bryant, of the bark Black Squall, being on a voyage from Philadelphia to Havana, fell in with an open boat in which were three men. He took the boat and men on board his vessel, and continued on his way to Havana. The three men were Peter Williams, Abraham Cox, and Thomas Lahey. Cox and Williams told Captain Bryant that the rest of the ship’s company were washed overboard in a squall, while the three survivors were below; that the vessel was. so much damaged as to be unmanageable; and that they three, collecting such things as they could from the ship, took to the boat to save their lives. In the boat were found a quantity of provisions and water, a compass and register belonging to the brig, one or two chests of clothing, proved to have been the property of the first and second mates, and a watch, proved to have belonged to the master. On the arrival of the Black Squall at Havana, the defendants and Lahey (who died before- the trial) were arrested by the American consul in consequence of information given by Captain Bryant. Cox and Williams were first separately examined upon oath before the consul, and their statements reduced to writing, when their stories were substantially the same as those which they told to Captain Bryant. Lahey was subsequently examined, and his statements implicated Cox and Williams, who thereupon, in the presence of several persons, confessed the murder of the missing members of the ship’s company, and described in detail the manner and circumstances of the crime. Their confessions were also taken in writing by the consul, signed by the prisoners, and were offered in evidence, together with proof of the facts already recited.</p> <p>On this state of facts, the district judge instructed the jury as follows:—“It is true that in our jurisprudence the accused cannot be convicted on their own confessions, without some corroborating proof of the corpus delicti. There must be some proof that the crime has been committed independent of the confessions, but it is not necessary that it should be plenary proof. There must be evidence tending or conducing to prove the fact; and if it has that tendency, it is proper to be submitted to a jury, and if not, it ought to be excluded as irrelevant.” The jury returned a verdict of guilty against both the accused. A motion in arrest of judgment was filed, because it did not appear in and by the indictment upon which the prisoners were tried that said indictment was found by a grand jury duly drawn and impanelled, the inquest being therein described as “the jurors of the United States.” New trial was also asked, on the ground that there was not, independent of the confessions, such proof of the corpus delicti as would warrant a conviction.</p> <p>The indictment is bad, because it does not 3how on its face that it is found by a grand jury. The final authority upon this point is the constitutional provision. Const. U. S. Amend, art 5. There is no intervening statute, and if there were the indictment must conform to the constitution. It has never been decided that an indictment in the present form answers the constitutional requirements. The usage in Maine and Massachusetts may lend its sanction to this indictment; but the usage, however old, cannot make it good. Its age is objectionable, and makes it out of date, being older than the constitution. Low’s Case, 4 Greenl. 443. But the usage is not uniform. Thaeher, Cr. Cas. 284. It is not enough that the court knows that the indictment has been found by a grand jury; the prisoner has a right to know, and his information must come, if at all, through the indictment. A confession is not admissible if given under oath. 1 Greenl. Ev. § 225; 1 Archb. Cr. Law, 411; 2 Russ. Crimes, 649; 2 Starkie, Ev. 36; 4 Hawk. P. C. bk. 2, c. 46, § 37. If the record offered shows that the confessions were given under oath, parol evidence cannot be introduced to contradict it. Reg. v. Wheeley, 8 Car. & P. 250. The record does show that the confessions were given under oath. The prisoners were first sworn to tell the truth about the loss of the Albion Cooper; and in their confessions there was no change of subject, and no purgation from the oath. The following are the English cases: Berwick’s Case, Post. Crown Law, 10; Francia’s Case, 1 East, P. C. 133; Lambe's Case, 2 Leach, 552; Thomas’ Case, Id. 637; Wheeling’s Case, 1 Leach, 311, note; Rex v. Eldridge, Russ. & R. 440; Rex v. White, Id. 508; Rex v. Tippet, Id. 509; Rex v. Falknér, Id. 481; 1 Phil. Ev. .535; 1 Archb. Cr. Law, 126. These do not support the rule in Badg-ley’s Case, 16 Wend. 53. The American decisions agree with the text-books in laying down the rule of law, that in capital cases the corpus delicti cannot be proved by confessions, but must be proved, before the jury can convict, by independent testimony, by proof aliunde. In 1 Greenl. Ev. § 217, is to be found the full and accurate statement of the law upon this point, and his high authority is supported by other writers of unquestioned accuracy. Cowen & Hill’s Notes of 1 Phil. Ev. 532; Whart. Cr. Law, § 683; 2 Russ. Crimes, 824, 825, note, and 826. The American cases are not numerous. 15 Wend. 147; 16 Wend. 63. The earlier of these, Hennessey’s Case, is one in which the facts and results favor the motion of the prisoners. The verdict was set aside for want of evidence aliunde. In Badgley’s Case the conviction was confirmed, and thus the two cases move in opposite directions. State v. Aaron, 1 South. [4 N. J. Law] 231; State v. Guild, 5 Halst. [10 N. J. Law] 163; Stringfellow’s Case, 26 Miss. 157.</p> <p>It Is not necessary that the word “grand” should precede the word “jurors” in the indictment Whart. Prec. 14, note a. The court knows, from its record in the case, that the bill has been brought into the court by the grand jury, and that the signature of the foreman is that of the foreman of the grand jury. Com. v. Read, Thacher, Cr. Cas. 180. The words “the jurors for the said United States” as clearly show they were the grand jurors as in the English indictments the words “the jurors for our Lady the Queen.” This is in accordance with the form invariably used in the federal courts in Maine and Massachusetts from the adoption of the federal constitution. U. S. v. Bird [Case No. 14,597]; U. S. v. Hobart (not reported). From the time of the finding of these indictments, the one the first capital case after the adoption of the constitution, the other the first in the federal courts in Maine after the separation, the practice has been uniform, and the same form of commencement in this respect has been observed in the federal courts as in the state courts in Maine and Massachusetts. . Process Act, 4 Stat. 478. If there was any doubt upon the question whether the confessions were or not made under oath, the prisoners have had the benefit of that, for the court instructed the jury that if they believed the confessions to have been under oath, or if they believed even that the persons supposed themselves to have been under the influence of an oath, and that these confessions were induced by the influence of that belief, they should disregard them. The reason for excluding confessions is not that one is less likely to tell the truth under oath than not under oath, but it is that one under examination charged with crime is not bound to criminate himself. Consequently, if the examining magistrate puts him under oath when he is charged with crime, what he says while under oath is not deemed a voluntary statement. He is supposed to have been required to answer instead of having volunteered his statement</p> <p>There has been no invasion of the right of a person charged with crime not to be compelled to give evidence against himself. But at the same time, what a person has testified to under oath while being examined as a witness in favor of or against other parties, or before a grand jury, or before a coroner’s inquest, before he was himself charged with crime, has been received. People v. McMahon, 2 Parker, Cr. R. 663-672; People v. Hendrickson, 1 Parker. Cr; R. 396; Wheater’s Case, 2 Moody, Crown Cas. 45. In Rex v. Wilkinspn, 8 Car. & P. 662, the confession of the prisoner was received, though not signed by himself or the magistrate who wrote it; and the statements read to the jury. The general principle is, that a voluntary confession is one of the strongest proofs of guilt, and the highest species of evidence. 2 Starkie, Ev. 36; 1 Phil. Ev. (7th Ed.) 110, 111; 2 Russ. Crimes, c. 4, § 1, 824; Rose. Cr. Ev. 37; Gilb. Ev. 137; 1 Greenl. Ev. § 215; Warickshall’s Case, 1 Leach, 263. Hence the maxim, “Habemus optimum testem eonfitentem reum.” Confessions are divided into two classes,—judicial and extrajudicial. 1 Greenl. Ev. p. 273| § 216. A judicial confession, voluntarily made and regularly proved, is sufficient, if the jury believe it, to convict the prisoner without any corroborating evidence. 2 Hawk.^ bk. 2, e. 46, § 29; 1 Phil. Ev. (4th Am. Ed.) 541; Starkie, Ev. pt. 4, 53; Guild’s Case, 5 Halst. [10 N. J. Law] 186. An extra-judicial confession, not subject to any imputation of having been induced by the torture of fear, or the flattery of hope, furnishes sufficient ground for conviction when confirmed by corroborating circumstances. It is not necessary that such corroborating testimony should afford plenary proof of the corpus delicti. Greenleaf, while admitting the law in England to be as contended for, claims that a different rule obtains in the decisions of the courts of the United States, and that, before a conviction can be based upon a confession, there must be independent proof of the corpus' delicti. 1 Greenl. Ev. § 217. The only cases referred to as sustaining this position are State v. Long, 1 Hayw. (N. C.) 455,—a per curiam opinion overruled in State v. Broughton, 7 Ired. 96, and Guild’s Case, 5 Halst. [10 N. J. Law] 163, in which it is expressly decided that it is only necessary that the confession should be corroborated. 2 Hawk. c. 46, § 36, is also referred to. But, so far from sustaining the position laid down in 1 Greenl. § 217, both the thirty-sixth section and section thirty-ninth will be found to state a proposition diametrically the opposite. If by the word “proof” Greenleaf is to be understood as meaning “plenary proof,” his statement is entirely unsupported on principle, or by any authority. The only explanation that can be made is, that the word “proof” was used by him to mean “evidence” merely. People v. Hennessey, 15 Wend. 147; People v. Badgley, 16 Wend. 53. Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient. People v. Badgley, 16 Wend. 59. The prisoners, and the prisoners only, know the fact of the death absolutely and with certainty. Shall they not be allowed to prove. by their oft-repeated and voluntary and corroborated statements a fact against themselves, of which their evidence would have afforded plenary proof against any other person? and if so, upon what principle may they not admit against themselves, and against their interest, and the prompt-tags of every motive, a fact which might have been proved by another person with no better knowledge of the facts, and with less of guaranty that his evidence was not distorted by interest, passion, or prejudice?</p>

<p>Case Ho» 16,709.</p> <p>Counterfeiting Bank Notes—List of Witnesses and Jukous—Witness Pees.</p> <p>1. A prisoner, indicted for counterfeiting a note of the Bank of the United States, is not entitled to a list of witnesses ana jurors two days before pleading, although the statute makes it felony.</p> <p>[Cited in U. S. v. Coppersmith, 4 Ped. 202.]</p> <p>.2. A witness may be allowed his fees although not regularly summoned.</p> <p>[Cited in Cummings v. Akron Cement & Plaster Co., Case No. 3,473; Re Williams, 37 Ped. 326; Burrow v. Kansas City, Pt. S. & M. R. Co., 54 Ped. 281.]</p>

In this case there were five indictments successively found against the defendant [John Williams].

<p>The indictment charges the defendant, late deputy collector of internal revenue, with the embezzlement of certain public money. The bill was found in the district court, without any preliminary examination, before a magistrate; and after plea in abatement, and replication filed, the case was transferred to this court. It is stated in the indictment that it is found by a grand jury of seventeen jurors. On the bill appears this indorsement: “Names of 'Witnesses: J. N. Hall, D. L. How.” No other witnesses are named in the indorsement on the bill.</p> <p>The plea in abatement, after the formal part, is in these words: “The United States ought not further to prosecute the said indictment, because the defendant says that three of the grand jurors of the panel which found the indictment and acted thereon, namely, D. L. How, J N. Hall, and J. W. Senserbox were incompetent to act or sit thereon, for that the said D. L. How was then and there surety for this defendant as such deputy collector of internal revenue, and the said J. N. Hall was the collector of internal revenue under whom this defendant was such deputy; and the said D. L. How was then and is the prosecutor and prosecuting witness along with the said .T. N. Hall, upon the accusation set forth in the indictment, and all said three persons became members of said grand jury at the instance and denomination of said D. L. How.” Here follows the formal and proper conclusion to such a plea.</p> <p>These allegations are traversed by the replication, which asks that the issues thereby made be inquired of by the country.</p> <p>At the June term, 1870, of the circuit court, a jury was called to try the issues made by the replication to the plea in abatement, and both parties produced testimony. The court submitted to the jury the following special questions, which the jury answered as below stated:</p> <p>(1) Special Issues to the Jury: Did the said How, Hall and Senserbox, named in the plea, serve on the grand jury which found the bill of indictment against the defendant, and were they present at, and did they participate in, the proceedings on the charge against the defendant; and were they present when the vote was taken on the finding of the bill? The jury answer, “Yes.”</p> <p>(2) Was the said Hall collector of internal revenue, and said Williams his deputy, and said How the surety of the said Williams? The jury answer, “Yes.”</p> <p>(3) Were the said Hall and How, or either of them, the prosecutor in the charge against the said Williams before the said grand jury at the term when the bill was found? The jury answer, “No.”</p> <p>(4) Did said Hall or How testify before the said grand jury as witnesses on the charge against the said Williams? The jury answer, “Yes.”</p> <p>(5) Did the said Hall or How become members of the said grand jury which found the bill at the instance, and on the nomination, of the said How? The jury answer, “No.”</p> <p>No evidence was given on the trial as to the said Senserbox named in the plea, except that he was a member of the grand jury, at the term at which the bill was found.</p> <p>After the special verdict above given was found, the defendant moved for a new trial upon the third special interrogatory on two grounds, to-wit: (1) The finding of the jury that neither Hall nor How was the prosecutor of the charge against the defendant before the grand jury, was against the evidence delivered on the trial. (2) Upon the ground of newly discovered evidence, viz: A letter from How to the defendant, dated sometime before the bill was found, stating that if the latter did not “make good the amount of money he had embezzled as deputy collector, and settle with Mr. Hall, I shall cause criminal proceedings to be commenced against you as an embezzler,” &c. An affidavit of the defendant is filed showing that this letter had escaped his recollection, and was accidentally found after the trial, when searching for the contract between him and Hall, his principal. An affidavit of the defendant’s attorney is also filed stating his ignorance until after the trial of the existence of this letter. It is this motion for a "new trial which is now before the court for determination. In 1866, the court “ordered that in actions at law, the practice and pleadings now existing in the district courts of the state of Minnesota be adopted in the circuit court of the United States for this district,”—but the order did not extend to criminal cases or proceedings.</p> <p>The statutes of Minnesota, after prescribing the qualifications and number of grand jurors in the state courts, and how these shall be obtained, provides that “a person held to answer a charge for a public offence, may challenge the panel of the grand jury, or any individual juror, before they retire, after being sworn and charged by the court.” Rev. St. 1866, p. 637, § 13. It limits challenges to the panel to three causes, all referring to irregularities - in the drawing of the names from the grand jury box. The statute then enacts that “a challenge to an individual juror may be interposed for one or more of the following causes only: .(1) That he is a minor. (2) An alien. (3) Insane. (4) That he is a prosecutor upon a charge against the defendant. (6) That he is a witness on the part of the prosecution, and has been served with process, or bound by a recognizance as such. (6) A state of mind which satisfies the court that the juror cannot act impartially, and without prejudice to the substantial rights of the party challenging.” Rev. St. Minn. 1866, pp. 637, 638.</p> <p>A subsequent section in the same chapter provides that a grand juror is not to be questioned for his action as such juror, “except for perjury, of which he may be guilty in making an accusation, or giving testimony to his fellow jurors.” Id. p. 640.</p> <p>By the judiciary act it is provided that jurors to serve in the courts of the United States “shall have the same qualifications as are requisite for jurors by the laws of the state of which they are citizens, to serve in the highest courts of law of such state.” 1 Stat. 88, § 29. By the act of congress, July 20, 1S40, it is provided that “jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications, and be entitled to the like exemptions, as jurors of the highest court of law of such state now have and are entitled to, and shall hereafter, from time to time, have and be entitled to, &c. 5 Stat. 394, § 1. By the act of congress of March 3, 1865, it is provided that grand juries in the national courts, “shall consist of not less than sixteen and not exceeding twenty-three persons; * * * and whenever a challenge to an individual grand juror is allowed, and there are not other jurors in attendance to complete the panel, the court shall make an order to the marshal to summon a sufficient number of • persons for that purpose. No indictment shall be found without the concurrence of at least twelve grand jurors.” 13 Stgt. 500, § 1.</p> <p>What constitutes a sufficient cause for a challenge to an individual grand juror is not prescribed by this act, but by another act it is provided that certain disloyal practices shall be grounds of challenge of grand jurors and petit jurors. 12 Stat 430.</p> <p>The motion for a new trial was argued by</p>

[This was an action at law by the United States against A. P. Williams and others under the internal revenue laws.] During the progress o£ the. trial .of the above named ease before Hon. P. B. SWING, the plaintiff called Thomas R. Roberts, inspector of spirits during the year 1867, as a witness on its behalf and W. 11. Bateman, district attorney, proceeded to question him as to the amount of spirits he had inspected at the plank-road distillery.

<p>Case No. 16,719.</p> <p>Levy ox Judgment Debt of Partnership — Partnership and Individual Creditors —Authority of Sheriff — Sale — Rights of Purchaser.</p> <p>1. A judgment against one of the partners of a firm, will authorize the sheriff or marshal to levy on the right of the judgment debtor in the goods.</p> <p>[Cited in Newhall v. Buckingham, 14 Ill. 408.]</p> <p>2. But the debts of the partnership must be first paid, before the partnership property can be applied in payment of the individual debts of either partner.</p> <p>[Cited in Re Corbett, Case No. 3,220.]</p> <p>3. If the officer shall deem it safe, he' may make' an arrangement with the partner to sell the goods, and account for the proceeds, after paying the debts of the partnership.</p> <p>4. And where it is necessary for the security of the officer, he may take possession of the entire property, and sell the interest of the partner against whom judgment has been entered.</p> <p>5. But this proceeding ought not to be had, as it breaks up the partnership, and leads to great uncertainty, unless it be necessary.</p> <p>6. The purchaser of the right sold becomes a substituted partner, in lieu of him whose property is sold.</p>

<p>Case No. 16,721.</p> <p>Usubt — Set-Off — Unliquidated Damages—Allowance of Damages bt Congress— Limitations.</p> <p>1. It is not usury, where the writings are not executed at the time of the contract, to charge interest from that date.</p> <p>2. An unliquidated demand cannot be offset against the government, or between individuals.</p> <p>[Cited in Clyde v. Knight. 12 R. I. 195.]</p> <p>3. The action of congress, in the allowance of damages, is conclusive on the judiciary.</p> <p>4. It cannot revise the facts on which congress acted.</p> <p>5. The statute of limitations does not run against the government, nor is it chargeable with delays, so as to raise a presumption of payment.</p> <p>[Cited in U. S. v. Thompson. 98 U. S. 488: U. S. v. Little Miami. C. & X. R. Co.. 1 Fed. 701; U. S. v. Southern Colorado Coal & Town Co., IS Fed. 279.]</p> <p>[Cited in Mayrhofer v. Board of Education, 89 Cal. 112, 26 Pac. 646. Cited in brief in TJ. S. v. San Pedro & Canon Del Agua Co. (N. M.) 17 Pac. 338.]</p>

<p>[This was a suit by the United States against John R. Williams for foreclosure of a mortgage.]</p>

<p>Case No. 16,722.</p> <p>Criminal Law — Alibi as a Defence — Bill of Exceptions—Stay of Proceedings.</p> <p>[L While the experience of courts has led them to look upon the defense of an alibi with great suspicion, it is yet the duty of the jury to consider the evidence in relation thereto and give it whatever weight they think it deserves.]</p> <p>[2. The court will not grant a stay of proceedings after verdict to enable counsel to prepare a bill of exceptions, where all the exceptions taken are based upon the merest technicalities, and there are none which go to the merits.]</p>

<p>Case No. 16,723.</p> <p>Tariff Acts—When Law Takes Effect.</p> <p>1. An act laying duties on goods imported, “from and after the passage of the act.” takes effect the beginning of the day on which it is assed. and not from the time of its being signed y the president.</p> <p>[Disapproved in Salmon v. Burgess, Case No. 12.262. Cited in Smith v. Draper, Id. 13.-037; American Wood-Paper Co. v. Glen’s Falls Paper Co., Id. 321a.]</p> <p>[Cited in brief in Kennedy v. Palmer, 6 Grey, 316.]</p> <p>2. But, in case of a prosecution for a forfeiture? Qnere.</p>

<p>This was a case of demurrer to evidence.</p> <p>be committed to the custody of the marshal without bail or mainprise, as for a contempt of the court in refusing to answer to the writ of habeas corpus, heretofore awarded against him at the relation of Mr. Wheeler.</p> <p>District attorney asked for warrant of commitment-under the seal of court. Granted.</p> <p>asked leave to amend the return so as to conform to the views of this court.</p>

2 [On the 18th day of July last, the Hon. John H. Wheeler, U. S. minister to Nicaragua, made application to the United States court for this district for a writ of habeas corpus, to be directed to one Passmore Williamson. The petition of Mr. Wheeler, verified by affidavit, was presented by his counsel, Mr. J. C. Vandyke, district attorney of the United States.

After the proceedings in this case as reported [Case No. 16,725], no further steps were taken in this court on the part of the defendant, until Wednesday, October 3, 1855, when Mr. Townsend and Mf. John M. Read, presented to the court a paper purporting to be “the suggestion and petition of Jane Johnson;” on which they moved for a rule to show cause why the writ of habeas corpus, issued against Passmore Williamson, should not be quashed.

Before the decision of the district court, on the principal question, a preliminary point, of some importance, was determined.

<p>moved to quash the indictment, which was at common law, for assembling to the number of ten or more, and playing at “snap and rattle.” or “in and out,” to the corruption of the public morals, and to the common nuisance of all the good citizens of the county of Alexandria. Private vices are not indictable. 4 Bl. Comm. 41. To play at any game is no crime at common law, even to play for money; therefore there can he no offence unless it be attended with such circumstances as would in themselves amount to a riot, or a nuisance, or to actual breach of the peace without the playing. 4 Bl. Comm. 171. All the penalties under the English law are statutory. If it were unlawful to play for money, no recovery for money won could be had at common law, yet such actions may be sustained, and the defendant even holden to bail. 2 Bac. Abr. 619, “Gaming,” A; 11 Coke, 87b. And the statutes of England only prohibited playing to a certain amount. The act of Virginia of the 8th of December. 1792. § 5, p. 175, which creates the offence, declares how it shall be punished, viz. by fine of 20 dollars upon conviction before a justice of the peace.</p> <p>admitted that he had no precedent for the indictment in all its parts, but contended that it is good as an indictment as a nuisance. It is sufficient to charge it to be to the nuisance of the citizens of the county of Alexandria. It is not neces- • sary that it should be charged as a nuisance to all the citizens of the United States. He admitted that gaming is not per se indictable at common law. The Virginia law shows that gaming is a pernicious vice and a public evil. Every kind of public gaming is therefore unlawful; every unlawful act is not an indictable offence, but every unlawful act done in a public manner and tending to corrupt the general morals of the community is a misdemeanor at common law. He admitted that private vices are not punishable at common law. But public lewdness, bawdy-houses. eaves-droppers, communis rixatrix, and the like, are indictable misdemeanors. Gaming in England is lawful, yet the keeping of a common gaming-house is indictable at common law, because it is injurious to society. The statute of Virginia punishes all gaming at a public place, but does not describe particularly the offence charged in this indictment. The punishment ought to be proportioned to the offence, but the statute punishes all alike by a fine of 20 dollars. If the statute declares a punishment of a common-law offence, and contains no negative words, you may still indict and punish at common law. It has been so decided in this court.</p>

The defendants were indicted under the 22d section of the act of the 3d of March, 1825, for robbing the mail of the United States with the use of dangerous weapons, and putting the life of the carrier in jeopardy. 3 Story 1992 [4 Stat. 121], The indictment was as follows: “Indictment. In the circuit court of the United States of America, holden in and for the Eastern district of Pennsylvania, of April sessions, in the year of our Lord one thousand eight hundred and thirty.

This was an indictment for a capital of- i fence, charging that the prisoner [George j Wilson], who was a colored man, being a i mariner, belonging to the schooner Eudora !

The defendant [L. M. Wilson] was indicted for forging an indorsement on a check drawn by the'pension agent of this district upon a depository of the United States.

Indictment for stealing a check on the office of discount and deposit, Washington, from a seaman. objected that the United States ought not to be suffered to give the testimony of the officer of the bank respecting the prisoner’s going to the bank with the check, unless they produced the check itself, and proved the handwriting of the drawer. THE COURT overruled the objection, unless the prisoner can show that the check is in the possession or power of the United States.

<p>Case No. 16,734.</p> <p>Mexican Land Orant—Determination op Bound* ARIES.</p> <p>[In determining the limits of the tract from the map, regard is to be had to the natural objects there laid down as bounding the tract, rather than to the distance of such objects from other natural objects as shown by the scale.]</p> <p>[This was a claim by Juan Wilson, the real party in interest being William Hood, for Guilicos, four square leagues, in Sonoma county, granted November 20, 1847, by Juan B. Alvarado, to Juan Wilson. Claim filed February 10, 1802. confirmed by the commission December 27, 1853, and by the district court March 3, 1856. Case No. 16,735.]</p>

Claim [by Juan Wilson] for a tract of land, supposed to contain four leagues, in Sonoma county, confirmed by the board, and appealed by the United States.

<p>[This was an indictment against Joseph L. Wilson. Motion to quash.]</p>

This was an indictment against the defendant [Peter Wiltberger], for the manslaughter of one Peters, a mariner on board the ship Benjamin Rush, committed by the defendant, the master of the said ship. The of-fence was charged to have been committed on board of this vessel, an American bottom, on the high seas. The evidence was, that at the time the offence is charged to have been committed, the ship lay at anchor in the river Tigris, off.

<p>[This was an indictment against L. N. Winchester-for perjury.]</p>

<p>The defendant was charged with having imprisoned, on board tbe ship Eliza, of Salem, “with force and arms, and from malice, hatred, and revenge, and without justifiable cause,” John B. Bassett, tbe first mate of the said ship, for the term of three months from the 10th day of February, 1836, and also for the term of three months from the 17th of October, 1836. The indictment was founded upon the act of March 3, 1835, § 3 [4 Stat. 776], which provides that “if any master or other officer of any American ship or vessel on the high seas, or on any other waters within the admiralty and maritime jurisdiction of the United States, shall, from malice, hatred, or revenge, and without justifiable cause, beat, wound, or imprison, any one or more of the crew of such ship or vessel, or withhold from them suitable food and nourishment, or inflict upon them any cruel and unusual punisment, every such person so offending shall,” etc. From the testimony of Bassett, which was confirmed in many respects by other witnesses, it appeared that when the ship was near the Feejee Islands, in February, 1836, Captain [John D.] Winn took offense at something he did and ordered him below. Soon after-wards he ordered him to set the evening watch, but witness refused to go upon deck, alleging that he had been sent from his duty with dishonor, and could not return unless he was honorably reinstated. Next morning Captain Winn imprisoned him in his room, which was very small, and ordered him to be kept on short allowance—a pound of beef and a pound and a half of yams per day. He also ordered the skylight to be darkened, and witness remained in this situation about three months. His food was brought to him but once' in twenty-four hours, and at different parts of the day, sometimes in the morning, sometimes in the evening, and sometimes not at all. The weather was so warm that he was obliged to keep naked all the time, and then his distress for want of pure air was very great, and the vermin were extremely annoying. The witness detailed several other circumstances attending his imprisonment which were disgusting, and need not be stated here. He finally returned to duty, but afterwards had more trouble with the captain, and was again confined in the same place for three months.</p> <p>declined arguing the case to the jury, but contended as matter of law that the defendant was not liable on the act of 1835. That act provided for the punishment of the master or other officer who should beat, wound, or imprison, etc., any one or more of the crew, thereby making a distinction between the “master,” “other officers,” and “the crew,” and not contemplating a case like the present, where the “master” was charged with imprisoning one of the officers. The act was intended merely for the protection of the crew from an abuse of power by those placed over them.</p>

Indictment against the defendant [John D. Winn], master of the ship Eliza, for having from malice, hatred and revenge, and without justifiable cause, on the high seas, beaten and imprisoned one John B. Bassett, one of the crew of the same ship, against the statute of March 3, 1835 (chapter 40, § 5).

The indictment against Thomas Winslow was for counterfeiting and passing a note of the Bank of Potomac, a private, unchartered bank. The prisoner pleaded guilty, and being recommended to mercy by the bank, in consequence of disclosures as to other offenders, THE COURT sentenced him to six months’ imprisonment, to pay a fine of 100 dollars, and to stand committed until the fine and costs should be paid.

<p>Case No. 16,743.</p> <p>Indictment—Christian Name op Defendant.</p> <p>1. A person was indicted by the name of D. K. Olney Winter. He moved to quash the indictment, on the ground that he was not described therein by any Christian name. Held, that the motion must be denied.</p> <p>2. When a person has selected a particular given name as the only given name by which he will be known, such given name becomes part of his legal name, and he is properly described by that name in an indictment, whether it stands first, or second, or third, in the order of his given names.</p> <p>[Defendant was subsequently convicted, but a motion in arrest of judgment was granted. See Case No. 16,744.]</p>

<p>Case No. 16,744.</p> <p>Indictment—Stealing Money prom Letter.</p> <p>An indictment, under section 5467 of the Revised Statutes, against an employee in- a post office, for stealing money from a letter, did not aver that the letter was one intended to be conveyed by mail, or that it had been deposited in any post office, or in the charge of the defendant, or that it came into his possession in the regular course of his official duty. Held, that the indictment was bad.</p>

The defendant [A. C. Wirt] was indicted for disposing of spirituous liquor to Indians under the charge of T. B. Odeneal, superintendent of Indian affairs, to wit: Michelle Martineau and William, contrary to section 20 of the trade and intercourse act of June 30, 1834 (4 Stat. 732), as amended by section 1 of the act of March 16, 1864 (15 Stat. 29).

<p>On the 12th of May, 1842, Judge Thruston issued a warrant charging that “there is probable cause to believe that the Honorable H. A. Wise and the Honorable Edward Stanly, members of the house of representatives, are about to commit a breach of the peace by fighting a duel, and that preparations are now making by said parties to commit said breach of the peace.” Mr. Wise was arrested and the return made by the marshal before Judge Morsell, of the circuit court</p> <p>Mr. Wise denied the right of any judge or justice in this district to require of him to give or sign any bond obliging him to keep the peace outside of the district, and pleaded his privilege from arrest as a member of congress, the warrant not charging actual breach of the peace.</p> <p>On the 14th of May, 1842, the honorable Messrs. Goode and Hunter of Virginia appeared as counsel for Mr. Wise before Judge Dunlop, of the criminal court</p> <p>Mr. Goode maintained the following propositions: 1st. That the warrant does not state on whose information the charge was made. 2d. That the warrant charges no specific offense. 3d. That the defendant, being a member of the house of representatives, he is privileged from arrest, except for an actual breach of the peace which is not charged in the warrant.</p> <p>Mr. Hunter cited the proceedings in the court of common pleas in England and the decision of Chief-Justice Pratt, settling the question as raised in the third objection2 in the celebrated Case of Wilkes3 that members of parliament are privileged from arrest except in certain cases named. That the constitution (article 1, § 6, cl. 1) provides that “they shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses.” Jefferson’s Manual4 was cited as establishing the point, and denied that he, the defendant, eould he arrested and held to hail, except for an actual breach of the peace, by any judge or justice of the peace in this District or elsewhere.</p> <p>The district attorney said that the privileges claimed by senators and members ought to be rigidly scrutinized and kept within narrow limits; if, indeed, in a form of government like ours, they could be tolerated at all. He disliked the name of “privilege.” It had, indeed, to use the language of Patrick Henry, “a squinting toward monarchy.” It was a privilege and English history would show to what' arbitrary lengths it had been carried even in a limited monarchy until the independence of the English judiciary bad checked it. In the Case of Hansard, 5 printer to the house of commons, the decision of Lord Chief-Justice Denman clearly showed that whatever might have been the decision in the Wilkes Case, the doctrine of parliamentary privilege, as formerly maintained and acted upon, was emphatically repudiated by an honest and upright judge uttering from the English bench sentiments that were in unison with law and the increasing liberality of the age. That laid down in Jefferson’s Manual was ill suited to the present age, and Jefferson himself would not have recommended a compliance with some of the forms and usages which were laid down- in his own manual. The court had jurisdiction and it had power to interfere to prevent a breach of the peace, and it was enough to charge in the warrant that “there was probable cause to believe a breach of the peace was about to be committed.”</p>

[The defendant [Julius Wittig] as one of the officers of a club existing in Clinton, Mass., as part of the National German Turn-verein, was indicted for carrying on the business of a retail dealer in malt liquors without payment of the special tax required of such dealers by the internal revenue laws of the United States.

[Appeal from the district court of the United States for the district of Massachusetts.] This action was debt for a penalty incurred under the 3d section of the embargo supplementary act, Jan. 9, 1808, c. 8 [2 Stat. 453].

<p>[Error to the district court of the United States for the Northern district of New York.]</p> <p>This was an action against the sureties on the official bond of one Scholefield, an assistant paymaster in the army, brought in the district court. At the trial, there was a verdict for the defendants [David S. Wood and others] and the United States brought the ease into this court by a writ of error.</p>

Indictment for resisting one Lewis, an inspector of the customs, in the execution of the duties of Ms office, founded on the 71st section of the act of March 2, 1799, c. 128 [3 Bior. & D. 200; 1 Stat. 678, c. 22].

Oa the 23d October, 1839, the United States recovered judgment against the defendant Wood for $12,469.14. The foundation of the judgment was that Wood had fraudulently entered goods at the customhouse at this port at prices below their actual -cost abroad, and had thus evaded the payment of the duties due on their importation.

The prisoner [William Wood] was indicted again, for aiding and assisting in the robbery of the mail, putting the life of the carrier in jeopardy, by the means of dangerous-weapons. 2d. For simply robbing the mail. The evidence was nearly the same as that given upon the former indictment [see Case No. 16,757,] except that Joseph Hare, who was examined as a witness, in behalf of the prosecution, had since died.

<p>Case No. 16,755a.</p> <p>IMPRISONMENT POR DEBT — ACT ABOLISHING — Debts Fraudulently Contracted— Duties on Imports.</p> <p>[1. The act of congress abolishing imprisonment for debt applies to any continuing imprisonment or detention under arrests made prior to its enactment.]</p> <p>[2. Money due the United States as duties on imports is a debt fully contracted immediately on the importation of the goods. Therefore fraud of the importer in inducing the government to accept less than the whole sum due does not make the balance a debt fraudulently contracted, so as to subject importer to arrest in a civil suit to recover such balance].</p> <p>[Cited in brief in U. S. v. Hewes, Case No. 15,359.]</p> <p>[See Cases Nos. 16,751 and 16,755.]</p>

<p>Case No. 16,758.</p> <p>Selection of Jurors—State Practice—Rules of Court.</p> <p>1. A jury being called, the counsel for the defendant objected, on the ground that the jury had not been selected as the act of congress requires.</p> <p>2. That act requires, in the selection of jurors, that the state practice, as near as may be, shall be followed.</p> <p>3. It was held, that the defendant had a right to claim the selection of jurors according to law, and on that ground his cause was continued.</p> <p>4. And the court adopted a rule, that at a proper time before each term, names of suitable persons for jurors should be selected throughout the- state, put into a' box, and a sufficient number drawn out, and inserted in the venire as jurors.</p> <p>[Followed in U. S. v. Collins, Case No. 14.-837. Cited in Brewer v. Jacobs, 22 Fed. 234; U. S. v. Richardson, 28 Fed. 69.]</p> <p>[Reported by Hon. John McLean, Circuit Justice.]</p>

<p>Case No. 16,759.</p> <p>Internal Revenue—Illegal Sales op Liquor— Retailer—Janitor op Club.</p> <p>[Sales of liquors belonging to a social club by the janitor thereof to the individual members, the money being deposited in the treasury of the club, makes the janitor a retail liquor dealer, and subject to indictment, where no special tax was paid.]</p>

<p>Case No. 16,760a.</p> <p>Mubder—Insanity as Defense—Insanity Causeo by Drunkenness—New Trial.</p> <p>1. Insanity caused by drunkenness, where the party is not intoxicated at the time of the commission of the offense charged, excuses as much as any other form of insanity contracted involuntarily.</p> <p>2. Where a prisoner has been for a long time so far of unsound mind, frequently if not uniformly, as to be wholly unconscious and irresponsible for his acts, held, that a knowledge of the above, after conviction, will not be a reason for granting a new trial.</p>

<p>Case No. 16,762.</p> <p>Pleading in Federal Courts — Demurrer for Want of Jurisdiction — Violation of Embargo Laws — Locus of Suit—Retrospective Laws.</p> <p>[1. The federal courts being courts of limited jurisdiction, the declaration must aver facts bringing the case within the cognizance of the court sued in; and if, in the case of a local action, such as an action of debt to recover a penalty for a violation of the embargo laws, no venue is laid, or a wrong one is averred, and this appears on the face of the pleading, the defect may be taken advantage of by demurrer.]</p> <p>[2. Act Feb. 28, 1839 (5 Stat. 321). which provides that all pecuniary penalties and forfeitures accruing under the laws of the United States may be sued for in the district where such penalties or forfeitures have accrued, or in which the offender may be found, repeals by implication the previous laws requiring such suits to be brought only in the district where the penalty accrued. As this act relates only to the remedy, it is retrospective in its operation, and therefore an action of debt to recover a penalty for violation of the embargo laws of 1807-1808 (2 Stat. 473) may now be brought in the district where the offender may be found.]</p> <p>[3. Where, in order to give jurisdiction, it is necessary that the defendant shall be found within the district, a mere statement in the declaration that the defendant “being in custody, etc.," is insufficient.]</p>

<p>Case No. 16,763.</p> <p>Limitation op Action—Embargo Act.</p> <p>[1. The limitation of actions prescribed by Act March 2, 1799, § 89, continues to apply to suits brought for penalties under the embargo act of 1808.]</p> <p>[2. When a statute is made in addition to another on the same subject-matter, without express words of repeal as to any part of the former, the provisions of both must be construed together.]</p>

Trials of Hon. James Workman and Col. Lewis Kerr on a charge of joint misdemean- or in planning and setting on foot within the United States an expedition for the conquest and emancipation of Mexico, a colony and possession of the kingdom of Spain, in violation of Act Cong.

<p>This was an application to discharge the defendants [Charles Worms and John Reiga] from custody.</p>

<p>[This was an indictment against Henry Wrape, James Wilkerson and others for a eon-spiracy to commit an offence against the United States.]</p>

<p>Case No. 16,768.</p> <p>Prize—Enemy’s Vessel—Confederate Officer in Command—Evidence—Right of Search— Termination of Hostilities.</p> <p>[1. The carrying of military or naval persons in the service of the enemy to enemy ports subjects the offending vessel to condemnation.]</p> <p>[2. The captured vessel was commanded by a Confederate naval officer, who had been frequently employed in purchasing vessels for the Confederacy. There were no instructions for the voyage on board, but previous to the capture there had been a flagrant destruction of papers, and the vessel contained a Confederate flag. The master was directed to deliver the vessel, not to the asserted owner, but to other persons, and he had in his possession an order, payable on delivery of the vessel in Liverpool, which was signed by the agent of the Confederacy at Havana, who. it was claimed, was also the agent of the owners, but no claim for the vessel was made by such alleged owners or such agent. Held, that a condemnation was justified.]</p> <p>[3. In time of peace the naval vessels of one nation have no right, except under treaty stipulations, to search or visit the vessels of another nation.]</p> <p>[4. Where, though no right of search exists, a seizure is made, and it turns out that the vessel has no right to the flag under which she was sailing, the nation to whom such flag be-lohgs has no ground of complaint.]</p> <p>[5. So long as the cruisers of an expired rebellion are still recognized as in any respect entitled to the privileges of national vessels of war, the claimants of vessels captured as belonging to the rebel organization cannot argue that the state of war has ceased to exist, especially when the captured vessels are sailing under the flag of a nation which at the date of capture continues to recognize a state of war as existing.]</p> <p>[6. The liability of the captured vessel to condemnation is not affected by the right of the captors to prize money.]</p> <p>[7. Nor is it affected by the fact that the capture was brought about by a revolt of the crew.]</p> <p>[The case was appealed to the supreme court, where the decree was reversed, and the vessel restored, but without costs. 6 Wall. (73 U. S.) 582.]</p>

<p>Case No. 16,770.</p> <p>Violations of Internal Revenue Laws—Limitation in Respect to Prosecutions.</p> <p>[By the act of April 30, 1790 (1 Stat. 112]. all prosecutions for offenses not capital, or for fines or forfeitures under any penal statute, are barred unless the indictment or information is found or instituted within two years from the date of the offense. The act of March 20, 1804. in its third section, provides that any person 'guilty of any crime “arising under the revenue laws of the United States,” or incurring any fine or forfeiture by breaches of said laws, may be prosecuted, etc., provided the indictment or information be found within five years from the date of the offense, any law or provision to the contrary notwithstanding. Held, that the act of July 13. 1866 (14 Stat. 98). entitled “An act to provide internal revenue to support the government,” ecc., is a “revenue law,” within the meaning of the latter statute, and that prosecutions thereunder may be instituted within, five years.]</p> <p>[The case was submitted to the jury after the opinion of the court had been delivered, and a verdict of not guilty rendered.] 1</p>

<p>Case No. 10,771.</p> <p>Courts—Jurisdiction.</p> <p>A slave in Alexandria may be tried in this court for larceny.</p>

<p>The indictment in this case charged that the defendant [Henry Wright] at the county of Washington in the District of Columbia, with intent to defraud the United States, fe-loniously uttered and published as true, and caused to be uttered and published as true, certain forged papers and documents respecting a pension, against the peace and government of the United States. Another count charged that the defendant at the said county of Washington, feloniously caused the said forged papers and documents to be uttered and published as true.</p> <p>Upon the trial, N. B. Vanzandt, a witness sworn on the part of the United States, testified that he had received several letters from a person, who signed his name H. Wright. That the prisoner afterwards came to his office and conversed with him on the subject of the claims to which those letters referred. That he never saw him write. ' That the letters now shown to him are in a handwriting like that of the letters which he had received, signed H. Wright; but these letters were not produced.</p> <p>objected to Mr. Vanzandt’s testifying as to the similarity of the handwriting, especially as the letters to Mr. Vanzandt were not produced at the trial,- and as there was no evidence that they were written by the defendant.</p> <p>cited Phil. Ev. 364.</p> <p>If the facts stated in the special verdict amount to an uttering or publication, it was complete in Tennessee, when the defendant put the letter into the post-office there. If the offence be complete there, he cannot be tried here for the same offence. He did no act afterwards. His crime could not depend upon the act of the paymaster-general. There is no law making the uttering and publication of such papers a crime. At common law, it must be of a paper of a public nature, and to the prejudice of another person’s rights. It is no crime at common law to publish as true a forged paper at a place where it was not forged. 1 Hawk. P. C. 182, c. 70; 4 Bl. Comm. 247.</p> <p>This court cannot send the defendant to Tennessee to be tried;, and if it could, this is an indictment at common law, and there can be no common-law offences against the United States in Tennessee. All common-law offences there, are offences against the state of Tennessee, not against the United States. The United States courts have no common-law criminal jurisdiction.</p> <p>The publication of a forged release is indictable at common-law. Com. v. Searle, 2 Bin. 332. The receipt and opening of the letter in Washington, is a publication tiñere. Rex v. Johnson, 7 East, 65. Inclosing and sealing them up in Tennessee was certainly no publication in Tennessee. He caused them to be uttered and published in Washington, by inclosing and sending them by the mail.</p> <p>The defendant had never been in the District of Columbia until long after the receipt and opening of the letter containing the forged papers. The case of Rex v. Johnson, cited from 7 East, 65, is a case of publication of a libel in London, written by the defendant in Ireland. The procurer and the publisher were both guilty of the publication; if it had been a case of felony, Cobbet, who published it in London, would have been the principal, and Johnson would have been an accessory; but in misdemeanors there are no accessories, and he was therefore a prineipaL</p> <p>Judgment for the defendant, on the special verdict</p>

Motion in arrest of judgment. The defendant [Ellery C. Wright] was indicted for an assault committed on land ceded in the year 1828, by the commonwealth of Massachusetts, to the United States, for the erection of a light-house. The offence was charged in a way which would be sufficient by the law of the state, but did not contain any averment that the offence was in fact punishable by the laws of the state, or that it was not punishable by the laws of the United States.

[Ia error to the district court of the United States for the district of Ohio.] ' The district attorney appeared on the part of the plaintiffs, and the defendant [John C. Wright,] appeared in his proper person. •

An action of debt upon a postmaster’s bond to recover from the sureties the amount due the government upon the defalcation of the principal. Parties waived a jury and submitted a statement of facts, upon which the court was to find a verdict for the plaintiff or defendants according to the law in the case. The facts agreed to were substantially .and in brief these: Mr. Wright was appointed postmaster of Princeton March, 1870, and duly executed an official bond, with Messrs.

[This was an application by Andrew Henderson for a writ of habeas corpus to be directed to Captain E. S. Wright, of the United States army, for tlie purpose of procuring the release of an enlisted minor. The writ having been granted, the command thereof was obeyed by producing the body of the enlisted man in court.]

[This was an application by Elizabeth Turner for a writ of habeas corpus, directed Capt. E. S. Wright of the United States-army, to procure the release of an enlisted minor. Heard upon the return to the writ.].

<p>At law.</p> <p>[Error to the district court of the United States for the Southern district of New York.]</p>

<p>Case No. 16,783.</p> <p>Evidence—Production of Books and Papers bt the United States.</p> <p>1. Although a bill of discovery will not lie against the United States, yet under Rev. St. IT. S. § 724, which is a re-enactment of the statute of 1789, c. 20, § 15 [1 Stat. 82], the United States will be compelled to produce the official weigher’s returns of the weight of merchandise, on the motion of a defendant sued for a balance of duties alleged to be due thereon, the defence being that the duties are fully paid, and the motion being supported by affidavit that an inspection or copies of the returns is necessary to enable the defendant to prepare for trial.</p> <p>[Cited in U. S. v. Hutton, Case No. 15,433.]</p> <p>2. The remedy given by the statute is not confined to production of books and writings upon the trial.</p>

Action on an officer's bond. The United States sued the defendant [William P. Zant-zinger] on his bond, claiming that the defendant, a purser in the navy, was responsible for a deficit in his account of $9,149.75.

Claim [by George C. Yount] for two square leagues of land in Napa valley, confirmed by the board, and appealed by the United States.

On the 4th of July, 1840, 10th of August, 1840, 2d of September, 1840,- 7th of October, 1840, 9th of November, 1840, 1st of December, 1840. and 5th of January, 1841, .various-judgments, amounting in all to 23, were obtained in this court, in favor of the United States, against the defendant [Augustus Zerega], on bonds executed by him to secure the payment of duties which had accrued upon importations of dutiable articles into this port.

[This was a bill in equity for infringement of reissue patent No. 4,134, to Riley and Bis-sell (original, 95,517), for a composition for covering boilers.]

This was a suit in equity under the 3d and 4th claims of reissue No. 4,134, Sept. 27th, 1870, originally granted Bisseil, Riley & Fra-zer, Oct. 5, 1869. for “improved composition for covering steam boilers,” and under 2d and 3d claims of patent No. 114.711, granted Riley, assignor, 9th May, 1871, for the same subject-matter..

<p>Case No. 16,789.</p> <p>Patents—Infringement—Steam Boilers.</p> <p>1. The defendants coated the pipes of steam boilers with an inner coating of a mixture of clay and asbestus, crushed or ground, with the addition of a little hair and some other fibrous substance. The next coat was a mixture of clay and charred fiber of cocoa-nut, or ground cane, sawdust, wool or shoddy. Outside of this was a thin wash of lime with a slight mixture of hair. Outside and around the second coat in some instances was a mass of fiber wood covered with lime. Held, that this was an infringement of the first claim of complainant’s patent for a composition for coating the exterior of steam boilers, pipes or other heated surfaces composed of asbestus and lime-putty, charcoal and pumice-stone, or their equivalents.</p> <p>2. Held to infringe the second claim of complainant's patent for a composition for the same purposes, composed of asbestus and lime-putty.</p> <p>[For othei cases involving reissue patent No. 4,134 (original 95,517), see note to United States & Foreign Salamander Felting Co. v. Asbestos Felting Co., Case No. 16,787.]</p> <p>[For othei cases involving patent No. 114/711, see Cases Nos. 16,787a and 16,788; also 4 Fed. 813, 816.]</p>

In equity. This was a motion for a provisional injunction, to restrain the defendants [James M. Sanderson and Charles L. Mather] from the violation of letters patent ■originally issued June 24th, 1846, upon the invention of Timothy D. Jackson and Alfred Judson, to Edward Crehore, Horace Brooks, and Timothy D. Jackson, for a new and useful bell telegraph.

This was an action of assumpsit, brought by the United States Branch Bank, at Boston, against Amos Binney, John Binney, and John Winship, upon certain promissory notes, made by one Samuel Jaques, Jr., and indorsed by said Winship, which had been discounted at the bank, and protested for non-payment.

This was an action of debt by the United States Life Insurance Company against Alfred B. Adams, the agent of the company, and his sureties. The declaration was on a bond in the penal sum of two thousand dollars, dated the 4th day of November, 1870, executed by the agent and other defendants, conditioned for the faithful performance by him of his duties as the agent of the insurance company, while transacting business in this state.

<p>Case No. 16,792a.</p> <p>Salvage—Navigation of Infected Ship.</p> <p>[Where a steamer deprives itself of its third mate in order that he may navigate a ship which has lost its officers through yellow fever, and the steamer is merely delayed half an hour, and otherwise, except that more work is imposed on the other officers, no loss is incurred, the third mate, who endangers his life by going on the infected vessel, and brings her safe to port, is entitled to the major part of the salvage allowed.]</p>

<p>Case No. 16,793.</p> <p>Application fob1 Patents — Abandonment — Laches—Public Use.</p> <p>1. C. applied for;a patent in January, 1859. The application was rejected in February, 1859. No appeal was taken. In February, 1860, the application was withdrawn, and the balance of the fee was refunded. In May, 1868, C. filed a new application, which was rejected on the ground of abandonment. This decision was affirmed by the commissioner of patents, and his decision was reversed by the supreme court of the District of Columbia. The commissioner then declined to issue the patent. After the passage of the patent act of July 8, 1870 (16 Stat. 198), a new application was filed, and the patent was issued, it being for "improvements in breech loading guns.” During the 8 years from i860 to 1868, C. obtained 22 patents on his own application, 9 of them relating to breech-loading fire-arms, and though, during a part of the time, he was poor, and in debt, and in ill health, he prosecuted his other inventions with energy. During the same interval patents were granted to others embodying his inventions: held, that, under section 35 of said act of 1870, which provides that, upon the hearing of the renewal, provided for by that section, of an application before rejected or withdrawn, “abandonment shall be considered as a question of fact,” the decision of the commissioner on the question of abandonment is not final, but may be reviewed in a suit brought on the patent.</p> <p>[Cited in Woodbury Pat. Planing Mach. Co. v. Keith, Case No. 17.970. Cited in brief in Fassett v. Ewart Manuf’g Co., 58 Fed. 364.]</p> <p>2. No laches could be imputed to C. after May, 1868.</p> <p>[Cited in Colgate v. W. U. Tel. Co., Case No. 2,995.]</p> <p>3. His invention was abandoned before May, 1868.</p> <p>[Cited in Colgate v. W. U. Tel. Co., Case No. 2,995; Kittle v. Hall, 29 Fed. 514; United States Electric Lighting Co. v. Consolidated Electric Light Co., 33 Fed. 871.]</p> <p>4. The use of an invention for mere competitive examination, experiment, and test, is not a public use.</p> <p>[Upon an appeal to the supreme court, the de•cree of this court was affirmed. 118 U. S. 23, ■6 Sup. Ct. 950.]</p>

[Bill in equity to restrain alleged infringement of letters-patent [No. 101,583], for an improved steam-gauge, originally granted Elijah Clarke April 15, 1870, reissued to the complainant March 5, 1872 [No. 4,775]; and for an account. The alleged infringement consisted in the manufacture and sale, by the defendant, of steam-gauges, constructed substantially according to a patent granted one T. C. Hargrave for improvement in registering steam-gauges, March 19, 1872.

<p>[This was an action by William Unthank against the Travelers’ Insurance Company of Hartford, Conn., upon an accident insurance policy.]</p>

<p>Case NTo. 16,796.</p> <p>Mortgages—Redemption — Parties in Equity— Trusts.</p> <p>1. Where, in a bill in equity, to redeem a mortgage given to secure the mortgagee against an incumbrance upon another estate purchased' by him, the plaintiff claimed as owner of the equity of redemption, against the defendant, who was assignee of the mortgage, and the bill did not set forth, that the condition of the mortgage had been fully performed and the incum-brance extinguished; it was held, on demurrer, that although, in law, the mortgagor could not recover the land mortgaged from the mortgagee, and those in possession under him without an actual extinguishment of the incumbrance, yet that, in equity, he was entitled to maintain a bill to redeem unon an offer to redeem, and proving himself able and ready to discharge the incumbrance and procure releases thereof, and of claims on account thereof.</p> <p>[Cited in Merrill v. Merrill, 53 Wis. 526, 10 N. W. 686.]</p> <p>2. Where A. was the legal owner of land, which he held in trust for B. as security for advances made by him on account of the purchase by B., it was held, that A. was a necessary party to a bill brought by B. in respect of a claim arising upon such lands; and, as the bill did not make him a party, it was held, on demurrer, not to be maintainable.</p> <p>[See Case No. 16,797.]</p>

<p>Case No. 16,797.</p> <p>Mortgages—Conveyance of Mortgaged Laxos— Redemption—Insolvency—Rents and Profits.</p> <p>1. Where A. mortgages land to B. to indemnify him against an incumbrance on other land in favor of S., and then B. conveys this other land to C. with covenants against incumbran-ces, and specially agrees to redeem that one to S., it seems that C. is entitled to indemnity from the mortgaged premises, if he has been evicted or been obliged to pay the incumbrance to S.</p> <p>[Cited in Huxley v. Rice, 40 Mich. 81.]</p> <p>2. His right to this is strengthened by being assignee and grantee of A. the mortgagor;’ and these enable him to recover possession of the mortgaged premises from D. an assignee of B„ on paying any debt from B. to D. secured in the mortgage.</p> <p>3. But when the mortgage of A. to B. has been assigned by B. to I).. the land cannot be held by D. against third persons entitled to redeem for any sum due from B. to D. and not included in any mortgage.</p> <p>4. If B. has become insolvent, and a remedy against him on his covenant would be worthless, yet C. if taking the land mortgaged by A. to B. should obtain releases to B. on his covenants to C. and others, or file a good bond of indemnity against them.</p> <p>5. D. is trustee of this land to indemnify against the incumbrance to S.</p> <p>6. In this case, D. in possession must pay rents, when they ought to have been received, whether actually collected or not.</p> <p>7. Quaere, if liable for rents received by a previous occupant.</p> <p>8. When a debt or liability secured by a mortgage has been discharged by the mortgagor or his assigns, the mortgagee and his assigns are trustees to make a reconveyance, and a court of equity will enforce one.</p> <p>9. All privies in title and interest, as well as the mortgagor, have a right to redeem.</p> <p>10. Whether a decree could be entered for any surplus of rents, &c. received, quiere.</p> <p>[Cited in Jewett v. Cunard, Case No. 7,310.]</p>

In bankruptcy. Motion for a new trial, after verdict for an unpaid subscription to stock, in a suit by the assignee in bankruptcy. The defendant, Telford Burnham, in the spring of 1871, purchased of one M. F. Hale fifteen shares of stock, of $1,000 each, in the Great Western Insurance Company of Chicago, upon which only twenty per cent, had been paid.

In bankruptcy. This was an action on the ease by Clark W. Upton, assignee of the Great Western Insurance Company, bank-. rupt, to recover eighty per cent, unpaid on $15,000 of stock held by the defendant. The defendant claimed that though he was the equitable, he was not the legal owner of the stock, which he insisted had never been regularly transferred to him, and therefore he was not liable upon it.

On demurrer to second special defence-pleaded in the answer. The action is by the-plaintiff [C. W. Upton] as assignee in bankruptcy of the Great Western Insurance Company of Chicago, to recover of the defendant [Andrew Englehart] the amount due on a. contract by which the defendant in September, 1870, became, as it is alleged, the purchaser of five shares of stock in that company.

In bankruptcy. The Great Western Insurance Company, of Chicago, was organized in 1857, under a special charter granted by the legislature of the state of Illinois, with an authorized capital of one hundred and fifty thousand dollars ($150,000).

<p>Casa No. 16,802.</p> <p>Corporations—Authority or D[hectors—Transfer of Charter— Increase of Stock—Estoppei, —Transfer of Stock — Fraud—Assessments— Assignee in Bankruptcy.</p> <p>1. Assignee in bankruptcy, who is the plaintiff. sued defendant, who is a stockholder, to recover for unpaid stock. Held, that if the original charter was transferred by directors without authority of stockholders, the transfer would be invalid, and the transferee would take nothing. On the other hand, if as stockholders the shareholders subsequently participated in the company’s business under a new management, or permitted the scheme to be carried out without objection, they were estopped from denying the validity of the transfer.</p> <p>2. The charter originally limited the amount of the stock, but on certain conditions, prescribed by the legislature, authority was given to increase it. Parties, claiming the right to do so, complied with the required conditions and issued additional stock. Now as between the purchasers or holders and the corporation or its creditors—the former are estopped from denying the validity of their proceedings, or the validity of the stock so issued.</p> <p>3. If, through fraud or misrepresentation, parties purchase such stock, they may repudiate their contract of purchase and be relieved of liability, provided they act promptly and are without laches. But when repeated assessments have been paid by them, or they have in person or by proxy taken part in the meetings of stockholders, continuing to hold such stock a year or more, and until the insolvency of the company, it will be too late to obtain relief upon allegations of fraud and misrepresentation.</p> <p>4." As against creditors, stockholders or directors have no power to exempt themselves from liability, when only twenty per cent, of the stock has been paid in, by passing a resolu.tion declaring that the remaining eighty per cent, is non-assessable and printing the words “non-assessable” across the stock certificate.</p> <p>5. The interests of creditors and likewise of the bankrupt are represented by the assignee, and he can recover so far as the question touches upon the validity of the stock, as if solely acting in the interests of creditors.</p> <p>See Chubb v. Upton, 05 U. S. 665; Pullman v. Upton, 06 U. S. 32S: Upton v. Tribilcock, 01 U. S. 45: Webster v. Upton, Id. 65; Sanger v. Upton, Id. 56; and Hawley v. Upton, 102 U. S. 315,—affirming the principles here laid down.</p>

<p>Case No. 16,803.</p> <p>Collision in New York Bat—Tug and Tow— Ligiits—Steamer and Sailing Vessel.</p> <p>1. A steamtug, the G., was going up the bay of New York, near the Narrows, at night towing astern on a hawser the brigantine C. They were heading north northwest. The G. had' the usual side lights, and a bright light astern,, but she did not have two bright lights set vertically, to indicate that she had a vessel in tow. The brig T. was going down the bay, heading-about south by west, with the wind about northwest. The lights of the G. were seen from the T. .nearly ahead and crossing from port to starboard. The T. kept her course, and did not see the G. - till she was but a short distance from the C., when the helm of the T. was starboarded. The helm of the C. was also starboarded, but the T. struck the C. a glancing blow on her starboard quarter. The owners of the C. filed a libel against both the G. and the T„ álleging fault in the G. that she did not have the proper lights set, and did not keep the C. clear of the T., and- fault in the T. that she was not on her proper course, but was heading too much to the west, and that she kept on her course and ran into the C. The answer of the G. charged fault in the T., that, after passing the G., she changed her course to the westward, and ran into the C., and the answer of the T. charged fault in the G., in not having the proper lights set to indicate that she had a vessel in tow. The C. was in charge of a. pilot, who had the direction of both the C. and the G.: Held, that the courses of the vessels were crossing courses.</p> <p>2. The tug and tow were to be treated as a single vessel under steam, and it was their duty to keep out of the way of the T.</p> <p>[Cited in The Fred W. Chase, 31 Fed. 96.]</p> <p>3. The T. was not off her proper course, and did not change her course improperly, and was not in fault in not sooner seeing the C.</p> <p>4. Under the 4th article of the rules for preventing collisions (notwithstanding the 11th section of the act of July 25, 1866 [14 Stat. 228]), the G. was bound to have had two white lights set vertically, to indicate that she had a vessel in tow, and was in fault for not having them; and such fault contributed to the collision.</p> <p>[Cited in The F. & P. M. No. 2, 36 Fed. 266.]</p> <p>5. The C. must, as between herself and the T., bear the responsibility of the fault of the G. as to lights.</p> <p>6. The T. was not in fault, and the C. was not in fault in starboarding.</p> <p>7. In the absence of directions given to the master of the G. by the pilot on board of the C., the former was bound to keep the C. out of the way of the T., and the G. alone was liable for the damages sustained by the C.</p>

<p>Case No. 16,804.</p> <p>Tug and Tow — Negligent Navigation —Ice — Admissions op Fault.</p> <p>1.A tug took in tow a canal-boat loaded with coal, to tow her through Hell Gate. While so being towed, the canal-boat was run upon Flood Rock and sunk. The owner of the coal libelled the tug to recover the damages sustained by it. It was claimed for the tug, that there was ice in the river which crowded between the canal-boat and the boat next to her. and forced her bows off, and she therefore touched the rock. It was also claimed that, as the tow approached Flood Rock, she got into a field of soft ice which prevented her steering, and she was carried by the current on the rock. There was evidence that the owner of the tug had admitted his liability, which he denied. But he had paid the owner of the canai-boat for his damages, taking from him a statement to be used against the owner of the cargo: Held, that the allegation of ice forcing itself between the boats was not made out, but, if it had been, it would have been negligence on the part of the tug to have proceeded with the tow in that condition.</p> <p>[Cited in The M. J. Cummings, 18 Fed. 184.]</p> <p>2. If there was such a field of mush ice. as was claimed, the tug should have waited till it passed, before attempting to go through the Gate, or should have taken the ice in such a way as to have kept her tow clear of the rock.</p> <p>[Distinguished in The Gen. Wm. McCandless, Case No. 5,322.]</p> <p>3. The tug might well be held liable upon the evidence of the admissions of the owner, coupled with the transaction between him and the owner of the canal-boat.</p> <p>[Cited in The Hattie M. Spraker, 29 Fed. 459.]</p>

The land in question, section 14, T. 12, R. 20, in Leavenworth county, is part of the land which the Leavenworth, Pawnee, and Western Railroad Company was authorized to purchase by the treaty with the Delawares, of 1860 and 1861 (12 Stat. 1129, 1177). The name of that company was changed, and the Kansas Pacific Railway Company is its legal successor.

This was a libel in rem against the schooner Utility, for supplies of ship-chandlery fur■nished her by the libellant at New-York. The vessel was owned in North Carolina. The supplies were furnished between the months of May and November, 1828. Her then master was part owner of her at that ■ time. She left New-York after receiving the supplies, with the knowledge of the libellant, and without any attempt on his part to detain her.

This was an action by William R. Utley, George W. Dougherty, and Albert L. Scott against John W. Donaldson and Moses Fra-ley to recover damages for alleged breach of a contract of sale of certain bonds.

This was a libel in personam, promoted by several of the crew of the fishing schooner, E. C. Haskell, of Gloucester, against the owner, to recover a balance alleged to be due them on settlement. This balance was withheld, by the owner, to pay the contribution which he claimed was due from them toward certain salvage and general average expenses, which were incurred on the voyage.

<p>Case No. 16,809.</p> <p>Deeds—Delivery—Innocent Puhchasers—Rents and Improvements.</p> <p>1. The delivery of a deed is essential to its validity.</p> <p>2. Where possession of a deed was fraudulently obtained by the grantee, and he conveyed to innocent persons, who entered upon the land and made lasting and valuable improvements, and were permitted to retain possession several years, they are entitled to compensation for their improvements.</p> <p>[Cited in Tufts v. Tufts, Case No. 14.233. Cited in brief in Reamer v. Lamberton, v>9 Pa. St. 463.]</p> <p>3. In such a case the annual rents and profits will be deducted from the value of the improvements.</p> <p>4. Where one party has refused to perform * the contract, and the vendor, for instance, obtains possession of the land sold, the vendee, under such circumstances, cannot recover back the money paid.</p> <p>[Cited in Dudley v. Hayward, 11 Fed. 546.]</p> <p>[Cited in Ashbrook v. Hite, 9 Ohio St. 364.]</p>

<p>This was an action against [Hugh Maxwell] the collector of the port of New York, to recover back an excess of duties and a penalty. The jury found a verdict for the plaintiff [Joseph Vaccari], subject to the opinion of the court on a case.</p>

[This was an action of assumpsit by Au-gustin Valarino against William D. Thompson, consul. For opinion overruling a demurrer to the declaration, see Case No. 16,-813a.]

This was an insurance on goods, at and from Norfolk to Newbera, in North Carolina. When the captain left the bay, and after he got out at the capes of Virginia, the wind blew very hard. Captain Kenris, in a vessel destined for Newbem, left Norfolk three days later, being afraid of the weather; and when he arrived at Newbera. the unsound vessel had not arrived.

<p>Case No. 16,812.</p> <p>Bankruptcy—Proof op Claim by Creditor— Full Names.</p> <p>In proving a claim against the estate of a bankrupt by a creditor, founded on a note made to him by the name of A. G. Wallace, the first Christian name of the creditor ought to appear in the documents offered in evidence, or in the •record of the proceeding; and it is not sufficiént that the initials of the creditor’s Christian name alone appear.</p> <p>NOTE. The pleadings should set- forth the Christian and surnames of all parties, plaintiff and defendant, and also of others of whom mention is made in the pleading. Steph. Pi. 302.</p> <p>The full names of the parties should be stated. Hays v. Lanier, 3 Blackf. 322; Livingston v. Harvey, 10 Ind. 218. But the omission of the Christian name of the plaintiff in the statement of a claim against a decedent’s estate, is only matter in abatement, and the objection may be obviated by amendment. Peden’s Adm’r v. King, 30 Ind. 181. A middle name or initial is no part of a man’s name, and its insertion or omission is immaterial. Edmundson v. State, 17. Ala. 179; McKay v. Speak. 8 Tex-. 376; King v. Hutchins, 8 Post. (N. H.) 561; Allen v. Taylor, 26 Vt. 599; State v. Manning. 14 Tex. 402; Thompson v. Lee. 21 Ill. 242; Erskine v. Davis, 25 Ill. 251; Bietch v. Johnson, 40 Ill. 116; Isaacs v. Wiley, 12 Vt. 674; Games v. Stiles. 14 Pet. [39 U. S.] 322.</p> <p>The words “Junior” or “Senior” are no part of a man’s name. Coit v. Starkweather, 8 Conn. 289; People v. Cook, 14 Barb. 259; Head-ley v. Shaw, 39 Ill. 354. Where there are two of the same name it will be presumed that the elder is meant, unless otherwise shown. Bate v. Burr, 4 Harr. (Del.) 130.</p> <p>It has, however, been held that a single letter may be presumed to be an entire Christian name. Tweedy v. Jarvis, 27 Conn. 42; and Lord Campbell, C. J., has held that “Lee B.” and “I. H.” might be the Christian names and not merely initial letters. Reg. v. Dale, 5 Eng. Law & Eq. 360.</p> <p>The courts can take judicial notice of the abbreviation of a man’s name. Lenton v. Perkins, 3 Miss. 144. If one is in the' habit of using only initial letters for his Christian name, a declaration against him by that name is good. City Council of Charleston v. King. 4 M’Cord, 487; Wood v. Bulkley, 13 Johns. 486.</p>

<p>Case No. 16,812a.</p> <p>INFRINGEMENT OP PATENT—ACTION BY ASSIGNEE —Validity op Issue.</p> <p>[1. One haying only a partial interest in a patent right cannot alone sue for its infringement.]</p> <p>[2. In an action by the assignee- of a patent for an infringement, defendant cannot set up the fact that the assignment was not recorded, if he had actual or constructive notice of the assignment when the infringement was committed by him.]</p> <p>[3. When a patent is claimed for an improvement, it is not necessary to set forth in the specification a detail of the old machinery, in order to determine the novelty and the utility of the improvement claimed.]</p> <p>[4. By claiming particular things in a combination as new and his, the patentee does not relinquish his right to the entire combination, so far as it is contained or adjusted by him, with a view to his discovery, though in his summary he does not reiterate his method for carrying his invention into execution.]</p> <p>[5. The' inventor, to sustain his property in his discovery, is not bound to prove that he uses every particular mentioned in his description, but may be left to his discretion to employ or not such as he deems merely incidental, and not essential, parts of the invention, if those things material to the novelty and utility of the invention are retained.]</p>

<p>[Buie for attachment for contempt in the suit of Henry Valentine and Alexander Caselli against James Beynolds and Andrew Marshall.] '</p>

<p>Case No. 16,813a.</p> <p>Suit against Foreign Consul.</p> <p>[The consul of - a foreign nation can be sued alone in the United States district court on- -a contract executed by him jointly with another person.]</p>

Abraham Valk and James S. Valk filed their voluntary - petition in bankruptcy in this court, on the 15th of December, 1868, and were adjudicated bankrupts on the 21st of December, 1868.

2 [This was a petition for a writ of habeas corpus by Clement L. Vallandigham, a citizen of Ohio, alleging that he was unlawfully arrested at… Held: on the application for a writ of habeas corpus made on behalf of one Bethuel W. Bupert [unreportedj, then held as a prisoner under an order of the secretary of war, that the writ was not allowable as of course, but that the court would decide upon the hearing of the application, and grant or withhold the writ in its discretion.

<p>Assumpsit on a bill of exchange, drawn by the defendant [Thomas Simmons] and his wife, upon one Francis Mott (trustee of the wife’s property), payable to J. M. Ehrisk or •order, endorsed to plaintiff [Jacob R. Yalk], for nonpayment after acceptance. Plea, general issue. At the trial the defence was principally, that the defendant had not due notice of non-payment by the acceptor. It appeared in evidence, that Mott was trustee of the property of the defendant’s wife, and as -such was accustomed to receive the rents of her estate, which were drawn for in this manner by husband and wife. The defendant had drawn out all the funds in the hands of Mott before the acceptance of this bill; and, as the evidence was, had intercepted the other funds before they came into Mott’s hands at any subsequent period. Mott, under these circumstances, refused to pay the acceptance; and there was no evidence that the non-payment was duly notified to the defendant</p> <p>cited French’s Ex’rs v. Bank of Columbia, 4 Cranch [8 U. S-] 141.</p> <p>argued, e contrá,, that the acceptor had no funds, and the drawer was not entitled to notice.</p>

[Claim hy José de Jesus Vallejo for 1,000 waras, known as the “Vallejo Mill Grant,” -and granted to him December 30, 1840, by Manuel Jimeno. Claim filed March 2, 1852, and rejected by the commission October 18, 1853.]

[Henry Vallette filed his bill to enforce a lien upon the Whitewater Valley Canal, and applied for a preliminary injunction to restrain the officers of the company from doing certain acts prejudicial to his lien, and also for a receiver.] 2

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

<p>1. The register of the land-office at New Orleans certifies that among the Spanish records under his custody, and forming part of the archives of his office, is a book bearing this title: No. 4, subdivided into volumes or sections, under the title of a “Register de lós Primeros Decretos de concession de tierra;” which book exhibits at volume 6, page 31, an entry in Spanish, of which the following is a translation: “11th June, 1793. To Captain Don Joseph Vallieré, in the district of Arkansas, a tract of land situated on the White river, extending from the rivers Norte Grande and Cíbolos to the source of the said White river, ten leagues in depth.”</p>

<p>An inventory was then taken by a disinterested party, and a bill of salé given Reynolds by Valliquette, and Reynolds then took up one thousand two hundred and seventy dollars of Valliquette’s outstanding indebtedness, and paid him one hundred dollars in cash for the stock, which was its full value.</p> <p>Counsel for Valliquette asked the court to render a verdict for the respondent.</p>

This was a writ of habeas corpus, returnable to this court, commanding the marshal to produce the body of Daniel W. Van Aer-nam.

Trover for 1700 bushels of com and four pipes of brandy. Plea, the general issue. The plaintiff [George O. Van Amringe] who resides in Philadelphia, in the course of the last spring consigned the goods in question, among others, to Messrs. Damon & Co. of Boston for sale. Messrs.

In equity. The defendants in this suit were Hiland R. Hulburd, comptroller of the currency of the United States, Francis E. Spinner, treasurer of the United States, and Lewis Kingsley, receiver of the National Bank of Unadilla.

<p>Case No. 16,827.</p> <p>Fedehal Courts—Equity Jurisdiction—National Banks—Bonds tor Redemption op Circulation — Assignment — Parties — Citizenship.</p> <p>1. V., a citizen of New York, claimed title, by assignment from a national bank, to the United States bonds deposited by it with the treasurer of the United States as security for the redemption of its circulating notes, under the general banking act of June 3, 1864 (13 Stat. 99). and the acts amendatory thereof. He filed a bill in this court, setting forth that the treasurer of the United States and the comptroller of the currency refused to recognize his rights to the bonds, or their proceeds, and that the said comptroller had appointed one IC., a citizen of New York, receiver of the bank, and intended to sell the bonds and pay the surplus of their proceeds, after redeeming the circulating notes of the bank, to the general creditors of the bank, or to IC., as such receiver, and that IC. claimed, as such receiver, an interest adverse to the plaintiff, in such bonds. The bill made the treasurer, and the comptroller, and IC.. defendants, and prayed for a decree establishing the plaintiff’s title, and requiring the treasurer and the comptroller to deliver to the plaintiff the surplus of the bonds, after redeeming the circulating notes of the bank, and decreeing the appointment of IC. as receiver to be null and void. K. interposed a general demurrer to the bill, for want of equity: Held, that the demurrer must be allowed.</p> <p>2. (Per Woodruff, J.): The plaintiff could not question the validity of the appointment of K. in respect to other property than the bonds.</p> <p>3. As the court couid not grant the relief asked in respect to the treasurer and the comptroller, it could not, on the facts in the bill, grant the relief asked as against IC.</p> <p>4. The proceeds of the bonds couid not. under the act, ever come into the possession of K., and, therefore, K. had no concern in the subject matter of the suit.</p> <p>5. The averment in the bill, that the complainant was informed and believed, that K., as receiver, claimed an interest adverse to the plaintiff, in the bonds, was not sufficient to sustain the bill, as against the demurrer.</p> <p>6. (Per Hall, J.): The residuary interest of the bank in the bonds was a part of the assets of the bank, to which IC.. as receiver, was, under the act. entitled, if the plaintiff had no title to such residuary interest, and therefore the bill showed a question of property between the plaintiff and IC., as receiver, in respect to such residuary interest.</p> <p>7. The demurrer should be overruled, if the court had jurisdiction of the suit, as between the plaintiff and IC.</p> <p>8. As the plaintiff and IC. were alleged to be citizens of the same state, this court had no jurisdiction of the suit.</p>

<p>Case Wo. 16,828.</p> <p>Bankruptcy—Validity of Composition—Voluntary Petition.</p> <p>1.Where a composition is made before adjudication, the mere fact that the debtor retains the possession of his assets is no ground for refusing to ratify it.</p> <p>[Cited in Ex parte Hamlin, Case No. 5,993; Re Wilson. Id. 17,781.]</p> <p>2. The omission of the court in a voluntary case to adjudicate fne debtor a bankrupt does not defeat a composition made before such adjudication.</p> <p>3. A provision that the debtor may retain his assets does not defeat a composition, for it is surplusage, and. on the application of a credit- or, a warrant may be issued, notwithstanding the terms of the provision.</p> <p>[Cited in Re Cavan. Case No. 2,528; Re Shaw, 9 Fed. 498.]</p> <p>4. Creditors who are fully secured neeu aot be reckoned in computing the proportion who must join in composition.</p> <p>The above opinion was affirmed by the Hon. H. H. Emmons, circuit judge, July 27th, 1876, after an oral argument on both sides. ■ [Case unreported.]</p>

<p>Case No. 16,829.</p> <p>Pleading at Law—Pleas.</p> <p>Where the declaration is special, stating facts and circumstances, a plea setting up the same matter is bad; they can be given in evidence under the general issue.</p>

<p>Case No. 16,830.</p> <p>Federal Courts—Following State Decisions— Municipal Corporations — Railroad in Street—Rights op Abutting Owners.</p> <p>1.Where a court of the United States is called on to construe the laws of a state, in a litigation between parties before it, it is its duty to follow the decisions of the courts of the sta teas to such construction.</p> <p>[Cited in Patapsco Guano Co. v. Morrison,. Case No. 10,792.]</p> <p>2. It is held by the court of appeals of New York, that the use of land in a public street for the purposes of an ordinary railroad, is a. new burden, which cannot be imposed without previous compensation to the owner of the fee of' such land.</p> <p>3. It having been held by the supreme court of New York, at general term, that the use of land in a city street for the purpose of an ordinary horse railroad is no new burden, but simply a new mode of enjoying the public easement. and, consequently, that no further compensation can be demanded by the owner of such land, and it having also been held by a judge of the same court, in an action brought to prevent the laying of a railroad track, that there existed lawful authority, under the statutes of New York, to lay such track, this court followed such decisions, on a motion for a provisional injunction to restrain the laying of such track.</p>

<p>[This was a bill in equity by Deborah Van Bokkelen find others against Daniel Cook and C. Derby.] On demurrer to the bill.</p>

<p>[This was an action of ejectment by Catherine Van Brunt against Austin Corbin and others. Heard on a motion to remand to the state court.]</p>

<p>Case No. 16,833.</p> <p>Bankruptcy Proceedings — Action against Debtor—Stat—Claims Provable.</p> <p>[1. A claim to have a judgment in favor of the claimant against the bankrupt set aside on account of fraud, whereby it was rendered for a smaller sum than was really due, and to recover what is still due under the contract on which the judgment was rendered, is a debt provable under the bankrupt law;]</p> <p>[2. If a final judgment is not recovered against the bankrupt before the filing of the petition in bankruptcy, the proceedings in the action will be stayed if the claim on which the action is based is provable, whether discharge-able or not.]</p> <p>[For a hearing on the question of the bankrupts’ discharge, see 2 Fed. 643.]</p>

<p>[This was an application by Samuel R. Van Campen for a writ of habeas corpus.]</p>

This was an action on the ■ case, tried before Judge Leavitt and a jury [against John Campbell, William Ellison, and David I. Woodrow], to recover damages for the infringement of letters patent “for an improvement in cooking stoves,” granted to plaintiff, February 6, 1849.

<p>Case No. 16,838.</p> <p>Collision Between Steameks—Engineer, not Licensed—G-uv Across a River—Boats Passing Each Other.</p> <p>1. Although at the time of a collision the engineer on the -injured boat is not licensed, this circumstance will not prevent a recovery of damages for the injury, where the evidence shows that the want of a licensed engineer did not contribute to the collision.</p> <p>2. A wire cable laid across the Wallamet river as a guy on which to run a ferry boat, is not an unlawful obstruction to navigation, unless it actually prevents or renders hazardous the navigation of the river by others.</p> <p>[Cited in The Swan, 19 Fed. 457; Ladd v. Foster, 31 Fed. 834: Albina Ferry Co. v. The Imperial, 38 Fed. 617.]</p> <p>3. When vessels are approaching each other in what the pilot rules call “the first situation,” the boat that is crossing the bow of the other is entitled to keep its course, and the other should port its helm and pass astern.</p>

[Appeals from the district court of the United States for the Southern district of New York. [These were two libels for collision. The first was a libel in rem by William H. Reynolds and others, owners of the Ella Warley, against the steamship North Star, of which William H. Vanderbilt and others, executors of Cornelius Vanderbilt, were claimants. The second was a libel in personam by the said claimants against the said Reynolds and others.]

<p>In bankruptcy. In the matter of Nathaniel S. W. Vanderhoef and John P. Beatty.</p>

This is a bill in equity, filed in this court by the assignee in bankruptcy of the firm of Vanderhoof Bros., against the City Bank of St. Paul. The object of the suit is to determine which of the parties has the better right to the stock of goods of the bankrupts, or the proceeds thereof. The assignee claims these goods, or their value, as assets of the bankrupts.

<p>Case No. 16,843.</p> <p>Towage—Extext of Tug’s Liability—Notice of-Restrictions.</p> <p>1. Considerations stated by Kane, District Judge, for holding a steam tug to the rigid accountability of a common carrier, in opposition to the case in 3 Hill, 9.</p> <p>[Cited in Nelson v. The Goliah, Case No. 10,-106; Brawley v. The Jim Watson, Id. 1,~ 817; The Thomas Kiley, Id. 13.925.]</p> <p>[Cited in Wright v. Gaff, 6 Ind. 422.]</p> <p>2. The captain of a steam tug is the pilot of the voyage, and is the best judge of the sufficiency of the canal boat taken in' tow, to resist the weather, and of the adequacy of her crew to do what may be required for her protection, and cannot limit his responsibility by a notice, given at the time of commencing the voyage,. that it must be at the risk of the canal boat.</p> <p>3.'The steam tug, notwithstanding such notice, is bound for the exercise of all that skill and care which the circumstances of the ease-demand.</p>

<p>Case No. 16,844.</p> <p>Extradition—Treaty with Bei.oium—Jurisdiction op Commissioner.</p> <p>1. The extradition treaty between the United States and Belgium (18 Stat. 804) declares, that its provisions shall not apply to any crime' committed prior to the date of the treaty, except murder and arson. The date of the signing of the treaty was March 19th, 1874. It was not to take effect until 20 days after the day of the date of the exchange of ratifications. They were exchanged April 30th. 1874. Hela, that a crime committed in Belgium on the 1st of May, 1874, was covered by the treaty.</p> <p>2. Where an extradition case, under a treaty, is brought before a IJnited States commissioner, it is his judicial duty to judge of the effect of the evidence, and no other judicial officer has any power to review his action thereon.</p> <p>[Cited in Re Wiegand, Case No. 17,618: Re Wahl, Id. 17,041; Re Fowler, 4 Fed. 317.]</p>

<p>Case No. 16,846.</p> <p>Seamen’s Wages—Condemnation of Ship as ' Peize— Restoration.</p> <p>1. Where a vessel is captured and condemned, wages are due the seamen up to the date-of condemnation.</p> <p>2. Where a vessel was condemned, by the French government, in 1808, and the representatives of the owner recovered a portion of their claim on that account, under the convention of 4th July, 1831, with France, the fund is liable for wages due the seamen, at the time of condemnation, ' without deduction for the expenses of recovery, or abatement in the same proportion as the original claim.</p>

<p>[This was a libel by Robert J. Vandewnter against Jacob R. Westervelt to recover damages caused by a collision.]</p>

<p>[Appeal from the district court of the United States for the Southern district of California.]</p> <p>A libel in rem was exhibited in the court below, claiming damages for the violation of an agreement, entered into at New York, on the 24th day of September, 1853, in the following words: ‘‘This agreement, made this twenty-fourth day of September, 1853, at the city of New York, between Edward Mills, as agent for the owners of steamship ‘Uncle Sam,’ and William H. Brown, as agent for the owners of steamship ‘America,’ wit-nesseth, that said Mills and Brown hereby agree with each, as agents for the owners of said ships before named, to run the two ships in connection for one voyage, on terms as follows. viz.: Of all moneys received from passengers, and for freight contracted through and between New York and San Francisco, both ways, the ‘Uncle Sam’ shall receive, seventy-five per cent, and the ‘America’ shall receive twenty-five per cent.; the money to be received here by said E. Mills, and the share of the ‘America’ to be paid over to William H. Brown, or his order, before the sailing of the ship; and the share due the ‘America’ of moneys received on the Pacific side, to be paid over to said Brown, or his order, immediately on the arrival of the passengers in New York, by E. Mills, who guarantees, as agent aforesaid, the true and honest returns of all funds received by his agents on the Pacific. It is understood that this trip is to be made by the ‘Uncle Sam’ leaving San Francisco on or about the 15th October, and the ‘America’ New York on or about the 20th October next. Each ship is to pay all the expenses of her running and outfits, and to be responsible for her own acts in every respect. Each ship is to retain all the moneys received for local freight or passengers, that is, for such freight and passengers as only pay to the ports the individual ship runs to, without any division with the other ship. No commissions are to lie charged anywhere on any receipts for the ‘America’ by said Mills in division; but the expense of advertising, and the amount paid out for runners at all points are to be borne by each ship in the same proportion as receipts are divided between them. In consideration of all the above, well and truly performed in good faith, Edward Mills, as agent for the steamship ‘Yankee Blade,’ hereby agrees that when the ‘America’ arrives at Panama, on her voyage hence to the Pacific Ocean, said ship ‘Yankee Blade’ shall leave New York at such time as to connect with the ‘America,’ conveying passengers and freight on the same terms as is hereinbefore agreed, say twenty-five per cent, to the ‘Yankee Blade,’ and seventy-five per cent, to the ‘America;’ provided only that said connection shall be made at a time that will not prevent the ‘Yankee Blade’ from making her connection with the ‘Uncle Sam’ at her regular time. E. Mills, W. H. Brown.”</p> <p>To the libel exceptions were taken in the court below, which being sustained, the libel was dismissed [case unreported], and an appeal taken to this court.</p>

<p>[This was a libel in personam by John N. Vandover against John Wilmot.]</p>

On motion by defendant [L. W. Tinker] for a new trial. Plaintiffs [Van . Dyke and Brownson] are trustees of the estate of James Neilson, a bankrupt, under section 43 of the bankrupt act. The action was in as-sumpsit for money had and received, with a bill of particulars specifying the plaintiffs’ demand to be for money paid by Neilson to Tinker, a creditor, by way of preference and in fraud of the bankrupt act.

<p>Case No. 16,850.</p> <p>CONSTRUCTION OF CONTRACTS—INSURRECTION—OFFICIAL Acts of Officers of Insurgent State —Guardian’s Bond—Validity—Investment of Ward’s Property in Confederate Bonds.</p> <p>1. The obligation of a contract is what the parties intended by it when they entered into it. To ascertain the meaning of a contract, the courts are authorized to consider the circumstances of the parties at the time they made it.</p> <p>TCited in The Orient, 1(3 Fed. 921; Waring v. Louisville & X. R. Co., 19 Fed. 866.]</p> <p>2. A probate judge in the state of Alabama, whose term of office had not expired at the date of the secession of the state, but who held over and served out his term after the state had joined the Confederate States, and the war of secession had commenced, became a judge of the new insurgent government of Alabama, without any new election or appointment.</p> <p>3.' A bond was given in Alabama by the guardian of a minor after the state had seceded and joined the Confederate States, and after the commencement of hostilities between the United States and the Confederate States, conditioned that the guardian should perform all the duties required of him by law. Held, that the “law” referred to in the bond was the law of the insurgent government of Alabama, and that a compliance with that law by the guardian discharged the sureties on the bond.</p> <p>4. When the insurgent government of the state of Alabama undertook, through its officers and laws, to appoint a guardian for the estate of an infant situate within its territory, its act was as valid and lawful as if done by a government de jure.</p> <p>5. A guardian who receives assets of his ward incurs an obligation even without bond, to improve the estate and account for and pay it over to his ward, with its increase and profits.</p> <p>6. He can be relieved of this obligation in one of two ways only, either by its full performance, or by discharge therefrom by a court of competent jurisdiction, authorized to act in the premises.</p> <p>7. The decrees of the courts of a revolutionary and insurgent government, enforcing laws passed in support of rebellion against the lawful government, and intended to defeat the just rights of its citizens, are void.</p> <p>8. The legislature of the insurgent state of Alabama, having passed December 5. 1861, an act authorizing guardians to invest the estates of their wards in Confederate bonds, and A.. the guardian of B.. having so invested the estate of his ward, and having, on a settlement with the probate court, made during the war. received a credit for the Confederate bonds, and at the time of such settlement, his ward being within the Federal lines: Held, that the settlement was not binding upon the ward, and the gnardian was not entitled to credit for the Confederate bonds.</p> <p>9. A decree of the court of chancery of the insurgent government of Alabama, made during the war, affecting the rights of a party who was at the time of the decree in the state of New York, is void.</p>

<p>Case No. 16,861.</p> <p>Patents—Provisional Injunction—Woodworth Planish Machine—Equity Infringement Suits—Feigned Issues.</p> <p>1. On a motion for a provisional injunction under Woodworth’s patent for an “improvement in machines for planing, tonguing, and grooving and dressing boards, &c.,” the originality of Woodworth’s invention and the validity of the patent will be considered as settled.</p> <p>2. The Macgregor machine, with a planing wheel having its knives not on a cylinder, but on the face of an obtuse or flattened cone, and in a plane inclined to the axis of the wheel, is an infringement of the Woodworth patent.</p> <p>3. The case of Woodworth v. Wilson, 4 How. [45 U. S.] 712, cited and examined, and held to decide that the Bicknell machine, which was similar to the Macgregor machine, was an infringement of Woodworth’s.</p> <p>[Cited in Gibson v. Van Dresar, Case No. 5,-402.]</p> <p>4. When.a patentee will not be charged with acquiescing in the use of his invention.</p> <p>[Cited.in Green v. French, Case No. 5,757; M’Williams Manuf’g Co. v. Blundell, 11 Fed. 422.]</p> <p>5. The case of Woodworth v. Wilson, 4 How. [45 U. S.] 712. decided the questions of the originality of Woodworth’s invention, and of the validity of his patent of 1828.</p> <p>6. The case of Wilson v. Rousseau, 4 How. [45 U. S.] 646, decided the sufficiency of the amended specification and the validity of the re-issued patent of 1845, and that the patents of 1828 and 1845 were for the same invention.</p> <p>7. On the question of the infringement of a patent, raised in a suit in equity, a feigned issue will not be awarded, unless the court have doubts as to the identity of the two machines.</p> <p>8. Rules as to awarding a feigned issue.</p> <p>[For a subsequent proceeding, see Case No. 16,852.]</p> <p>[For other cases involving this patent, see note to Gibson v. Yan Dressar, Case No. 5,402.]</p> <p>NOTE A.5</p> <p>McGregor Planing Machine. Patented August 28, 1833.</p> <p>Improvement in machine for jointing, toughing, grooving, and planing plank for flooring and siding for ceiling.</p> <p>This machine contains jointing saws, also saws for cutting the tongue upon an edge of the boards fed to the machine.</p> <p>The plank to be planed is carried forward between the saws by a chain.</p> <p>There are gauges in the machine to guide the plank straight. The. gauge which is behind the saw is made sharp at the forward end. and shaves off the edging that is above the tongue.</p> <p>The gauges on the other side are adjustable so as to suit any width of plank. In front of the jointing-saw is a weight to keep the plank up to the stationary gauge.</p> <p>5. The jointing is done by two circular saws: the one on the side farthest from the plane shaft is so placed as to cut the edge off in a line with the gauge that lies immediately after it; the one on the other side is placed in a movable carriage, operated by a graduating screw, so that it can be set to any width desired.</p> <p>6. The tongue of the board is formed by four circular saws, the two placed on the perpendicular shaft have a chuck between them as thick as the intended tongue. This shaft is so placed that the two saws cut horizontally into the edge of the plank as far as the width of the intended tongue. Above and below the plank is a shaft placed horizontally with one saw on each—the one above cuts down to the cut made by the upper horizontal saw. the one below cuts up to the lower cut made by the lower horizontal shaft. These two last-mentioned shafts are so placed that the saws cut into the face of the plank as far from the outer edge as the tongue is designed to project.</p> <p>7. The groove is formed by three circular saws placed on perpendicular shafts, twining horizontally in the same carriage or frame, which carriage or frame is so constructed that it may 'be moved back or forward by a regulating screw to suit any width of plank to be dressed. On one of these shafts are put two circular saws, having a chuck between them of such thickness that the saws from outside to outside will be as far apart as the width of the intended groove; the other shaft carries one saw made thicker than the two just mentioned, and so placed that it clears out the timber between the cuts made by the before-mentioned saws.</p> <p>8. The revolving circular plane is made in the following manner: The shaft is of cast-iron, with a cast-steel step fitted in its lower end, and a cast-steel bearing, about six inches in length, fitted in its upper end to admit the shaft to rise and fall without disturbing the upper box. Eight cast-iron arms project from this shaft: at the extremities of these is a circular cast-iron rim. projecting three-quarters of an inch below the arms; even with the under surface of which rim is a flange, projecting horizontally one and a half inch; the under side of which flange and rim is twined true, forming a smooth surface to pass freely over the plañk to be planed. In. this flange are sixteen slots, forming throats to admit the inner edges of the plane-irons, at the back part of which slots are projections extending from the top of the rim as far as the outer edge of the flange to which they are cast solid, having the same inclination as the irons. These projections form the back part of the slots as well as the bed-pieces on which the plane-irons rest, and are fastened by screws, bolts, and nuts. Each plane-iron is four inches long and two inches wide: rounded on the outer corner, the front edge passing through the throat being nearly square; this edge, the outer corner and up the outer edge as far as the plank should ever exceed the desired thickness, is made sharp. The foot-shaft of this rotary plane rests in a step, the latter being so made that the rotary plane can be adjusted vertically.</p> <p>9. The feeding is performed by an endless chain passing over two wheels—one at the end of the frame in which the revolving plane is placed, and the other at the first end of the way. The first-mentioned wheel has cogs on its periphery, working in the links of the chain. On this chain are fastened hooks, which lay hold of the end of the plank on the chain, carrying it forward to the saws and plane.</p> <p>10. Rollers for holding down the planks.— There are three of these rollers: one placed in front of the jointing and tonguing saws; one between these and the plane: and the other behind the plane—all held down upon the planks by weights and levers to confine the planks on the way.</p> <p>11. Operation. — The machine being put in motion by steam or water-power, the plank to be dressed is placed on the way in front of the jointing-saws, and carried forward by the motion of the endless chain to these saws, which joint its edge: it is then carried forward to the tonguing and grooving saws, passing under the rollers between the gauges, when it is tongued and grooved in the manner hereinbefore described: the endless chain then carries it forward to the circular revolving-plane, when it Í3 planed smooth by the operation of the plane in the manner also hereinbefore described. The plank is then conducted out of the machine by the continued motion of the endless chain. The jointing may be performed in a separate machine: also the tonguing and grooving. And the planing likewise may be done in a machine distinct from the others, but all operated on the same principle as herein described. Rollers may also be fixed before and after the jointing-saws, to keep the plank firmly down upon the way.</p> <p>Claim.—1. The planing of timber of any size or dimension by the principle of the twining tool and plane-iron united, as before described, or by the twining tool separate from the plane-iron, or so near as to retain the same principle.</p> <p>2. The application of the sliding-box for the steps of the revolving plane-shaft. to turn in. and by which the revolving plane is raised and lowered, to give the desired thickness to the plank, made and applied as before' described.</p> <p>3. The passing the shaft through beyond the face of the revolving circular plane,' so as to have a step for the plane to rest on. 4. The application of the gauge under the plane to keep the stuff down while the plane is operating. This may be done by a roller, but I prefer the gauge. 5. The application of the common circular saw to joint, tongue, and groove plank or siding in the manner before described. 6. The mode of forming a tongue on a board, plank or sliding by cutting in the edge of the plank horizontally on each side of the tongue, and then vertically to form the shoulders by circular saws, as hereinbefore described. 7. The mode of forming the groove by making two horizontal cuts in the edge of the plank with two circular saws as far apart and deep as the width and depth of the intended groove, qnd clearing out the timber between the cuts by a circular saw. revolving horizontally in the manner herein described.</p> <p>NOTE B.6</p> <p>McGregor Planing Machine. Patented January 9, 1838.</p> <p>Improvements in the machine for planing, jointing, tonguing, and grooving of boards, for which letters patent of the United States were granted unto me under date of the 28th day of August. 1833. The machine does not vary in its general construction and mode of operation from that above alluded to—that patented August 28, 1833; and it will not, therefore, be necessary to describe it' minutely in the present specification, but only to particularize those things which constitute the improvements thereon.</p> <p>Pig. 1, in the accompanying drawing (28 Ped. Cas. 994), gives a front, and Fig. 2 a top view of the improved machine. In my original machine the board or plank was jointed on both edges by two circular saws, set upon shafts nearly opposite to each other, this jointing having been the first operation performed by the machine, as the board entered it to be jointed, tongued, and grooved.'</p> <p>In the present improved machine, after placing the plank upon. the bed of the machine, and conveying it forward by means of the endless chain A A, as formerly, it first comes in contact with the jointing-saw B. which joints one edge of it by rubbing a strip therefrom, which strip is carried off as heretofore. As it advances, the plank next comes into contact with the tonguing-saws C C. which operate upon the jointed edge; whilst the second jointing-saw D. which stands opposite to the tonguing saws C C, joints the opposite edges. This arrangement removes a difficulty experienced in the old machine, in which the plank was jointed at the same time on both edges by two saws, as before noticed, and was subsequently made to encounter the tonguing and grooving-saws acting opposite to each other. It, however, was found impossible to prevent those slight deviations in the apparatus, which would affect the regularity of the tongue and groove, and consequently the matching of the plank. The first improvement which I claim consists in the foregoing new arrangement of the jointing and tonguing saws, namely, in the first jointing of one edge by a circular saw ujjon the first saw-shaft, and the subsequent jointing whilst the tonguing of the opposite edge first jointed is at the same time effected at a point opposite, or nearly opposite, to the second jointing-saw, as herein described. The plank, as it proceeds forward, is borne up against the gauge-strip E, on the front of the bed, by the movable gauges E E. as formerly; but to carry off the strip cut by the second jointing:-saw, is added the guide-strip or gauge G, which is armed with ¿ thin elastic plate of iron at that end of it which is toward the kerf- of the saw, into which kerf it enters, and effectually removes the' strip out of the way, and prevents its interfering with the grooving-saws H, as it sometimes did under the old arrangement.</p> <p>The end of the elastic strip of iron is confined onto the frame of this second jointing-saw, so that when the saw is shifted the strip moves with it, and is thus always opposite to the kerf. The second claim to improvement is to the employment of the gauge-strip E in the manner and for the purpose set forth. The grooving-saws I are constructed and operate as in the original machine, and are in like manner supported upon a sliding frame J J, by which they may be adjusted precisely to the width of the stuff to be grooved. The stuff, after being tongued and grooved, passes on between the stationary gauge-strip E and the opposite cheek or strip K IÍ, which makes part of the sliding-frame L L. The strip E having a groove on it which receives the tongue of the plank, and the strip K. a tongue which, in like manner, enters the groove of the plank as in the original machine, the plank is thus firmly held between these tongued and grooved strips, whilst it is acted upon by the revolving planes. As the sliding-frame which carries the grooving-saws I, and that carrying the tongued-strip K, require to be brought up simultaneously and equally against the plank which is to be grooved and planed, I have devised a new and improved mode of effecting this object. M M is a shaft which passes under the sliding-frames J J and L L, and has on it four pinions equal m size, which take into four racks—one oh the under side of each of the side pieces of the two sliding-frames, and by turning this shaft by means of the wrench o or otherwise, it is manifest that the two sliding-frames will be simultaneously adjusted, as may be desired. This mode of adjustment, as arranged and applied to the planing machine, constitutes the third cláim to improvement. In my machine, as originally patented, the cutters by which the planing was effected, consisted of a number of irons—usually sixteen—affixed in slots on the periphery of the revolving horizontal planing wheel, the edges of these cutters being carried so as to operate like gouges in turning, as described in the specification thereof.</p> <p>The improvement in this part consists in the employment of a smaller number of irons— usually three—of greater width, so as to extend from the periphery of the wheel, or from the ends of arms which may be substituted for a wheel, to the shaft which carries it. The forward arm. or part of the wheel, forming the throat to the iroD, not being extended as far out as the part forming the bed-piece to the iron, allows the outer end of the iron to spall off all that is above the desired thickness to be planed off. These wide irons, which are held and adjusted by suitable screws, are shown at N N N, attached to three arms. These irons are not placed in the direction of radii to the wheel, but stand in relation thereto in the manner of skew-irons in rabbet and other planes. These are not curved at their extremities, but have straight-cutting edges: and their distinguishing characteristic is their being so set that they shall cut under the surface of the plank without coming into contact with the fibrous surface left by the saw and the gritty matter always entangled therein. As the shaft of the planing wheel is not vertical, hut has an inclination toward the plank, the edges of the irons or cutters will first enter that edge of the plank which is toward the shaft, cutting toward the center, and obviating all danger of spalling, and the iron will not begin cutting at the off edge until it is about returning toward the center, and. of course, it can. not produce spalling there. I claim as my fourth improvement the particular mode above described, of constructing and arranging the plane-irons, or cutters, so that they shall cut under the surface of the stuff to be planed, they being in all respects made and arranged substantially in the manner set forth.</p>

This was a 'suit in equity for an account and an injunction for the infringement of letters patent. After the cause was at issue, the plaintiff [William Yan Hook] proceeded to take proofs before one of the standing examiners of the court, without his having been specially appointed as examiner in the cause, or as commissioner therein; and the testimony was taken before him upon oral examination and not by written interrogatories.

<p>Case No. 16,853.</p> <p>Patents—Planing, Tongiieing, and Grooving Machine.</p> <p>[The Woodworth patent of December 27, 1828, as extended on December 27, 1842, held valid and infringed.]</p> <p>[Cited in Washburn v. Gould, Case No. 17,-214; Brooks v. Bieknell. Id. 1,944; Brooks v. Jenkins, Id. 1,953; Wilson v. Rousseau, Id. 17,832.]</p>

<p>[This was an action by William Van Hook against Thomas W. Wood for infringement of a patent.]</p>

<p>Case No. 16,855.</p> <p>Patents—Estoppel bt Compromise Agreement —Preliminary Injunction—Conflicting Verdicts in Other Circuits—Assignments—Renewed Patents—Planing Mills.</p> <p>[1. An arrangement made by two patentees, by way of compromise to avoid litigation, for the mutual use of their respective patents, should not be construed as an acknowledgment by either of the validity of the other’s patent, so as to estop him or his assigns or licensees from denying its validity.]</p> <p>[2. The federal courts .regard a verdict in another circuit, when the validity of the patent was in issue, as prima facie evidence sufficient, if in favor of the patentee, t.0 entitle him to an injunction, and, if against him, to defeat his application.]</p> <p>[3. Where there were three verdicts in other circuits, two against and one in favor of the patentee, held, that the court would grant an injunction on the strength of the latter, it appearing that a new trial was denied after full argument and mature deliberation, whereas in the opposing cases there had yet been no hearing on motion for a new trial, and that there was good ground to suppose that the jurors misapprehended the court’s instructions.]</p> <p>[4. The extent to which assignees of a patent may enjoy a renewed patent is to be determined solely by the stipulations of the assignment.]</p> <p>[5. Whether complainant will be required, as a condition of obtaining a preliminary injunction in a patent ease, to give a bond to indemnify defendant in case the patent is not sustained, is a matter of practice, which each court may regulate at its discretion, conforming to the state procedure, or adopting an independent method for itself.]</p> <p>[6. The Woodworth patent of November 27, 1828. renewed November 16. 1842, for a planing mill, construed on motion for a preliminary injunction, and held valid and infringed.]</p> <p>[See Case No. 16,854.]</p>

<p>Case No. 16,858.</p> <p>Jurisdiction in Matter of Extradition—Treatt wth Belgium—Complaint—Warrant.</p> <p>1. The sixth article of the treaty of May 1st, 1874 [18 Stat. 804], between the United States and Belgium, expressly provides for requisition on the part of the government applying, and consent of the government applied to. It is not necessary that the warrant on such requisition be issued by the president. It is sufficient if it issue from the state department, under its official seal. In foreign relations, and executive acts imposed by treaty stipulations, the president acts through that department.</p> <p>[Cited in Castro v. De Uriarte, 16 Fed. 97.]</p> <p>2. Where the complaint charges the crime of forgery as having been committed on a certain' day in the jurisdiction of the foreign government, in that one "willfully, etc., uttered and put in circulation forged or counterfeit papers, or obligations, or other titles, or instruments of credits,” without specifying the kind of obligations forged, or the character of the papers, or nature of titles, etc., it is defective at common law, does not fairly inform accused of the charge, and does not show probable cause for arrest.</p> <p>The foregoing decision of Nelson, J., was given in April, 1876. An appeal was taken from the order of discharge, and that order was affirmed by the circuit court, at the June term, 1876. The petitioner, after the order for his discharge was made, was again arrested, and sued out another writ of habeas corpus. See [Case No. 16,859].</p>

<p>Case No. 16,859.</p> <p>Extradition—Treaty with Belgium—Warrant of Arrest—Mandate op the Secretary of State — Sufficiency of Complaint.</p> <p>1. Under the extradition treaty of the United States with Belgium,—treaties 1873-74, p. 120 [18 Stat. 804],—it is no ground of discharge of the alleged fugitive, on habeas corpus, that the warrant of arrest was issued by the proper judicial officer instead of by the president.</p> <p>2. It need not appear by distinct recital in the mandate of the secretary of state to the judicial officers of the government, that a warrant for the arrest of the alleged fugitive, for the crime imputed to him, ever issued in Belgium. The judicial department will presume from themandate of the secretary of state that this was done.</p> <p>3. A pomplaint, under oath, made by the consul-general of Belgium, before a proper commissioner in the Southern district of New York, upon the strength of telegrams and depositions taken in Belgium, held sufficient to justify the court in remanding the prisoner for examination by the commissioner before whom the complaint was made and who issued the warrant of arrest.</p> <p>■ NOTE. The order of Nelson, J., in this case when before him. was affirmed on appeal; and a petition was presented for another writ of ha-beas corpus, to the circuit court, at the June term, 1876, in the proceeding upon which the foregoing opinion of the* circuit judge was pronounced. Subsequently, the petitioner filed in the circuit comt a plea to the effect that, in fact, no criminal proceedings whatever had ever been instituted in Belgium against him. and that no warrant ever issued, and no depositions had ever been taken in that country. This plea was traversed by the officer having the petitioner in custody, and on a hearing subsequently had before Nelson, J., the warrant of arrest in Belgium, and certain depositions there taken, were produced, whereupon the petitioner was remanded to the custody of the deputy marshal, to he taken for examination before the commissioner who issued the warrant of arrest.</p> <p>In the Albany Law Journal (volume 18, p. 451. July 20, 1878, the reader will find a carefully prepared and valuable article, from the pen of Judge Spear, on the subject of “Extradition from the United States.” The. learned writer states the leading statutable provisions, and collects the principal decisions in this country respecting the executive and also the auxiliary judicial functions involved in the delivery, by the United States, of a fugitive criminal to a foreign government, under treaty stipulations. He concludes his paper in these words: “The law, by thus distributing the legal functions to be performed between the executive and judicial departments of the government, secures to the party accused the highest certainty that he will be surrendered to a foreign government only when all the necessary conditions are present. The judiciary cannot surrender him; and the president cannot do it until the judiciary decides that the case is a proper one for delivery, and even then the president may revise and reject that decision. This furnishes ample protection against any abuse of the extradition power, especially when we add that the writ of habeas corpus, as a means of testing the legality of the proceedings, is always available to the party, if sought before his actual surrender and removal from the country.”</p>

<p>Case No. 16,860.</p> <p>Bankruptcy—Invalid Preference—Conveyance to Ivife—Adjudication by State Court—Coxclusiveness.</p> <p>[1. Several creditors may, with the aid of their debtor, conspire to get an advantage over j other creditors by a voluntary preference, provided the means used are not unlawful, and the preferences are made more than two months before the filing of a petition in bankruptcy.]</p> <p>[2. A sale by a debtor will not be avoided because the purchaser was aware of the intention of the seller to prefer certain of his creditors by the use of the proceeds of the sale.]</p> <p>[3. The fact that a wife allows her husband to have and use her money in his own business indefinitely does not affect a claim by her, as against other creditors, after he becomes bankrupt.]</p> <p>[4*. The eonclusiveness of an adjudication by a state court as to the distribution of a certain fund under an assignment for creditors is not affected by the fact that this involves a decision as to the legal rights of the parties as affected by the United States bankruptcy law.]</p>

In bankruptcy. The petition in tms case charged the respondent [Ira L. Thurber] who was a retail merchant, with having on the 27th day of June last, in contemplation of bankruptcy, confessed a judgment to Isaiah Thurber for $1,236 56, besides cost, for the purpose of giving him a preference or priority over the other creditors of the respondent.

<p>Case No. 16,862.</p> <p>Shipping — Illness op Master — Liability of Owner for Medical Attendance.</p> <p>The owner of a sea-going vessel is liable for the expenses of medical attendance rendered the master on board the vessel in a sickness incurred in her service. The master having been attacked with cholera in port, before the vessel was unladen, and having died on board, held, that the physician could recover from the owner a reasonable compensation for his attendance on the master during that illness.</p>

[This was a bill in equity by Barton P. Van Marter against J. Horton Miller and others to restrain the infringements of certain letters patent.]

The constitution of the United States declares (article 4, § 3) that “no .person held to service or labour in one state under the laws thereof, escaping into another, shall, in consequence of any law or regulation thereof, be discharged from such labour or service, but shall be delivered up on claim of the party to whom such service or labour may be due”; and a law of congress (February 12th, 1793, § 3 [1 Stat. 302]) passed to give effect to the provision of the…

[This was an action by Garret Van- Metre against Robert Mitchell to recover the statutory penalty for harboring and concealing a fugitive slave belonging to plaintiff. There was a verdict for plaintiff (see Case No. 16.-865). and defendant moves in arrest of judgment.]

The plaintiff [Mary Ann Tan Xess] claimed that she was the widow of the late John P. Van Xess and entitled to preference in the administration of his estate, and that the letters of administration granted to Cornelius P. Van Xess. the brother of the deceased, be revoked, and the administration of the estate be granted to her. That she was married to the said John P. Van Xess August 6th, 1845, by an alderman in Philadelphia, Penn. The administrator.

This was a motion for a writ of certiorari, to be issued to a commissioner appointed by this court, commanding him to return to this court the record or minutes of proceedings before him in this case, which was an application to the commissioner by the master of an apprentice residing in the state of New Jersey, for a warrant for the arrest of the apprentice as a fugitive from service or labor, with a view to his extradition.

<p>Case No. 16,870a.</p> <p>Maritime Liens—State Statutes — Materials anu Labor Used in Construction.</p> <p>[To create a lion, under the New York statutes, for materials or labor used in the construction of a vessel, it must appear that, at the time the materials were furnished or labor performed, it was not on the personal or individual credit of another, but that in fact the credit was given to the ship. Appending that credit to the owner, master, agent, or consignee is giving it to the ship.].</p> <p>[Cited in Udell v. The Ohio, Cases Nos. 14,-321a and 14,322.]</p>

The plaintiff is an inhabitant of Batavia in the island of Java, and the bill is brought to recover against [Oliver Kane and another] the executors of [John Innes] Clarke the amount of a bill of exchange drawn in behalf of the owners of the ship Patterson, by . Benjamin Monroe, their agent at Batavia, on a mercantile house in Amsterdam for 21,-488 guilders.

This was a bill in equity, the object of which was, to obtain satisfaction out of the separate estate of John Innes Clarke, Esq., deceased, of a debt alleged to be due from said Clarke, and Messrs. James Monroe, Samuel Snow, and Benjamin Monroe, who survived the said Clarke, but had become insolvents under the Rhode island act. The bill charged, that on the 28th of February, 1805, Mr. Clarke, and the said Messrs. Monroe.

Debt [by Stephen Van Rensseilaer, executor of Charles A. Heckseher, against Benj. Kelly, Jr., executor of Benjamin Kelly] on a judgment, submitted to the court without a jury. Plea, release of the judgment. Replication. release obtained by fraud. Issue taken.

<p>Case No. 16,874.</p> <p>BANKRUPTCY—DISCHARGE OP BANKRUPT—VALUE op Estate—Evidence.</p> <p>Bankrupts made application for their discharge and took the testimony of the assignee, who swore that at the time he took possession of the estate it was worth fourteen thousand dollars, which was more than fifty per cent, of the debts of said bankrupts, as set forth in their schedule. The evidence further shows that the assignee offered the real estate at public sale, but was unable to obtain a bid upon it for the reason that it was heavily encumbered, and was at that time advertised for sale under a mortgage foreclosure suit. The assignee collected some twelve thousand two- hundred dollars. Unsecured claims to the amount of fourteen thousand dollars have been proved, of which six thousand five hundred dollars were contracted prior to January 1, 1869, and seven thousand five hundred dollars subsequent to that date. On the part of the bankrupts it was claimed that a discharge should be granted from all their debts, for the reason that they had shown that at the time their estate passed into the hands of the assignee it was worth fifty per cent, cf the claims proved. Held, that the word “assets” must be construed to mean money received by the assignee, and that the bankrupts are only entitled to receive a discharge from tbeir debts contracted prior to January 1, 1869.</p> <p>[Cited in Ke Taggert. Case No. 13,725; Ee Waggoner, 5 Fed. 917.]</p>

<p>Case No. 16,875.</p> <p>Admibalty Jurisdiction—Federal Coubts—Con-TKACTS OF AFFBE1GHTMENT—R.IVEB Tbanspoktatiox.</p> <p>1. A contract of affreightment for the carriage of merchandise from one port or place to another, within the ebb and flow of tide, on a navigable river, is subject to admiralty and maritime jurisdiction of the courts of the United States: and it is immaterial whether the vessel or boat, by means of which the service is to be performed, is propelled by its own motive power, or is towed by another vessel.</p> <p>2. Thus a suit in the admiralty may be maintained for the nonperformance of a contract for the transportation of flour from the city of Albany to- the city of New York, on the Hudson river, in a boat designed for the navigation of the Erie Canal, and usually employed in that business.</p>

On the 21st day'of September, 1S71, Donald Kennedy, the agent of the plaintiffs, shipped from Boston to Chicago, one hundred and sixty cases of drugs called “Medical Discovery.” They were shipped by the Northern Transportation Company, defendant, and arrived in Chicago, the port of destination, where the plaintiffs resided and did business at that time, on the afternoon of Saturday, the 7th of October. 1871, by the steamer Milwaukee, belonging to the Northern Transportation…

<p>Case No. 16,876a.</p> <p>Attachment — Issuance op Writ — Rules op Cocrt—Arrests on Admiralty Process.</p> <p>[1. Under rule 28 of the district court, providing- that “process cannot issue against goods, choses in action, or moneys in the hands of third persons, except by order of the judge,” a writ of foreign attachment in aid of a libel in per-sonam in admiralty to recover less than $500, issued without direct sanction of the court, is irregular, and must be discharged.]</p> <p>[2. Rule 28 is not rescinded by Sup. Ct. Rule 7, prohibiting employment of the writ in aid of demands exceeding $500 without authority of the judge, as by Sup. Ct. Rule 46 no repeal by implication is to arise where there is no conflict between the regulation of the subordinate and superior courts.]</p> <p>[3. Since the promulgation of the supreme court rules of 1850, abolishing arrests on admiralty process where by the state laws imprisonment for debt has been abolished, a warrant of arrest sued out without the special order of the judge is- nugatory and void.]</p>

This was a libel on a bill of lading. It appeared that, on the 4th March, 1840, the libel-lant [Elijah Van Syckel] shipped sundry casks of brandy and other liquors on board the Thomas Ewing, John W. Ireland, master, consigned to Ogden & Brother at Mobile, eighty-eight casks being loaded on deck; that on the 4th April, 1840, the schooner arrived at tbe mouth of Mobile Bay; that the weather was then threatening, and the captain being unable to obtain a pilot, determined to…

The- libellants were owners of the Mary Jane, a small oyster boat of twenty-seven tons, which was fastened to a wharf on the Delaware. Held: in a cause of damage, in respect of sucli collision, instituted by the owner of the brig, that there was a want of proper precaution in the position which the Volcano originally took up, and in not letting out more cable and a second anchor.

<p>During the proceedings in this case, the register, on the 4th of September, 1868, issued an order requiring the wife of the bankrupt to attend before him, and be examined in relation to the bankruptcy. She did not obey. The register thereupon certified to the court the questions, whether the order was properly granted, and whether, the order having been served upon the bankrupt, but not upon his wife, the bankrupt could obtain a discharge, in the absence of proof that he was unable to procure his wife’s attendance.</p>

<p>Case No. 16,882.</p> <p>Maritime Lien's—State Statutes—Harbor Tug —Departure prom State.</p> <p>1. Where a vessel is contemplated to be used about the harbor oí New York as a tugboat, the lien of a material man for supplies cannot be defeated, uiider the statute of New York,—2 Rev. St. (5th Ed.) p. —.—by the owners departing with her while lying at the dock, out of the state, secretly or without the knowledge of the material man. and not in the way of her business. The material man had the right to suppose the vessel would not so depart.</p> <p>2. Where the owner of the rem. who has purchased the supplies himself, sets up the departure to avoid the lien, the court rigidly scrutinizes the circumstances of the alleged departure, and is not inclined to uphold such an inequitable defence.</p>

<p>Case No. 16,883.</p> <p>Opening Default—Attachment.</p> <p>Process being issued, with an attachment clause, the marshal attached property of the respondents. but afterwards discharged it from custody, without any order of court, and served the process upon them personally. On the return of the process, a default was taken against them, which they moved to open. The libel-lant insisted that, as a condition of opening the default, they should be required to give security, as on a discharge of property attached: Held, that, under the circumstances of the case, the condition was a reasonable one, and that the default would be opened, without costs, on the respondents executing such a stipulation.</p>

<p>The plaintiff [William T. Van Zandt] brought an action in the superior court of the city of New York, to recover the sum of 81.750, part of the proceeds of merchandise imported from a foreign country into the port of New York, and condemned as forfeited to the United States for a breach of the revenue laws, and which sum the plaintiff claimed as due to him because he was the informer on whose information the goods were seized and condemned. The defendant [Hugh Maxwell], being at the time collector of the port, brought a certiorari, pursuant to the provisions of the third section of the act of congress of March 2d. 1833 i4 Stat. 633), upon which the cause and proceedings were removed into this court. The plaintiff now moved for a remittitur of the cause to the state court, for want of jurisdiction in this court over the subject-matter, insisting that the action was against the defendant in his private capacity, for withholding money due to the plaintiff, and was not founded on any act of the defendant in his official character as collector of the port.</p>

<p>Case No. 16,885.</p> <p>FEDERAL JURISDICTION—OBJECTION'S—HOW PLEADED—Diverse Citizenship—Promissory Note—Dishonor.</p> <p>1. When want of jurisdiction appears upon the face of the pleadings, the objection should be taken by demurrer; when it does not so appear, by plea.</p> <p>2. The United States circuit court has jurisdiction of a suit brought against a citizen of the state m which the court is held, by a citizen of another state, upon a note payable to it or bearer, notwithstanding the note may have been indorsed to the plaintiff by payee, and although the declaration contains no averment that the payee could have sued.</p> <p>3. After dishonor, a promissor3' note does not lose its charactei as such, nor cease to be a negotiable instrument. The only effect of the dishonor is to let in the defenses of the maker as against the paj-ee</p>

<p>Case No. 16,886.</p> <p>Promissory Notes — Indorsement — Consideration—Attorney for Collection—Release op Indorser — Giving Time.</p> <p>1.W and B executed their note for eight hundred and ninety-nine and fifty-three hundredths dollars to the order of B, and negotiable at a chartered bank m Indiana. B indorsed it for the accommodation of the makers in blank, and they transferred it to Y, in payment of a preexisting debt due from them to him. Held, that in a suit by V against B on his indorsement, it was no defense to the suit that the indorsement was made without consideration, although V knew it when he received the note.</p> <p>2. The pre-existing debt due to the holder of the note from the makers, was a good consideration for its transfer.</p> <p>3. An attorney who receives a note for collection, can not, without special instructions, make any agreement which will bind his principal, by which the indorser could be released from his liability.</p> <p>[Cited in brief in Moulton v. Bowker, 115 Mass. 36; Rounsaville v. Hazeu, 33 Kan. 74, 5 Pac. 422.]</p> <p>4. Forbearance to sue the makers of a negotiable note will not release the indorser, and unless an agreement for delay is such as will, for a time, tie up the creditor’s right of action, it is nugatory.</p> <p>5. The indulgence which will release an in-dorser of negotiable paper, must not only be given upon a good consideration, but it must be for some limited and definite time, within which the creditor’s right of action is suspended.</p> <p>■ 6. The payment of a part of the debt, and accepting claims to be applied when collected in further payment, under a verbal agreement not to sue, constitute no legal consideration for the promise of forbearance.</p>

<p>Case No. 16,887.</p> <p>Pleading at Law—Action against Partnehship —Evidence.</p> <p>1. If two pleas are filed substantially the same, the court, on motion, will order the last one to be stricken out, as improperly incumbering the record.</p> <p>[Cited in Wilkinson v. Pomeroy, Case No. 17,614.]</p> <p>2. The names of the firm must be proved, but where some evidence has been given on the point, the court will leave the evidence with the jury.</p>

<p>Case No. 16,890.</p> <p>Promissory Notes—Discharge op Surety—Payment by Surety—Equitable Relief.</p> <p>1. If the holder of a bill, for a valuable consideration, give time to the maker of the note, he thereby discharges the suretv.</p> <p>[See Bank of U. S. v. Lee, Case No. 921; Same v. Hatch. Id. 918.]</p> <p>2. The surety has a right to pay the note and to be substituted to all the rights ot' the holder, and any act of his which suspends this recourse by the surety, releases him.</p> <p>3. By the laws of Indiana the surety, by giving notice to the holder, can compel him to proceed against the principal.</p> <p>4. In some eases, independently of any statutory provision, the surety, by a bill in chancery, may compel the holder of the note to use active diligence.</p>

<p>Case No. 16,891.</p> <p>Judgment—Assignment as Security—Principal, and Agent—Execution Sales.</p> <p>1. A judgment being assigned of five, thousand dollars to secure debts of a much smaller amount, the court will direct the debts to tie paid out of the first proceeds of the land sold-under the judgment.</p> <p>2. This appears to be necessary to pay the debts, it not appearing that there is any property out of which the whole amount of the judgment can be made.</p> <p>3. An agent who has full.notice, is sufficient to charge the principal with notice.</p> <p>[Cited in G-oodenough v. Warren, Case No. 5,-534.]-</p> <p>[Cited in Cox v. Reynolds, 7 Ind. 262.]</p> <p>4. An individual purchasing property on judicial sales, under the above judgment, will be-compelled to pay the money to the persons for whose security the judgment was assigned.</p>

The jury found a verdict for the plaintiff, subject to the opinion of the court upon the facts stated in the following- case agreed: The counsel for the parties agree to the following case, which, if required by either, may be turned into a special verdict, subject to the opinion of the court.

<p>Case No. 16,893.</p> <p>Power of Attorney to Confess Judgment — Waiver.</p> <p>[Cited in brief in Keith v. Kellogg, 97 Ill. 148.]</p>

Bill in equity, filed March 12th. 1S24. It states that the complainant.

This was an action brought to recover about 810,000, which had been received by Mr. Webster, the attorney of the defendant, under the Florida treaty, for spoliations committed by Spanish cruizers upon sundry vessels which the plaintiff had underwritten, and the losses on which he had paid prior to his bankruptcy in 1S00. The defendant was the agent of sundry claimants under that treaty, and, amongst others, of the assignees under the commission against the plaintiff.

<p>Demurrer [by Daniel W. Vaughan] to bill in equity.</p>

[Bill to recover damages for infringement. It alleged an unlawful use of patented brakes on railroad cars of defendant, but as the number of brakes so used were not known to complainant [Daniel W. Vaughan], he prayed for a discovery, and asked for an account for gains made from the use of such brakes. Defendant demurred: 1st—Because, as alleged, complainant had an unembarrassed remedy at law. 2d— That the claim was barred by the statute of limitations.] 2

<p>Case No. 16,900.</p> <p>Bill op Lading — Excessive Leakage — Negligence—Joinder of Actions.</p> <p>1. A quantity of sherry wine was brought from Cadiz to New York, under bills of lading which contained the words “shipped in good order and well conditioned,” to be “delivered in like good order and well conditioned, dangers of the seas excepted,” and also the words, "weight and contents unknown, and not accountable for average leakage and breakage.” The casks were delivered to consignees to whom the bills of lading had been transferred, but they refused to pay the freight. The master of the vessel filed a libel against the goods and the consignees, to recover the freight. It appeared, that when the casks were discharged, part of them were entirely empty, and others partially empty and leaking, and that the casks were “inferior and shaky” casks. No evidence was onered as to the condition of the casks when shipped. An exception was taken to the libel because it joined a cause of action in rem with one in per-sonam: Held, that, as the cause of action arose out of a contract which, if the respondents were liable on it, also bound the property, and as the respondents claimed the property, there was no reason for not joining the causes of action.</p> <p>[Cited in The J. ,P. Warner, 22 Fed. 343; The Director. 26 Fed. 711: .Toice v. Canal-Boats Nos. 1758 & 1S92, 32 Fed. 554; The Baracoa, 44 Fed. 103.]</p> <p>2. There was no evidence to show that the casks delivered empty and partly empty were not empty and partly empty when shipped.</p> <p>[Cited in Hiller v. Hannibal & St. J. R. Co., 90 N. Y. 435.]</p> <p>3. There was no evidence that the leakage of the casks was greater than “average.”</p> <p>4. To resist successfully the claim of the vessel for freight, it must be shown affirmatively that the loss resulted from negligence on her part.</p> <p>[Cited in Hus v. Kempf, Case No. 6.943; The Tommy. 16 Fed. 603; The Querini Stam-phalia, 19 Fed. 124.]</p> <p>5. Such negligence had not been shown, and the libellant was entitled to the freight.</p>

<p>Case No. 16,903.</p> <p>Constitutional Law—Ordinance of 1787—Fugi-tive Slaves—Rescue—Forfeiture of Property in Slaves.</p> <p>1. The provision in the constitution of the United States, and in the act of congress of 1793 [1 Stat. 302], in regard to the surrender of a fugitive from labor, is binding on the state of Indiana, and its citizens, the same as on the other states.</p> <p>2. A repugnancy between the compact in the ordinance of 1787,, and the constitution, necessarily repeals the ordinance.</p> <p>3. Indiana, by coming into the Union under the constitution, consents to this, and the other party to the compact consents by receiving the state into the Union. This is the common consent required by the ordinance to annul it in part or wholly.</p> <p>4. Full effect must be given to the constitution and law of congress.</p> <p>5. The laws of Missouri sanctioning slavery must be respected, and rights under them enforced.</p> <p>6. Courts are not to discuss slavery in the abstract, or the policy of slave laws.</p> <p>7. An individual is liable to the penalty for a rescue, if he be present and encourage it.</p> <p>[Cited in Weimer v. Sloane, Case No. 17,363.]</p> <p>8. It is not necessary that he should put forth his hand to do the act.</p> <p>[Cited in Weiiner v. Sloane, Case No. 17,303.]</p> <p>9. An owner of slaves, who takes them to the state of Illinois, and keeps them at labor six months, and then removes them to Missouri, forfeits his right to them as slaves.</p> <p>[Cited in Anderson v. Poindexter, 6 Ohio St. 629.]</p>

On the 26th April, 1831, the libellant [James Veacock] signed a contract to perform a voyage from Philadelphia to Canton and back, as first mate on board the ship Atlantic, at the monthly wages of thirty-five dollars. On the same day the ship sailed, and arrived again at Philadelphia on the 26th March, 1832.

<p>Bill iu equity. The bill sets forth in substance, that on the first day of January, 1836, Nathaniel L. Williams of Boston, and Stephen Williams of Roxbury, in the state of Massachusetts, merchants, were the owners of two certain mill privileges, situated on Old Town Falls, in the town of Orono. in said state of Maine. And the said Nathaniel and Stephen, at the Penobscot Exchange, in said Bangor,, on said first day of.January, offered the said two mill privileges for sale, at public auction, to the highest bidder, and then employed one Henry A. Head, to act in their behalf as auctioneer, and instructed the said Head, by themselves, or their agent, to put the said two privileges up for sale, beginning with the sum of $14,500, for the lowest bid or minimum price. And the said Nathaniel and Stephen, did further announce and prescribe as the conditions of sale, ten per cent, of the purchase money to be paid down, twenty per cent, more when the deed should be given, and the remainder in equal payments of one and two years. And the plaintiff [Samuel Veazie’ complaining, says, that relying upon the good faith of the said Nathaniel and Stephen in the premises, and in the good faith and honest and fair dealing of the said Head, in making the said sale, did attend the said sale, and did bid at the auction in and by one Samuel J. Foster, his agent. And the sum of $14,500, the minimum price, having been bid for said two mill privileges, the said Head continued to announce that a still higher sum was offered by some other bidder, and the said Foster supposing that a higher bid had, in fact, been made, did make a still higher bid, and the said Head pretending he had received a still higher offer from some other bidder at said auction, the said Foster offered a still higher sum, until at length the same privileges were stricken off to said Foster for the plaintiff, for the sum of forty thousand dollars, and the plaintiff then supposing the bidding aforesaid had been actually made in good faith, paid down the sum of four thousand dollars, being the ten per cent, of the purchase money, and the further sum of eight thousand dollars on the delivery of the deed, and gave his promissory note for the further sum of fourteen thousand dollars, payable in one year, with interest, which note the plaintiff has since paid, and also gave his further note of fourteen thousand dollars, payable in two years, with interest, on which last note he has paid the interest up to Jan. 1, A. D. 1840. And the said Nathaniel and Stephen, thereupon made and executed a good and sufficient deed of said two mill privileges to the plaintiff, for the consideration aforesaid of forty thousand dollars, so paid and secured to be paid. And the plaintiff, at the same time, made and executed to said Nathaniel and Stephen, a deed of mortgage of said two privileges, as collateral security for the payment of said two notes of fourteen thousand dollars each, and one other note for nineteen hundred dollars, part' of the eight thousand dollars aforesaid. And the plaintiff further alleges and says, that there was, in fact, no real bid at said auction and sale aforesaid for a larger sum than sixteen or eighteen thousand dollars, by or for any real purchaser or person, there intending to purchase; but that said Head, by sham and pretended bids as for some person unknown to the plaintiff, run up the said Foster, by successive pretended bids of one hundred dollars at a time above the bids of said Foster, from the said sum of sixteen thousand dollars, or some such amount, to the enormous amount of forty thousand dollars; whereas the plaintiff charges and says, that in truth there was no real bid by any person intending to purchase, or in behalf of any bona fide intended purchaser whatever, of a greater sum than sixteen thousand dollars as aforesaid, excepting only the bids of said Foster, in behalf of the plaintiff. And the said Nathaniel and Stephen, by reason of the aforesaid management, and proceeding of said auctioneer in the employment of said Nathaniel and Stephen, and by means of his sham and pretended bids at said sale, have received of and from the plaintiff a large sum of money, to wit: the sum of eighteen thousand dollars and upwards, which in equity and good conscience, they ought not to have received, and the plaintiff has been greatly deceived and defrauded. And although the plaintiff having, since the first day of January, A. D. 1840, first discovered the fraud practised upon him, and having thereupon notified the said Nathaniel and Stephen, of the wrongful doings and proceedings of the said Head in the premises, had well hoped that the said Nathaniel and Stephen would not have attempted to take advantage thereof, but would have cancelled the deeds aforesaid, and refunded the money so wrongfully obtained of the plaintiff; yet the said Nathaniel and Stephen, not only have refused to cancel and rescind the deeds aforesaid, and to repay to the plaintiff the purchase money or any parts thereof so received by said Nathaniel and Stephen wrongfully and unjustly; but have sued out of the clerk’s office of the circuit court for the First circuit, a writ of attachment, returnable to the circuit court, then next to be held at Portland, within and for the Maine district, on the first day of May last past, and caused the goods and estates of the plaintiff to be attached, and him to be served with notice according to law, which said suit was duly entered when and where said writ was returnable. and is now pending before said court as a court of law, in which said suit the said Nathaniel and Stephen have declared upon said last mentioned note of fourteen thousand dollars, and are seeking to prosecute the same to final judgment and execution, and thereby to enforce payment of the note aforesaid from the plaintiff. All which actings and doings of the said Nathaniel and Stephen are contrary to equity and good conscience, and tend to the manifest wrong and injury of the plaintiff in the premises. The bill prays, that the said Nathaniel L. Williams and Stephen Williams, may be enjoined from further prosecuting their said suit at law against the plaintiff, brought for the recovery of the amount of said note, and that they may be ordered to deliver up said note to the plaintiff, and that the sale aforesaid may be rescinded and annulled, and that the said Nathaniel and Stephen may be ordered to pay back to the plaintiff all such sums as they have received by reason of the premises from the plaintiff, with all due damages and interest, and for further relief.</p> <p>The defendants, Nathaniel L. Williams and Stephen Williams, in their answer- admit, that they were owners of the said mill privilege, at Old Town Falls, as set forth in the bill, and that, believing that from their local situation, they would command a ready sale at a large price, they employed one J. Bright, who resided at the city of Bangor, not .far distant from the said property, to advertise- the same for sale at public auction, on the said first day of January, eighteen hundred and thirty-six. That a few days before the said day when the said sale was advertised to take, place, the respondents not being able to go to Bangor and make the necessary arrangements for the sale, employed and deputed one Stephen H. Williams, the son of the said respondent, Stephen Williams, to go to Bangor, and employ an auctioneer, and make all necessary arrangements for the sale. But the respondents deny that then or at any other time, they instructed the said Stephen H. Williams or the said Bright, or any other peison, or in any way intimated or suggested to them, or either of them, or to any other person; that there should be any by-bidding, or any fictitious bid at tbe said auction sale, or any other practice whatsoever- at the said auction sale, inconsistent with entire fairness and good faith, or that at any time before the said sale took place, the said Stephen H. Williams or the said Bright, or the auctioneer employed, as hereinafter mentioned, or any other person whomsoever, received from these respondents, or either of them, to the knowledge or belief of either of them, any authority, instruction, intimation, or suggestion, to run- the said property up by fictitious bids, at the said auction, or to do, or cause to be done, any thing fraudulent or unfair, or inconsistent with entire and perfect good faith.</p> <p>The respondents admit, that they did affix a minimum price, of fourteen thousand five hundred dollars, to the said property, as is stated in the said bill, intending to protect the same from being sacrificed and sold for much less than its true value, but aver that they did not instruct their agent, or any other person, to keep the same secret, and though they have no personal knowledge thereof, yet they believe and admit, that it was well known at the said auction sale, that such minimum price had been prescribed and fixed by the vendors of said property; but they are informed and believe it to be true, that no bid was made at the said sale by any agent of the respondents, in consequence of the fixing of the said minimum price; bids far exceeding that amount being immediately made by those desiring and intending to purchase, so that no agent of the respondents had any occasion to bid thereon, to prevent the same from being sold for less than the said minimum price. And the respondents further admit, that the other conditions of sale were, ten per cent, of the purchase money to be paid down, twenty per cent, more when the deed should be delivered, and the remainder was to be paid in two equal instal-ments, at the end of one and two years from the sale. That they are informed, and believe it to be true, that the said Stephen H. Williams. being empowered and commissioned by the respondents as aforesaid, proceeded to Bangor aforesaid, and having made inquiry after a suitable auctioneer, was recommended to employ one Henry A. Head, a person who was said to be duly licensed and empowered to act in that capacity, under the laws of the state of Maine, and to be a skilful man, and much employed in the sale of lands; and thereupon the said Stephen H. Williams, supposing and believing him to be an honest man and a good auctioneer, did employ him to act as auctioneer in making sale of the said property at the said auction. And the respondents are informed and verily believe it to be true, that the said Stephen H. Williams did not authorize or request the said Head or make any suggestion or intimation to him, that he the said Head should or might pretend, that he had received any bid, which he did not in fact receive, or should or might do any act or thing which would be contrary to the most perfect good faith, or in any way inconsistent with the just rights of bidders or purchasers, at an open and fair auction sale; but on the contrary thereof, the respondents are informed, and verily believe, and do aver, that the said Head Was employed by the said Stephen H. Williams, as a public officer empowered by the laws of Maine to make auction sales, and with the full belief that the same would be conducted by him in all respects as his duty as such public officer required; and they are further informed and believe it to be true, that the said Head was not authorized or requested by the said Stephen H. Williams, or in any way empowered to bid up to the said minimum price for the said property, or to make any bid whatsoever thereon, on account of your respondents. And the respondents further say, that they were not present at the said sale, and have no personal knowledge thereof; but to the best and utmost of the knowledge and belief of each of them respectively, they deny, that there was no real bid at the said auction sale for a larger sum than sixteen or eighteen thousand dollars, or any such sum, by or for any real purchaser or person there intending to purchase; or that the said Head, by sham and pretended bids, run up the said Foster (in the said bill mentioned as the agent of the said complainant) by successive pretended bids of one hundred dollars at a time, above the bids by the said Foster, from the sum of sixteen thousand dollars, or any such amount, to the sum of forty thousand dollars; or that in truth there was no real bid by any person intending to purchase in behalf of any intended bona fide purchaser of a greater sum than sixteen thousand dollars, or any such sum. That after the said sale had taken place, the said Veazie did represent to the respondents, that the said Foster had acted as his agent in bidding off the said property at the said auction, and exhibited very great anxiety to have the conveyance of the said property made; and the respondents are informed, and believe it to be true, that there was at the time of the said sale, a great competition for the purchase of the said property, not only on account of its own intrinsic value, but also on account of its local position in respect to other property belonging to different persons; and that the said Veazie, before the said sale, authorized the said Foster to bid as high as forty thousand dollars for his account; and that the said Veazie, immediately after the said sale, manifested great eagerness to have the bargain closed, and much anxiety lest the respondents should be induced by an offer of a larger sum than forty thousand dollars by some other person, to refuse to complete the same. But the respondents, acting in entire good faith, and without any fraud, concealment. or misrepresentation, proceeded to execute the contract aforesaid, and did execute and deliver to the said Veazie, a good and sufficient deed of the said property, and received from the said Veazie the money payments in the said conditions of sale mentioned, and a further portion of the purchase money, amount-iag to rlie sum of two thousand dollars, which tlie said Veazie voluntarily paid in cash, and the notes of the said Veazie, payable in one and two years respectively, for the residue of the said purchase money, secured by a mortgage upoD the said property; and the said Veazie having paid one of the said notes, the respondents were content to allow the other to remain unjiaid, though at maturity, the saidVeazie continuing to pay annuai interest on the same up to the first day of January, eighteen hundred and forty, when he made the last payment; though the said Veazie never gave to your respondents, nor to either of them, to the knowledge or belief of either of them, any information or notice, tnat he deemed the said sale invalid, for any reason, or would not pay the said remaining note, until on or about the fourteenth day of January, A. D. eighteen hundred and forty-one; and the respondents then caused a suit to be instituted on the said note, which is the same - suit mentioned in the said bill of complaint.</p> <p>And the respondents, further answering, say, that since the said sale was made, and before the filing of the said bill, more than five years and sis months had elapsed. That, in. the mean time, not only have your respondents lost the benefit of much evidence, which they verily believe they might have obtained, as to the occurrences at the said sale, but there has been a very great change and depreciation in the value of real property, of all kinds, in that part of the said district of Maine, where the said property is situated, and in an especial manner has there been such change and depreciation in the value of the said property, sold to the said Veazie, as aforesaid. That owing to a large increase in the number of mills in that vicinity, the growing scarcity of timber, and the concentration of timber lands into a few hands, together with the financial difficulties by which the country has been oppressed, mill seats, on that part of the Penobscot river; and especially those in question, have been greatly depreciated in value, and are now intrinsically worth very much less than when the said sale was made; and these respondents are informed and believe, that changes have been made in the said property, by building on, and otherwise altering the same.</p> <p>The respondents are not informed at what time, in particular, the said Veazie pretends to have first discovered the pretended fraud in the said bill, alleged to have been practiced at the said sale, but the respondents verily believe, that whatsoever was done at the said sale, material to the interests or right of the said Veazie, might have been known to him at any time, if the same were not actually known to him, as to which the respondents have no knowledge or information, and they pray that proof of due diligence may Be required of the said Veazie. The respondents verily believe, that since the changes aforesaid have taken place In the condition and value of the said property, the said Veazie would gladly annul the said bargain, and have the said property restored to your respondents, in its altered and depreciated state, and compel your respondents to repay to him so much of the price thereof as he has paid to them, and so much money as he has seen fit, for his own purposes, and pursuant to his own views and plans, to expend on the said property; but your responuents pray the judgment of this honorable court, whether, after the lapse of so much time, and after such great changes have taken place in the condition and value of the said property, this honorable court will set aside the said contract, more especially as the said respondents deny, to the best and utmost of their knowledge, information and belief, that the alleged fraud, stated and charged in the said bill, was in' fact practised, or that the respondents, or either of them, to the knowledge or belief of the other of them, have or has ever concealed from the said Veazie, or attempted to conceal from him, or used any means whatsoever to conceal from him any matter or thing, done, said, or transacted at the said sale, or having any connection therewith; and the respondents further say, that they are informed, and believe it to be true, that, previous to the said sale being made, the said Head made some inquiries of the said Stephen H. Williams, the agent of your complainants, as to his compensation, to which the said Stephen H. Williams answered, he would pay him what was eustomaiy, and this was the only contract, agreement, or understanding with the said Head, in regard to his compensation. That just before the said .sale began, the said Head said in a laughing way, that he should be willing to take for his services, what the property should bring over the said minimum price; but the said Stephen H. Williams understanding the remark as not seriously intended, made no reply; and these respondents verily believe that said remark was meant as a jest, for they are informed, and believe it to be true, that the said Head never after recurred to it. And the respondents are informed, and believe it to be true, that the said Stephen H. Williams paid to the said Head, the sum of two hundred dollars as a compensation for his services as auctioneer in selling the said property; that the said payment was made after the said sale had been effected, and the sum paid was deemed reasonable by the said Stephen H. Williams, and was not disapproved by these respondents, when the same came to their knowledge, and that there was no contract, agreement, or understanding, to the knowledge or belief of the respondents, that the said Head was to receive nothing for ■his services-, if no sale were effected, nor any other contract, agreement, or understanding than the one above mentioned.</p> <p>The following agreement' of facts also appeared in the case: “In the above entitled cause, it is agreed, that before the said bill was filed by the complainant against the defendants, the counsel of the complainant called on ti/- witness. Head, who has been examined in this cause, and requested the said Head to state to him the facts and circumstances of the sale at auction, which is the subject of this suit, and upon a suggestion by the said. Head, that it might involve him in some pecuniary responsibility, the counsel of the complainant assured the said Head, that the complainant would give him a release of all claims on his part. That afterwards, and before the said bill was filed, the said Head was summoned to give a deposition in perpet-uam, before two magistrates, at Bangor, in the said district; and the complainant and his counsel, and also a gentleman of the' bar, who appeared in behalf of the said respondents, being present, the release, a true copy whereof is hereto annexed, and which may be used instead of the original, was drawn by one of the said magistrates, and executed and delivered to the said Head, by the said complainant. That the gentleman who then and there acted as counsel for the said respondents, has not acted for them in this suit in equity,— Messrs, Curtis, of Boston, and Mr. Charles S. Daveis,- of Portland, having condr. ted the de-fence of this suit,—and neither 1 fay nor the respondents, had any knowledge of this release, until after the publication of the evidence in this suit, when finding an allusion to it in the testimony of the said Head, they took measures to, and did procure a copy thereof. And it is further agreed, that the said release, and the above facts and circumstances may be referred to, and made use of in this cause,with the same effect as if the same had been-put in issue by a cross bill, and admitted by the answer, and this agreement is to be made a part of the said ease, and to be filed therein. Know all men by these presents, that I, Samuel Veazie, of Bangor, in the county of Penob-scot and state of Maine, Esquire, in consideration of one dollar to me paid bv Henry H. Head and Nehemiah O. Pillsbury, both of said Bangor, auctioneers, and late co-partners in the auction business, under the firm and style of Head & Pillsbury, the receipt whereof X do hereby acknowledge, do hereby release and discharge said Head & Pillsbury, jointly and severally, from all damages by me sustained, or supposed to be sustained, and from all action, or causes of actions, to me accrued, or accruing, , in consequence of any misfeasance, non-feasance, or malfeasance, or any illegal, management, by them done, performed, or suffered, at the sale at auction of Nathaniel L. Williams and Stephen Williams’ real estate, situated in Old Town, in said county of Pe-nobscot, on or near Old Town Palls, so called, which was sold at auction, in or near January 1st, 1835, by the said Head & Pillsbury, as auctioneers, hereby also releasing the said Head & Pillsbury from any claim for damage, by or in consequence of any of their proceedings, relating to said sale of said property. In witness whereof, I have hereto set my hand and seal, this twenty-first day of July, A. D. 1841. Samuel Veazie.”</p> <p>contended, as a preliminary point, decisive of the whole cause, that the release to Head, the auctioneer, connected with the agreement of the parties, amounted to a virtual extinguishment of all right of action against the defendants, since a discharge of Head from all responsibility was a discharge of his principals also, who were only liable for his torts by relation; and if they were compellable to pay damages to the plaintiff, or the relief sought by the bill was obtained, they would have an action over against Head, so that it would defeat the indemnity intended by the release.</p> <p>that this was contrary to the intent of the parties in the release, which was to discharge Head, personally, from all liability, but to retain the entire right against the defendants, in the same manner as if the release had not been given.</p>

<p>Bill in equity. The substance of the original bill and answer, will be found in [Case No. 16,-006]. The plaintiff [Samuel Veazie] afterwards filed a supplemental bill, which stated in substance, that after the replication of the plaintiff had been filed, and after the time for taking testimony had expired, but before publication, the counsel of the defendants [Nathaniel L. Williams and Stephen Williams] applied to the counsel of the plaintiff to admit the execution and delivery of a release by and from the plaintiff to Henry A. Head, who, in the plaintiff’s original bill; was alleged to have been the agent of these defendants, and for whose acts they were sought to be charged. That his said counsel, knowing that a release had been given by the plaintiff to the said Head, as is hereinafter stated, and if available to the defendants, could be introduced by the aid of a cross bill— to avoid the delay incident thereto, consented and agreed,'that the release which was not then, seen by the said counsel, but which the said counsel supposed truly to express the intention of the parties, might be referred to in the hearing of the said original bill, with the same effect as if it had been put in issue by a cross bill and admitted in the answer. And the plaintiff further shows, that the said release had been delivered to the said Head prior to his exhibiting his original bill, but the same, was not set forth therein, because it was between other parties, and expressing the true intent and meaning of those parties, as the plaintiff, until the original bill was set down for a hearing, supposed it did. that it did not concern the defendants and could not in any manner affect the rights and equities of the parties of the said original bill, and that it was not discovered, until after publication had passed upon the testimony in the said case, that it could or did affect the rights of the plaintiff. And that the said release is not alleged in the said original bill to have been given, neither is it relied upon or set forth in the answers of these defendants, and is put in issue as new matter by the aforesaid agreement of counsel. That the defendants now insist that the said release is a legal satisfaction of the injury, whereof the plaintiff in his original bill-complains. and that the same is, in law and equity, a discharge and release, which enures for the benefit of these defendants, of all the plaintiff’s claims and equities in his original bill preferred against them. That the said Head paid him no consideration for the said release, and has made him no satisfaction for the loss and injury which he has sustained, as set forth in his original hiil; and that the said release, whatever may be its terms, or the legal effect of it, as thus expressed, was not intended by the parties to it. to discharge, or in any way or manner to impair any claim, which the plaintiff had or might have against these defendants, growing out of their or the said Head’s acts or doings in the premises, and that the said release, if in its terms it imports a different significance, is a fraud upon the plaintiff, and was so written by mistake. That the said release was not given in pursuance of any agreement or understanding between the plaintiff and the said Head; that he was informed by his counsel, that upon the counsel’s application to the said Head for a disclosure of such facts as were within his knowledge respecting the matters set forth in the plaintiff’s original bill.- the said Head declined to make a disclosure upon the ground, that the plaintiff might sue him the said Head, and that he did not want a lawsuit with the plaintiff—that his counsel then assured the said Head that such was not the purpose of the plaintiff, but that he desired the proof, for the sole purpose of instituting proceedings in equity against these defendants, and that the plaintiff would give him an obligation which should release him from all suits against him on behalf of the plaintiff—that Head’s liability to these defendants was at no time the subject of negotiation or conversation, and that no indemnity therefrom was at any time asked or offered or intended. And the plaintiff is advised, that the said release, according to the intent and meaning of the parties thereunto, was not intended to express an acknowledgment of satisfaction, or to intend any agreement, beyond a stipulation. that for any injuries which the plaintiff had sustained in the premises, his remedies, should not be applied against the said Head— and that the said release should be so construed and reformed. And the plaintiff further shows, that the agreement, in pursuance of which the said release was executed, and the only agreement of which it was a consummation, was made between the counsel of the plaintiff and the said Head—and that the plaintiff had no conversation with the said Head about the said agreement or release, but that his counsel, in the presence of the magistrate before whom the said Head was called to give his deposition, and in the presence of the attorneys of these defendants, requested one of the said magistrates to write a release, or some agreement, the language of which request, the plaintiff could not now state and does not recollect, and the plaintiff signed, without inquiry, the paper so executed.</p> <p>The defendants in their answer to the supplemental bill admit that the said original bill, and a replication to the joint and several answer of these defer dants, were filed as it is stated in the said .-upplemental bill, and the parties did thereupon proceed to take their proofs in the said cause. That after the time for taking the testimony in the said cause had expired, and' after publication thereof, the counsel of the defendants having discovered from the answer of one Head, who was examined as a witness in the said cause, to the sixth direct interrogatory proposed to him by the said plaintiff, that some release had been executed by the said Yeazie to the said Head, touching the matters in controversy in the said cause, applied' to the said Head and obtained a copy of such release. Each of the respondents declares that he had not, and to the best of the knowledge, information and belief of each of them, the other of them had not, nor had either of the solicitors or counsel of these respondents in the said cause any notice or knowledge of the said release, prior to the discovery thereof, in manner aforesaid. And these respondents further answering, admit that the counsel of these respondents md apply to the counsel of the said Yeazie. and did request him. in behalf of the said Yeazie. to agree that the said release might be put in the said cause, and availed of therein as if the same had been put in issue by a cross bill, and the said counsel of the said Yeazie replied that he would so agree, provided certain facts, which were then and there stated in writing by the said Yeazie’s counsel, should be agreed to, and accompany the release, and thereupon the agreement was made and signed, which was filed in the said cause, and to which these respondents crave leave to refer. The respondents admit that the said release was not put in issue by the- said original bill, but these respondents are wholly ignorant of the motives or reasons which prevented the said Yeazie from putting the said release in issue; and the respondents admit that the said release was not put in issue by the answer of these respondents to the said original bill, inasmuch as the respondents wrere ignorant of the existence of the said release, at the time when their answer was filed. The respondents admit that they do now insist, that the said release is a bar to the said original bill; and that they, and each of them, are thereby- discharged from all matters of complaint in the said original bill set forth. The respondents do not know and have never been informed, otherwise than as they are by the said supplemental bill, and cannot set forth what consideration, if any, was paid by the said Head to the said Veazie for the said release, but the respondents insist and humbly submit, that no consideration was necessary to the complete and perfect validity of the said release. And as to the intentions of the said parties, and their understanding that the said release would or would not have the legal effect of discharging these respondents from the pretended claims -ot the said Veazie, set forth in the said original bill the respondents, answering, say that these respondents, and to the best of their knowledge .and belief, the said Head also, have acted in good faith, as far as concerns the said release; that they nor either of them have or has practiced any fraud or imposition to proa re the same, or to cause any terms or language to be used therein, which the said Veazie did not intend to use; that no such fraud, or imposition, or want of good faith is charged or averred in the said supplemental bill; that the respondents are' informed and believe, that the said release was signed by the said Veazie, and its language and terms agreed to by him, in the presence and under the advice of his counsel learned in the law, and were and are such as were selected by the person employed by botn the said Veazie and Head to draw the said release, and the same were assented to by the said Veazie under no mistake of any fact whatsoever. And, therefore, the respondents do insist and submit to this honorable court, that it is not competent for the said Veazie to offer any proof whatever to control, or alter, or effect the legal import and effect of the said release, and they pray, that they may have the same benefit of this objection as if the same had been taken by way of a plea or demurrer to the said supplemental bill. And as to the intent of the said Veazie and Head, and as to the agreement between them, or the inducements which led thereto, or the objects designed to be effected by the said release, these • respondents, not waiving their objection aforesaid, but insisting thereon, answering^ say, that they have no knowledge thereof, but they have been informed by the said Head, and believe it to be true, that before the said release was given, the duly authorized attorney of the said Veazie had promised, that the said Veazie would give to the said Head a writing, holding him the said Head harmless from all claims and demands growing out of, or connected with the auction sale in the said original bill mentioned, and that the said releas^- was subsequently given pursuant to and in execution of the said promise. But the respondents do not believe and do therefore deny, that the said Head had any understanding or expectation, that after a writing of indemnity so promised as aforesaid should be executed, he the said Head should still be liable to any action or claim for damages by the respondents, or that the said Head understood or expected, that any such construction or effect could or would be given to the said release, as would prevent the same from holding him harmless from the claims of these respondents, and as to the understanding or exceptions of the said Veazie, the respondents are not informed, except by the said supplemental bill, and cannot set forth the same. And as to so much of the said supplemental bill, as prays that the said release may be reformed or construed otherwise than according to its legal effect, the respondents insist and submit that the said supplemental bill does not show any right to have any particular change, or any change, made in the said release, and they may have the same benefit of this objection as if the same had been taken by way of plea or demurrer to the said supplemental bill.</p> <p>The cause came on to be heard on the merits, and upon the evidence taken in support of the bill and answer.</p>

The special verdict stated, that in the lifetime of Abner Mitchel, the intestate, the plaintiffs sent to him, tor sale, two bills of exchange on France, with instructions to remit them the proceeds. The intestate sold the .bills, and remitted to the plaintiffs the proceeds of one of them, except $60, which he had in bank notes of the South Carolina banks. For the other bill he took the check of the purchaser, payable some days after the sale.

<p>Case Wo. 16,910a.</p> <p>Prize—Enemy Property—Costs—Advances by Master—Wages of Crew.</p> <p>1. Vessel condemned as enemy property. Her cargo, being neutral .property, on transportation in a lawful trade, released; without cost to the captors, there having been no probable cause for its arrest.</p> <p>2. Whether the captors, as distinguished from the United States, can have an award of costs in a prize suit, quere.</p> <p>3. A claim of the master to be reimbursed his advances for repairs and necessary supplies for the vessel reject-d.</p> <p>4. A claim of the crew for their wages rejected on the ground that the vessel was enemy property.</p>

<p>Case No. 16,911.</p> <p>Maritime Liens—State Statutes—Surplus Proceeds.</p> <p>The act of the legislature of the state of Ohio, entitled “An act providing for the collection of claims against steamboats, and other water craft, and authorizing proceedings against the same by name,” passed February 26, 1840, confers no lieu in favor of the description of persons therein mentioned, and consequently such persons having claims against a vessel which has been sold under a decree of a district court of the United States in an admiralty suit in rem, are not entitled to payment out of the surplus proceeds of the sale of such vessel. Quaere, whether if the act gave a lien, it could do mforeed out of the state of Ohio.</p>

<p>Case No. 16,913.</p> <p>Shipping—Authority op Master—Sale ofCaroo at Port op Distress—Freight.</p> <p>1. When a ship, in consequence of a disaster occasioned by the dangers of the seas, is obliged to put into a port for repairs, if they are such as will require considerable time, the master, for the interest of the shipper, may sell such part of the cargo as is of a perishable nature.</p> <p>(.Cited in Moore v. Hill, 38 Fed. 331.]</p> <p>2. The shipper may recover the proceeds of the sale by a libel against the ship.</p> <p>3. In such case no freight is due to the master.</p> <p>4. The only case in- which a pro rata freight is due. is when the merchant voluntarily accepts his goods at an intermediate port, not when they are forced on him by necessity.</p>

Action, of assumpsit. This action was brought in the circuit court of the city of Petersburg. The defendant [George S. Richards] being a collector of internal revenue of the United States, and the suit being for taxes collected by him from the plaintiffs as snuff manufacturers, he filed his petition in this court for a writ of certiorari for the removal of the cause out of the state court.

<p>Case No. 16,914.</p> <p>Pkizs—Violation op Blockade.</p> <p>Vessel and cargo condemned as enemy property, and for an attempt to violate the blockade.</p>

<p>Case No. 16,915.</p> <p>Habeas Corpos — Jurisdiction’ — Extradition Proceedings —State Courts—Discharge of Soldier or Sailor.</p> <p>1. On habeas corpus the court will merely look into the sheriff’s return containing the warrant; and if the officer issuing it had jurisdiction of the process, and assumed to take proof upon the issuing of the same, which proof he adjudged to be sufficient, the court will not review his adjudication upon that question, nor undertake to say whether he erred in adjudging the proof sufficient.</p> <p>[Cited in Re Maedonnell, Case No. 8,771; s. c.. Id. 8,772: Re Stupp, Id. 13,563.]</p> <p>2. A commitment by a United States commissioner. and a warrant of extradition by the secretary of state, charging an individual with “having committed, within the jurisdiction of France, the crime of >ol qualifie crime, one of the crimes enumerated and provided for in the treaty of extradition between that government and the United States,” contain a sufficient allegation of crime, under the treaty; the words imply the commission ot an extensive larceny, attached to which is an infamous punishment, like confinement at hard labor. '</p> <p>3. Where a prisoner brought up on habeas corpus is held under several commitments, one under state authority for an offence against the state, and the other under United States authority by virtue of a treaty of extradition with a foreign nation, the United States court will dismiss the habeas corpus—that portion which relates to of-fences against the state—for want of jurisdiction, and the other portion because the commitment and warrant of ex-radition comply substantially with the treaty and the act of congress.</p> <p>4.A state court has no jurisdiction on habeas corpus to discharge a soldier or sailor held under a United States law.</p> <p>[Cited in Re Forrand, Case No. 4,678; Re Henrich, Id. 6,369.]</p>

<p>Case No. 16,916,</p> <p>Ci.ekk’s Fees fob Seakchixg fob Petitions is Bankbcp rev.</p> <p>1. The compensation to the clerk of the court for searching for petitions in bankruptcy is not expressly provided for in section 828 of the Revised' Statutes of the United States.</p> <p>2. A reasonable compensation for such service-is fifteen cents for each name searched against.</p>

<p>Case No. 16,917.</p> <p>Whakfage—Navigating the Canals.</p> <p>1. The act of the state of New York of May 6, 1870 (Sess. Laws 1870, p. 1696), fixed certain new rates of wharfage, “except that all canal-boats engaged in navigating the canals in this state, and vessels known as North river barges, shall pay the same rates as heretofore.”</p> <p>2. A vessel propelled by steam power, for the sole purpose of towing boats on the canals, while in the process of construction, occupied a wharf in the port of New York. Held, that she was a canal-boat within the meaning of the exception above stated, but was not engaged in navigating the canals, and was, therefore, liable to pay wharfage at the rate prescribed by the act of 1870.</p>

<p>Case No. 16,919.</p> <p>Forfeiture of Land Grants — Corporation's — Scire Facias—Conditions of Grant-Nominal Rent—Pleading.</p> <p>1. The king of Great Britain granted a charter of a town in that part of the province of New-Hampshire. which is now -Vermont, to be divided among the grantees, and to be held on certain conditions mentioned in the charter. The defendants, who were one of the grantees, were a society in England incorporated by a charter from the king. A scire facias was issued' on behalf of the plaintiffs, requiring the defendants to show cause why a forfeiture of their right to the lands had not been incurred, and assigning as grounds of forfeiture a non-performance of the conditions on which the lands were held, and violations of their charter of incorporation. On ■demurrer to the scire facias, held, that such violations of their charter of incorporation could not be thus collaterally drawn in question, but that it should be vacated by some direct proceeding for the purpose.</p> <p>[Cited in Southern Pac. R. Co. v. Orton, Case No. 13,188a.]</p> <p>2. Among the conditions of the grant were, that the grantees, their heirs and assigns, should pay rent and cultivate a certain portion of the land. Held, that no reasons of public policy exempted the defendants from the performance of these conditions, and that they were within their letter and spirit.</p> <p>3. Each grantee was to pay annually for the first ten years, an ear of corn, rent for his share of the land, if lawfully demanded. Held, that this was a mere nominal tent, and its non-payment not a ground of forfeiture, and that the breach of the condition was ill assigned, as there was no averment that it had been lawfully demanded.</p> <p>4. After the first ten years a rent of one shilling for every hundred acres was to be paid annually to the grantor, in his council chamber in Portsmouth, or to such officer as should be appointed to receive the same. Held, that payment at the place appointed had been rendered impossible by the separation of the countries, and that the plaintiffs should have averred that they had appointed another place of payment or an officer to receive the payment, and that notice thereof had been given to the defendants.</p> <p>5. There was no declaration, .but the writ of scire facias was demurred to. Held, that the legal effect was the same as if the demurrer had been to the declaration, and the same judgment was ordered to be entered.</p> <p>[For hearing on demurrer to certain. pleas which were interposed, see Case No. 16,920.]</p>

<p>Case No. 16,920.</p> <p>Pleading—Land Grants — Reversion—Breach op Conditions—Forfeiture of Crown Grants —Effect of Revolution—Rights of State-Estoppel against State.</p> <p>1. On demurrer to several pleas, if any one of them going to the whole merits of the case is well pleaded and contains a full and sufficient answer, it will entitle the defendant to judgment.</p> <p>2. At common law. nothing that lies in action, entry or re-entry, can be granted over; and, therefore, no grantee or assignee of a reversion, can take advantage of a re-entry by force of a condition broken.</p> <p>3. Whether a mere right to enforce a forfeiture would result from the Revolution so as to be transferred to a state. Quaere.</p> <p>4. The doctrine of estoppel applies to a state as well as to private persons. Where, therefore, a state, by an act of its legislature, granted to a town forever the use of certain lands for the benefit of the town, it was held that the state having parted with all the interest it had in the lands, was estopped from claiming a forfeiture, by reason of a condition broken before the grant was made.</p> <p>[Cited in Indiana v. Milk, 11 Fed. 397.]</p> <p>5. Nor wouid it be a good answer on the part of the state in such case, that the grant to the town was in trust, and that the trust had been violated: the town not having been made a party to the proceedings, and the act not having been repealed, or any measures taken to resume the possession of the land on account of any breach of trust, or violation of the grant.</p> <p>6. Any one may perform a condition who has an interest in it, or in the land whereto it is annexed; and if a time to perform be appointed, the purchaser may perform.</p> <p>7. When a condition is once performed, it is thenceforth entirely gone, and the thing to which it was before annexed becomes absolute, and • wholly unconditional.</p> <p>8. Where the grant to which the condition broken was annexed, was originally made by the British government, and the title of the state grew out of the consequences of the Revolution, and the forfeiture was incurred before the state had any interest in the land, it was held that the performance of the condition by the town according to the terms of the original grant, subsequent to the grant made to the town by the state, saved the forfeiture.</p> <p>NOTE A. If no trick has been resorted to for ■the purpose of delay, the demurrer cannot be disregarded. Anon., 4 Hill, 56. A plaintiff is not at liberty to treat a demurrer to a declaration as a nullity, and enter the defendant’s default for not pleading; and the court, on a motion to set aside such default, will not pass upon the question of the validity of the demurrer. Coster v. "Waring, 19 "Wend. 97; Anon., 4 Hill, 56. Where the defects in a declaration are of such a character as that a verdict will not cure them, the defendant, on demurrer to a special plea, may attack the declaration, notwithstanding that the general issue was pleaded with the special plea. Miller v. Maxwell. 16 Wend. 9. A plaintiff is not bound to take judgment by nil dicit where a defective plea ■ is interposed, but may demur. Underwood v. Campbell. 13 Wend. 78. It seems where, to a declaration on a bond for the performance of covenants, a plea of non est factum only is put in, without a notice of special matter attached, that the defendant may both demur and plead: but that he cannot do both where such notice is attached to the plea, as the plea and notice conjoined will be considered as equivalent to a special plea to the whole declaration. People v. Ten Eyck, Id. 448. Formerly, in assumpsit, a defendant might traverse not only the contract itself, but the consideration and the plaintiff’s performance of a condition precedent; but now the practice is obsolete, and where the defence consists of matter of fact amounting to a denial of the allegation which the plaintiff must prove in support of his declaration, the general issue must be pleaded, or it-will be good cause of special demurrer that the plea amounts to the general issue. Wheeler v. Curtis, 11 Wend. 653. Where a defendant pleads the general issue, and also a special plea, to which the plaintiff replies, and a demurrer is interposed to the replication, although the plaintiff may object to the plea, if bad in substance, the defendant cannot overleap the general issue and object to the declaration: he cannot plead and demur to the same count. Id. Where a defendant has pleaded the general issue, he cannot, upon a demurrer to the replication, or subsequent pleadings, attack the declaration. Russell v. Rogers, 15 Wend. 351; Dearborn v. Kent, 14 Wend. 183. Though ? demurrer be interposed to the defendant’s plea, and it be defective, he will still prevail, if the count to which the plea relates is bad in substance. U. S. v. White, 2 Hill, 59. Otherwise, where the plea is to several counts, one of which is good in substance, though all the rest be bad id. In England, if a plea begins as an answer onlv to part of the declaration, and is in truth only an answer to part, the plaintiff cannot demur, but must take judgment for the part unanswerea as by nil dicit. Here, however. it is otherwise; and to such plea a general demurrer will be sustained. Etheridge v. Osborn, 12 Wend. 399. In indebitatus assumpsit, it is not a. cause of demurrer that the declaration states the indebtedness of the defendant, and his promise to pay in a sum greater than what, from the cause of action set iorth in the declaration, he is entitled to recover. Waite v. Barry, Id. 377. Where a demurrer to a declaration is overruled by a justice, and the defendant subsequently pleads the general issue, and after verdict against him appeals to the common pleas, that court is authorized to pass upon the validity of the demurrer, and. if well taken, to give judgment for the defendant. Wickware v. Bryan, 11 Wend. 545. In debt against several on a judgment of the supreme court of Ohio, two of them, viz.. P. and T„ pleaded that it was void for want of jurisdiction, having.been rendered in a suit of which neither they nor their co-defendants had notice, and that none of them appeared therein. &c.: replication that P. and T. employed an attorney to appear in the suit, and did, by said attorney, so appear, as well for themselves as for the other defendants, &c. On demurrer to the replication, it was sustained, and the matter contained in it held sufficient to estop P. and T. from alleging either their own non-appearance, or that of the other defendants. Reed v. Pratt, 2 Hill, 64. Where a demurrer is interposed to a surrejoinder, the plaintiff may go back and avail himself of a defect in the plea. Mercein v. Smith, Id. 210. Where there are two counts in a declaration on the same instrument, and there is no plea to the second count, but the plea to the first count contains an averment that the instrument set forth in that count is the" same identical instrument set forth in the second count, it cannot be objected upon general demurrer that there is a defence to only one of’the causes of action set forth in the declaration. Case v. Bougiiton, 11 Wend. 108. Though after a demurrer to a declaration is adjudged frivolous, the court reluctantly gives leave to a defendant to plead anew; yet wher». in such a case, an affidavit was made that the demurrer was put in in good faith, that the defendant had a defence on the merits, and that unless he was permitted to plead to the count demurred to, the whole cause of action would stand confessed upon the record, leave wifi be given to plead anew. Patten v. Harris, 10 Wend. 623. It seems that a demurrer put in, not with a view of disposing of the case on the merits, but solely in the hope of its proving successful, cannot properly be said to have been put in bona fide. Id. A demurrer is not an issuable plea within the meaning of the 21st general rule of this court. Marsh v. Barney, Id. 539. Nonjoinder of a private corporation as defendant cannot be taken advantage of by demurrer, unless the declaration show the corporation to be still in existence. State of Indiana v. Woram. 6 Hill, 33. If a plaintiff assigns a good breach of a condition of a bond, and then proceeds and specifies the items of damage sustained by Kim, the defendant cannot- demur to such specifications: the question whether the plaintiff is entitled to recover the items specified, will be determined on the trial. Williams v. Maden, 9 Wend. 240. A declaration by a plaintiff, as administrator, containing counts for goods sold and delivered and work done, with the common money counts, without stating any indebtedness to the intestate, or referring to the plaintiff in his representative character in any subsequent part of the declaration, except in a profert of letters of administration, is bad on demurrer. Christopher v. Stockholm, 5 Wend. 36. Each count should distinctly state the indebtedness of the intestate. Id. A defect of duplicity in pleading, cannot be taken advantage of by general demurrer, but it must be specially pointed out; and upon a general demurrer to two or more counts, if one be good, there will be judgment for the plaintiff. Wolfe v. Luyster, 1 Hall, 146. The first count of the declaration set forth that the defendant (an auctioneer) received certain goods of the plaintiff, to be sold for him under an agreement not to part with or dispose of them below a certain stipulated price; and that, in violation of this, agreement, he had sold the goods for a sum below that to which he was restricted, and had not accounted for the proceeds. The second count alleged that the defendant received the plaintiff’s goods for sale, and agreed to render, as the amount brought by said goods, the full sum of $'500. The breach assigned was, that the defendant had not rendered a just account of the goods, nor paid the full sum of 8500. Upon a general demurrer to these two counts, the first was held to be good in substance, although defective for duplicity in assigning the breach; but the second was held to be bad on the face of it, for the want of an averment of the sale of the goods. Id. If a plea profess to answer only a part of a count, and is in truth but an answer to part, the plaintiff may demur, and is not bound to take judgment for the part unanswered; so held, where, in covenant, two breaches were assigned, and the detendant put in a plea as to the breach first assigned, without taking any notice of the second breach. Slocum v. Despard, S Wend. 615. So, also, where a plea professes to answer all the breaches assigned in a declaration where there are two or more, and is, in fact, but an answer to one the plaintiff may demur. Id. Where a defendant pleaded non assumpsit and three special pleas, and the plaintiff put in a general demurrer; it was held, that such demurrer did not apply to the plea of the general issue, the demurrer purporting to be an answer in the several pleas of the defendant, by him pleaded to the first, second and third counts of the declaration, and the plea of the general issue being to the whole declaration, and not specifically to either count. Gomez v. Garr. 6 Wend. 583. A defendant cannot both plead and demur to the same part of the declaration. Rickert v. Snyder. 5 Wend. 104. The declaration alleged ibat ir was agreed between the plaintiff and the defendants: 1. That the plaintiff should subscribe for and take eighty lots of ground in a certain tract in the city of New York, ‘‘agreeably to the conditions as set forth in said articles of subscription." 2. That ho should pay over at the meeting of the said subscribers for the division of said lots, ¡t certain sum of money. 3. That the defendants should allow to the plaintiff, on the settlement for said lots, a certain sum as commissions. i&c. It then averred a performance on the part of the plaintiff in the words of the agreement. as set forth, and assigned, as a breach, the non-payment of the sum to be allowed as commissions. Upon general demurrer to this declaration, for the want of a sufficient statement of the cause of action, it was held to be sufficient, although liable, perhaps, to objections upon a special demurrer. Smith v. Wiswall. 2 Hall. 469. A demurrer tc a declaration containing several counts will not be sustained if either count is good. Cochran v Scott. 3 Wend. 229. Where there are several breaches assigned in one count, some good and some bad. and there is a demurrer to tlie whole count, tlm plaintiff will have judgment. The defendant should demur to the defective portions of the count. Glover v. Tuck. 24 Wdnd. 153. Where in a contract relative to the transportation of merchandise on the canal, the dangers of ranal navigation are excepted out of a warranty for delivery by a specific time, a plea generally alleging such dangers, without specifying them as an excuse for non-performance, is not sufficient on special demurrer. Woodworth v. McBride. 3 Wend. 227. Where a pl»a is an answer to but a part of the declaration, the plaintiff must demur, and doing so. lie shall have judgment. Hickok v. Coates. 2 Wend. 419. Where a plaintiff sets up title by purchase to personal property, claimed under a dormant execution, it is not necessary for him to aver on his replication the time or place of purchase, nor the time when directions were given to suspend proceedings under the execution, nor that such directions were given to defraud, nor is it necessary to set forth the consideration paid: and the omission in the pleadings to set forth these particulars cannot be taken advantage of, even by special demurrer. Id. A rejoinder averring that the defendant has assets, but not more than sufficient to pay and satisfy a judgment of upward of $1,000, is not a departure in pleading from a plea of plene administravit printer, averring the goods unadministered to be of the value of only $1. So held, on demurrer. Burr v. Baldwin, Id. 580. The omission to make a profert of letters of administration is only cause for a special demurrer. Allison r. Wilkin. 1 Wend. 153. The want of profert of letters of administration can be taken advantage of only by special demurrer. Id. On a return to a mandamus, the relator may demur or traverse, but he cannot do both. A rule both to join in demurrer and reply, is irregular. People v. Yail. Id. 38. In an action by the Utica Insurance Company (incorporated by St. Sess. 39, c. 52), against the endorser of a promissory i-ote, he pleaded that the plaintiffs, contrary to the statute (Sess. 36, c. 71, § 2), subscribed to and became members of an association, institution or company, and became proprietors of a bank or fund, for the purpose of issuing notes, receiving deposits, making discounts, and transacting all other business which incorporated banks may and do transact by virtue of their respective acts of incorporation: that for this purpose they established an office or banking-house, and issued notes, received deposits. and made discounts, as incorporated banks may, &c.: and averred that the note in question was made for the purpose of being, and was discounted at their office, they knowing for what purpose it was made. The plaintiffs replied the net constituting them a corporation, which authorized them to loan their surplus funds: and alleged that they lent a nart of their surplus funds on the security of tlie note, showing the particulars: without this. That the plaintiffs had subscribed and become members of an association, &e. fas in tlie plea), for the purpose in the plea set forth, concluding with a verification. Special demurrer, assigning for cause, that the plaintiffs had not, in their replication, confessed and avoided. traversed, or denied that they illegally and corruptly established an office or banking-house, and issued notes, received deposits, and made discounts as stated in the plea. Held, that the plaintiffs were entitled to judgment upon the demurrer. Utica Ins. Co. v. Scott. 8 Cow. 709. In slander for charging the plaintiff with perjury, tlie defendant pleaded that the words spoken in reference to certain parts of the plaintiff’s testimony were so understood by the hearers. Replication de injuria, Szc. On demurrer to the replication: held, that the plea would have been bad as amounting to the general issue, on special demurrer; but this could not be objected on an issue in law ifpon the replication. Allen v. Crofoot, 7 Cow. 46. A plea containing matter of fact and matter of record may conclude to the country; de injuria. &c., is a good answer to matter of excuse set up in a plea. Id. A plea in trespass qnaro clausum fregit. that a third person was seized in lee. and demised to the defendant for years, without giving express color, amounts to the general issue; and is bad oil special demurrer. Collet v. Fiinn. 5 Cow. 466. A strong conclusion of a plea in bar. can be taken advantage of only by special demurrer. Terboss v. Williams, Id. 407. Color in pleading, form and use of. Id. 467. 468. note a. A frivolous demurrer is in fraud of the ninth rule of April term. 1796, declaring a cause at issue after twenty days, &c.. and though served within the time, will not bp cause for setting aside an inquest. Carey r. Ilanchet. 1 Cow. 154. Where a sheriff was sued for taking insufficient pledges in an action of replevin, and for taking no pledges, and there was a demuner to one of the counts in the declaration and issue joined on the other counts; and a judgment was given for the defendant on the demurrer, and a verdict found for him on the issue, on which judgment was rendered; held, that the defendant was entitled to a writ of inquiry of damaget, as he had sustained no damages in defence of his suit, except the costs. Gibbs y. Bull. 20 Johns. 212. Declaration in case against five defendants, and one of them not brought in court, the declaration was held bad on special demurrer, though it would be good after verdict. Mnmford v. Fitzhugh, 18 Johns. 457. If the plaintiff adds the similiter to his replication, the defendant may demur without striking it out. Bank of Auburn v. Aikin, Id. 137. Where the general issue is pleaded, and also a special plea, to which there is a replication, and a demurrer to the replication, and contingent damages are assessed at the trial of the general issue, and the demurrer is afterward argued, the court will not allow the defendant to amend his special plea; aliter, if the demurrer had been argued before the trial of the issue. Hallett v. Holmes, 18 Johns. 28. A misjoinder of counts is a fatal defect on demurrer. arrest of judgment or error. Cooper v. Bissell, 16 Johns. 146. A demurrer for misjoinder of counts must be to the whole declaration; the defect cannot be reached under a demurrer to particular counts. Ferris y. North American Fire Ins. Co., 1 Hill. 71. A demurrer is a plea; and the relator, or party prosecuting a writ of mandamus, may demur to the return of the writ. People v. Champion. 16 Johns. 61. On demurrer to plea or replication, the sufficiency of the declaration maybe attacked on the argument, although the general issue be also pleaded. Auburn & O. Canal- Co. v. Leitch, 4 Denio, 65. Where on a demurrer to a subsequent pleading, a party goes back to take advantage of a defect in a previous pleading, he can object only to such defects as are grounds of general demurrer. Comly v. Lockwood. 15 Johns. 188, 191. If there is a demurrer to the whole declaration, and one of the counts is bad, the count cannot be referred to for the purpose of helping out and aiding another count. Nelson v. Swan, 13 Johns. 483. Where the day of making a contract is immaterial, it is not ground of demurrer, that the contract is illegal by reason of its having been made on the day laid in the declaration. Amory v. McGregor. 12 Johns. 287. Where a plea contains distinct matters divisible in their nature, as separate and distinct demands, the plaintiff cannot demur generally to the whole, because a part is bad; but should demur as to the matters badly pleaded, and traverse the residue. Douglass v. Satterlee. 11 Johns. 16. So. where an executor or administrator defendant pleads outstanding judgments, some of which are well ■ pleaded, and others badly pleaded, the plaintiff should not demur to the whole plea, but only to such of the judgments as are not well pleaded, and should traverse the residue of the plea. Id. A special demurrer includes a general demurrer. Utica Ins. Co. v. Scott. 8 Cow. 709. A bill of exceptions and demurrer to evidence or special verdict may be taken in the same cause. Powell v. Waters, Id. 669. A challenge for principal cause may be demurred to. or issue may be taken upon it. Ex parte Vermilyea, 6 Cow. 555. When the facts are admitted and referred to the. court, this is in substance a demurrer,-and should be entered on the record as such. Id. The defendant pleads two distinct pleas, neither in itself good, though both together would be: the plaintiff can avail himself of the defect only by demurring. Shook v. Fulton. 4 Cow. 424. Of the replication and demurrer in quo warranto. Id. 148, note a. A reference will not be granted if there is a demurrer in a cause, which relates to the whole action, and is undetermined. Jansen v. Tappen, 3 Cow. 339. In a declaration against heirs, where it appears that only a part of them-are arrested in the suit, those who are may demur. Whitaker v. Young, 2 Cow. 569. In an action of covenant, a plaintiff is bound to aver enough to show with all reasonable certainty that he has been damaged. Thus, where G. agreed to sell a farm to A., containing 161 acres, and A. agreed to pay G. $26 per acre for all the land except the road running through the same, and covenanted to purchase in the premises, if they were sold under certain mortgages which were liens upon the land, and to advance sufficient to pay such mortgages; on the land being sold under the mortgages, and an action brought on the agreement, for the recovery of damages, it was hoiden on demurrer, that the declaration was defective for the want of an averment as to the quantity of land contained in the road, so as to enable the court to say that the plaintiff had sustained damage by the neglect or refusal of the defendant to purchase in the farm at the mortgage sale. Gould v. Allen, 1 Wend. 182. It is not ground for demurrer that consequential damages are laid in the declaration which do not legitimately result from the acts of all the defendants; and a demurrer to two counts cannot be sustained unless both are defective. Leland v. Tousey, 6 Hill, 328.</p> <p>NOTE B. The principle of an estoppel, as applicable to deeds, is to prevent circuity of action, and to compel parties to fulfill their contracts; thus a party asserting in a deed the existence of a particular fact, and thereby inducing another to contract with him. cannot by a denial of that fact compel the other party to seek redress against his bad faith by suit; but the court will decide upon the :’ghts of the parties, without subjecting them to the expense and delay of a new litigation—and this thev will do. not on the ground of concluding the party from showing the truth, but because the whole truth being shown, the justice of the cause is not changed. Id. M. having mortgaged premises in 1792, with a covenant of seizin, and the mortgage having been foreclosed: held, that the estate which thus came to .him by descent, enured by estoppel to the title deriven under the mortgage. Vanderheyden v. Crandall, 2 Denio. 9. In ejectment for dower against grantee of the husband by quit-claim, defendant is not estopped from showing that the husband was not seized of such estate as would entitle his widow to dower. The cases of Sherwood v. Vnndenburgh, 2 Hill. 303: Bowne v. Potter. 17 Wend. 164. and other similar cases, are overruled in this respect. Sparrow v. King-man, 1 Comst. [1 N. Y.| 242. The recital in a bond to A., that the obligee had sold and conveyed to the obligor certain lands, is not evidence of such conveyance where it is not shown that the bond was ever in possession of the obligee; but a recital by an obligor in a bond executed by him. that he had conveyed certain premises, is sufficient evidence of the fact of conveyance. Jackson v. Brooks, 8 Wend. 426. A party in possession of lands, claiming the same under a warranty deed from a stranger, is estopped from saying that he holds as a tenant in common with the plaintiff. Sigiar v. Van Riper, 10 Wend. 414. But when where he holds as a tenant in common, if he denies the plaintiff’s title when • possession is demanded, the plaintiff Is entitled to recover, such denial amounting to an ouster: a denial in terms is equivalent to an act amounting to a denial. Id. It seems, too, that such a demand may be made of a tenant in possession, though not the tenant of the freehold. Id. Recitals in a deed of land are evidence against the party making them, or any person claiming under him: they estop parties and privies: privies in blood, in estate, and in law. Jackson v. Park-hurst, 9 Wend. 209. A person entering into possession of land under a party thus bound by a recital, is a privy in law of such party, and is hound by whatever would conclude or affect him. Id. Re'citals in an ancient deed of land are not evidence against a stranger unless it be shown that the land or some part of it has been held under the deed. Schermerhorn v. Negus. 2 Hill, 335. Accordingly, where the plaintiff in ejectment, who claimed’as one of the devisees of S.. gave in evidence a deed executed by L., and others, nearly seventy years before the trial, which, after reciting that partition had been made of a tract of land before granted to thirteen persons by letters-patent, and that a part of the tract had since been sold to the grantors, purported to convey two lots of the part thus sold, including the land in question, to S. and one G.; and it was further shown that G. had subsequently released to S. all his interest in the two lots, but there was no evidence that any part of these lots had ever been possessed by L. and others, their grantees, and those claiming under them: held, that no title was shown in the plaintiff which would authorize a recovery: and this though there was proof that other lands, not .a part of the two lots, had been occupied under S.’s will. Id. A person entering under another, either as tenant or under an agreement to purchase, cannot dispute that title, while he continues'in possession, nor can he legally attorn to a stranger. Every one entering immediately or directly under such tenant stands in the same situation as the original tenant. Jackson v. Miller, 6 Wend. 228. Although the testator, at the time of the making of the will, had no legal estate in the premises, the grantees in the deed, and those claiming under them, are es-topped from setting up any title inconsistent with that conveyed thereby. Jackson v. Ireland, 3 Wend. 99. A partition deed operates as an es-toppel between the parties and persons claiming under them. Jackson v. Hasbrouck. 3 Johns. 331. A recital in a will is an estoppel to all claiming unde, the will. Denn v. Cornell, 3 Johns. Cas. 174. There, Lieutenant-Governor Golden, in 1775. made his will, and in it recited that he had conveyed to his son. David, his lands in Flushing, and he then devised his other estate to his sons’ and daughters, &c. Afterward, David’s estate was confiscated under the act of attainder, and the defendant in ejectment claimed under that confiscation, and deduced his title from the state. No deed of the Flushing estate, the laud in controversy, was proved from the father. and the heir-at-law sought to recover upon that ground. But the court held, that the recital in the will, that the testator had conveyed the estate to David, was an estoppel of the heir to deny that fact, and bound the estate. Id. So, where a party has given a deed with warranty of land, of which lie had not sufficient title, if enures to his grantee by way of estoppel: and this to avoid circuity of action. But a covenant of seizin, or what is equivalent, that the party had good right to convey, does not thus operate upon an after-acquired title. Jackson v. Wright. 14 Johns. 193: Whitlocke v. Mills. 13 Johns. 463. The general principle to be deduced from the cases is. that an instrument which legally creates an estoppel to a party undertaking to convey real estate, ho having nothing in the es-. tate at the time of the conveyance, but acquiring a title afterward by descent or by purchase, does in fact pass an interest and a title from the moment such estates come to the grantor. Jackson v. Murray. 12 Johns. 201. A deed by the grantor, who conveys with warranty, being at the time under contract to convey the land granted: held, that such deed was an estoppel as to him and all others claiming under him: and a conveyance made subsequently to the grantor, would enure to the benefit of the grantee. The former is estopped by his deed and covenant, to malm title to the land: and one claiming subsequently under the grantor was bound by the es-toppel. being privy in estate. Id. In such case, the covenant in the deed being one which runs with the land, the assignee of the grantor may avail himself of it. Id. The principle is. that the estoppel concludes the party from alleging the truth: and. therefore, a man who admits a fact or deed in general terms, either by reciting in a deed executed by him. or by acting under it. shall not be received to deny its existence. Sinclair v. Jackson, 8 Cow. 543. But when the truth appears from the same deed or record, which would otherwise work the estoppel, then the adverse party shall not be estopped to take advantage of the truth: for he cannot be es-topped to allege the truth when it appears on record. Thus, where the deed of grant and release, containing tiie recital in question, was endorsed on the release and referred to it: and the terms of the recital were, that he, (C.) was the owner for his life, of the premises described in the within indenture of lease, and in and by the same demised and leased to G. S., within named, and was justly and lawfully entitled to the yearly rent by the within indenture of lease; held, that this recital of the lease and reference to it made it part of the deed of grant and lease, as fully as if it had been recited at large and incorporated therein. Id. A party, admitting the title to land to be in another, and agreeing to purchase, is es-topped from setting up title in himself under a deed which he had held for six years previous to such admission: and such estoppel extends to all claiming under him. Sayles v. Smith. 12 Wend. 57. But where the defendant, when he made the admission of the plaintiff’s title made no claim himself to the lot, but there were conflicting claimants. and after agreeing to purchase of the plaintiff, he became satisfied that the other claimant had the belter title, and purchased of him; held, that he might deny such title, and set up title in himself, if the acknowledgment of the plaintiff’s title was produced by imposition, or made under a misapprehension of the rights of the respective parties. Jackson v. Spear, 7 Wend-401: Jackson v. Cuerden. 2 Johns. Cas. 353-If. however, he has entered into possession under an agreement to purchase, he will be es-topped from disputing the title of him under whom he entered, until after a surrender of the possession. Id. One in possession of lands under a devise in fee to himself, purchased and took a deed from another who pretended to have an adverse title; held, that neither the grantee nor-his successors were estopped from disputing the-validity of the title thus purchased. Osterhout v. Shoemaker. 3 Hill, 513. The principle of the rule by which a tenant is estopped from questioning the title of his landlord, does not apply as between a grantee in fee-simple and his grantor. Id. There is no such estoppel except where the occupant is under an obligation, express or implied, to restore the possession at some time or in-some event. Id. The doctrine that in dower, the grantee of the husband is estopped to deny that his grantor had title, ought not to be extended. Id. By the common law the widow of an alien husband could not be endowed; but by Rev. St. 740. § 2, the widow of an alien, who at the time of his death was entitled by law to hold land, if she be an inhabitant of this state at that time, shall be endowed of such estate in the-same manner as if her husband had been a native citizen. And where the defendant derives his title from, and holds the premises under the husband of the plaintiff: held, that a tenant or defendant in such condition is estopped from denying the seizin of the husband, although there-was no statute in existence at the time the husband purchased, nor was such purchase affirmed by any subsequent statute. Davis v. Darrow. 12' Wend. 65. So where a tenant for life or years made a feoffment in fee and died, and his wife-brought dower against the- feoffee: held, that he-could plead that the husband was not seized. Hitchcock v. Harrington. 6 Johns. 290. Where-the plaintiff gave in evidence a deed from V. and his wife of the lands in question with covenant and warranty: and the defendant proved title-in a third person by virtue of a judgment. &c., against V. and her late husband; held, that she-was not estopped by the deed executed with her husband to the lessors of the plaintiff. Jackson, v. Vanderheyden, 17 Johns. 167. Grantee in fee by quit-claim deed, or deed with warranty, is not estopped from denying that the grantor had title, at or before the date of the deed: he holds adversely to tt.e grantor, and may controvert the-title, and fortify his own by purchase of any other title which will secure him in quiet enjoyment of the premises. Averill v. Wilson, 4 Barb. 180. The mere taking of a quit claim deed does not estop the grantee from questioning the title of his-grantor: but the rule is different as between vendor and vendee before conveyance; and between, landlord and tenant: in such cases possession, must be surrendered before title can be questioned, and there can be no estoppel unless the occupant is bound at some time, or in some event, to restore possession. Hill v. Hill. 4 Barb. 419. Where the lessor of the plaintiff and the defendant claimed by the same title. The plaintiff produced a lease on which there was an assignment written from P. to B. The judge admitted the assignment without proof on the ground that B. had reassigned at a subsequent date to P., which was also endorsed: and P. conveyed to J. and the lessors of the plaintiff: held, that the acceptance of the reassignment endorsed on the same paper that contained the assignment, was an explicit acknowledgment of the authenticity and genuineness of the latter P., or those claiming under him, therefore, cannot be permitted to-deny the execution. Jackson v. Halstead, 5 Cow. 216; Jackson Kingsley. 17 Johns. 158. A person cannot gainsay a title as against a plaintiff who claims under the same title by a prior-right. Jackson v. Ayers, 14 Johns. 224. Where-one enters on land under a contract to purchase, but neglects to pay the consideration money, he and those claiming under him are estopped to. question the title of the vendor, or his heirs; though more than twenty years have elapsed from the time when the last payment became due: though the vendee and those claiming under him have made permanent and valuable improvements, defended several actions of ejectment, and not been called on by the vendor to pay; and have even acquired title by conveyance from a third person. Jackson v. Hotchkiss. 6 Cow. 401. The form of pleading an estoppel is, to rely on the deed as an estoppel, and pray judgment that the party may be estopped, or not admitted to deny the facts which the deed purports, without demanding judgment si actio, &c. Davis v. Tyler, 18 Johns. 490. Estoppel may be by matter in pais as well as by matter of record; as by accepting an estate, making partition. &c. Springstein v. Sehermerliorn. 12 Johns. 357. So. if a man take a lease of his own land, he is estopped from setting up his original title. And whether he takes a new lease to himself, or directs in writing, under seal, that his land lord should give new leases to his brothers, for the premises, he is equally estopped from asserting any claim in opposition to the new leases. No title, not in esse, will pass by deed as bargain and sale unless it contain a warranty, in which case it will operate as an es-toppel. Jackson v. Wright, 14 Johns. 193. Where a person in possession of land covenants with another to pay him for the land, and receive a deed from him. in an action of ejectment by the covenantee he will be estopped from setting up an outstanding title, unless he shows he was imposed upon in making the agreement. Jackson v. Ayers, 14 Johns. 224. Where a person has conveyed land, he will not be permitted afterward to claim it in opposition to his own deed, although the deed may not amount to an estoppel. Jackson v. Stevens, 16 Johns. 110. It was decided that a man shall never be permitted to claim in opposition to his deed, by alleging he had no estate in the premises; and that if a man make a lease of land by indenture, which is not his. or levies a fine of an estate not vested, and he afterward purchase land, he shall, notwithstanding. be bound by his deed, and not be permitted to say that he had nothing. Jackson v. Bull, 1 Johns. Cas. 90; Jackson v. Murray, 12 Johns. 201.</p>

<p>This was the case of an appeal from the decree of the district court [of the United States for the district of] Massachusetts, rendered in a suit in admiralty, brought to recover the freight due on a bill of lading of thirty hogsheads of bacon, shipped on board of the schooner Rolla, belonging to the libellant [Henry T. Vernard], at New Orleans, in April, 1838, to be transported on board of the said schooner to Boston, and there to be delivered (the dangers of the seas only excepted) to the respondent. Sumner Hudson, or to his assigns; he or they paying freight for the said goods eight dollars per hogshead, with five per cent, primage and average accustomed. The bill of lading was in the common form, specifying the goods to be "thirty hogsheads bacon,” signed by the master, but with the further written statement, “contents unknown.” The schooner arrived at Boston, and there delivered to the consignee. It appeared from the evidence, that the freight to be paid was the common under-deck freight, and that the hogsheads were actually brought on deck—the ordinary freight of goods so brought varies 5-8ths from the under-deck freight. The defence set up in the answer was in substance, that the contract was, that the goods should be carried under deck; that damage had occurred to the goods by reason of their exposure on the deck on the passage; that one hogshead was lost or stolen on the passage; and that on the remainder, even if there were no damage, the only freight which could become due and payable, would be the common deck freight; and that the respondents, at the time of the receipt of the goods, protested against the conduct of the master in bringing the goods on deck, and gave notice, that he should hold the owners responsible for damages. Upon the hearing in the district court, a decree was entered for the libellant for full freight and primage, amounting to $243.60, deducting therefrom the loss of the one hogshead, amounting to $80, and also the damage to thirteen hogsheads, amounting to $65. and costs. [Case unreported.] From this decree the present appeal was taken.</p>

Bill in equity by the plaintiff for the due appropriation and security of a legacy left her by the last will and testament of her grandfather, Charles D’Wolf. The bill being taken pro confesso, by consent, the only question submitted by the parties was, what sort of decree the plaintiff, under the circumstances, was entitled to. The testator made his will, and afterwards annexed several codicils thereto.

<p>Case No. 16,923.</p> <p>Sale op Cargo bv Master—Charter.</p> <p>1. A bark sailed from Philadelphia with a cargo of corn, bound to Cork for orders. She met with heavy weather and put into Bermuda in distress, where, on the recommendation of surveyors, part of the cargo was discharged, being found to be heating, wet and damaged, and the vessel was repaired. While the cargo was being reloaded it was found to be again heating, and, a survey being called, the surveyors recommended that part of it be again discharged and cooled. While this was being clone the master went to Philadelphia and informed the underwriters and the shipper of the corn of the situation of affairs. Neither the underwriters nor the shipper gave him any instructions. The latter told him they had sold the corn to a London house whose name they gave to the interpreter who accompanied him, he being an Italian and speaking no English. The master sent no information to the London house, but returned to Bermuda. After his return to Bermuda another surrey was held, which reported the corn, as well that which was discharged as some 8,500 bushels still on bocrd, as being unfit to proceed on the voyage to Europe, and therefore recommended its sale. Previous to the sale the master made an agreement with one Gray, by which if Gray bought 10.000 bushels of the com the master was to carry it to New York, free of freight, but was to have half the profit arising on its sale in New York. The cargo was sold and Gray bought 11,000 bushels, including the 8.500 bushels which had never been discharged from the vessel, and the master carried it in the bark to New York. The master acted in what he did with the knowledge and concurrence ot the agent of the underwriters. The corn which was carried to New York arrived there in good shipping condition for Europe. It was sold there for four times what Gray paid for it. but for about 0 cents a bushel less than sound corn, and was immediately shipped to Europe by the purchaser. The London house, which had purchased the cargo from the shipper, filed a libel against the vessel for breach of the charter party under which the cargo had been shipped, in that the vessel had not proceeded to Cork for orders with the cargo. The owners of the vessel set up as a defence that the voyage nad been broken up by perils of the sea, and the condition of the cargo. Held, that the agreement made by the master with Gray was one which should subject his acts and motives to the closest scrutiny and throw upon him the burden of showing that it was made in entire good faith.</p> <p>2. The facts attending the condition and sale of the cargo in New York were not sufficient to overthrow the evidence that, when it was sold in Bermuda, it was not in a condition to be carried forward to Europe.</p> <p>3. The master was not bound under the circumstances of the case to have communicated with the owners of the cargo before selling.</p> <p>4. He was not authorized to bring the cargo to New York for account of its owners.</p> <p>5. The sale of the cargo by the master was justified under the circumstances, and that the libel must be dismissed.</p>

This was a bill in equity [by George W. Verselius, assignee in bankruptcy of Wil-lliam S. Verselius, against William S. Verse- ' lius and George A. Verselius] to set aside á conveyance of real estate and personal property, book accounts, dioses-in action, &c., and to compel an account of the same, and the proceeds thereof, and payment to the complainant, and for a discovery, &c. There was a demurrer to the bill, by the bankrupt, William S. Verselius. for want of equity.

<p>Case No. 16,937.</p> <p>Distribution of Individual Estate of a Partner—Different Firms.</p> <p>Bankrupts had been doing business in two different places under different firm names, and one firm appeared to be largely indebted to the other. The assignee in bankruptcy realized funds out of the individual estate of one of the partners; more than enough to pay his individual debts: Held, that the two firms were to be treated as one; that the proceeds of the separate estate, over and above the individual debts, were to be added to the joint stock; and that no notice was to be taken of the indebtedness of one firm to the other.</p> <p>[Cited in Re Williams, Case No. 17,707; U. S. v. Reid, 17 Fed. 49S.]</p> <p>[See Cases Nos. 16,928 and 16,929.]</p>

<p>Case No. 16,928.</p> <p>Bankruptcy—Appointment op Trustee.</p> <p>A resolution was adopted by three-fourths of the creditors, appointing a trustee. It appeared that each creditor who signed that resolution had received from the assignee in bankruptcy a dividend of 16 per cent, and had signed an agreement, under which the person named as trustee, was, as soon as three fourths in value of the creditors had signed it, to deposit in the hands of the assignee enough money to pay to each signer 19 per cent, more, and, the trustee being then appointed, the assignee was to convey the estate to the trustee, and to be discharged, and then to pay to each signer the 19 per cent., and that payment was to operate as an assignment of the claims of the signers to such person as the trustee should name. By an agreement made at the same time, between the trustee and the bankrupts, certain real estate conveyed by the sons of the bankrupts, and the wife of one of them, to a person named by the trustee, was to be sold, and its proceeds, with other moneys, were to be paid to the trustee; and the claims of the signers of the first instrument were to remain as security to the trustee for the moneys advanced by him, until those advances, and $12.500 as a compensation for his services, were reimbursed to him; and. after the bankruptcy proceedings were superseded, and the-trustee was so reimbursed, he was to convey to the bankrupts all that remained of the estate: Held, that the resolution appointing the trustee could not be approved.</p> <p>[For prior proceedings, see Cases Nos. 16,-926 and 16,927.</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was an appeal by an assignee in bankruptcy from the allowance by the district court of a claim in favor of the United States. [Goods had become forfeited for violation of the revenue laws, and the statute gave the United States an action to recover their value.

I, J. Davidson Burns, one of the registers of said court in bankruptcy, do hereby- certify that in the course of the proceedings in said cause before me, Latham Hull, a judgxhent creditor of the said bankrupt. [Jonathan W. Vickery], applied for leave to prove his judgment under the proceedings in bankruptcy, and produced a transcript from the docket of a justice of the peace, showing that on the 31st day of December, A. D. 1869, he, the said Hull, commenced suit against the…

<p>Case Ho. 16,932.</p> <p>Collision — Schooner and Steamer — Beating out Tack—Damages—Evidence of Value-Admiralty Appeals.</p> <p>1. Where a schooner was crossing the course of a steamer, towards the port side of the steamer, and the steamer starboarded her helm, held, that the steamer was in fault.</p> <p>[Cited in McWilliams v. The Vim, 12 Fed. 913.]</p> <p>2. Where a vessel is tacking in a river or a narrow channel, a vessel approaching her under the pressure of an obligation to avoid her, has, ui general, the right to assume that she will beat out her tack; but this assumption must yield to peculiar exigencies.</p> <p>3. Where a vessel is injured by a collision, and the sum expended to repair her is claimed as damages, it is not competent to show how much her cost was to her owner four years before, as evidence tending to prove that, at the time of the collision, she was not worth as much as such sum.</p> <p>4. Ir is not competent, on an appeal in admiralty, to ask this court to send the case back to the commissioner, on the ground that he rejected evidence offered before him. on the reference in the district court as to damages, where the question as to the rejection of such evidence was not raised in the district court.</p>

<p>Case Ho. 16,931.</p> <p>Collision in East River—Steamer and Lighter —Crowded River.</p> <p>1. A lighter, loaded with casks of oil. was beating dowii the East river, which was crowded with vessels, the wind being southwest, and the lighter being on her port tacit, and a steamer, coming up the river, saw the lighter before she came on that tack, and, on seeing her come about upon that tack, slowed her engine, and after-wards stopped it, but did not reverse it or change her course, and struck the lighter on the bluff of her port bow. Reid, that the fault of the collision was with the steamer, in plunging into the crowd of vessels, taking her chance of finding an opening through them.</p> <p>2. The lighter was entitled to keep her course, and did so, and did nothing to embarrass the steamer, and was not in fault.</p> <p>This decision was affirmed by the circuit court, on appeal. [Case No. 16,932.]</p>

This was a libel for a collision between the schooner Victor and the tug Clara, which, at the time of the collision, was towing the schooner through the Detroit river, having taken her at Port Huron, under an agreement to tow her to Lake Brie. While passing . Detroit, about midnight, the master of the tug made the green light of a propeller so near ahead that he decided to starboard his helm to pass her.

<p>Case No. 16,935.</p> <p>Discharge of Sureties — Change of Contract.</p> <p>Where A. and B. became sureties for the faithful performance by C. of a contract with D., by which C. was to- receive a salary, and the expenses of the business were to be borne by D.: Held, that the sureties were discharged by a subsequent alteration of the contract so-that C. was to pay the expenses and sell on commission.</p> <p>NOTE. See further that a principal can make no change in an agreement so as to bind his sureties, without their assent. Burt v. McFadden, 58 III. 479; Chapman v. McGrew, 20 Ill. 101. The undertaking of a surety is construed strictly; his liability will not be extended by implication. Myers v. First Nat. Bank, 78 Ill. 257; Reynolds v. Hall, 1 Scam. 35; Phillips v. Singer Manuf’g Co.. 88 Ill. 305; Millar v. Stewart, 9 Wheat. [22 U. S.] 680.</p>

Action of covenant on a bond for the performance of an agreement in the penal sum of $1,000. The breach assigned in the narr. and in the affidavit of claim amounted to $141.52, but the damages laid in the narr. were 81,000. The defendant pleaded to the jurisdiction that the amount involved did not exceed $500. The plaintiff demurred.

<p>Case No. 16,937.</p> <p>Costs in ADMiRAi.Tr—Suit for Wages—Settlement out op Court—Set-Off.</p> <p>1. In a suit brought by a seaman for wages, a court of admiralty will not allow an out-door settlement, without the concurrence or knowledge of the libellant’s proctor, to bar his claim for costs.</p> <p>[Cited in Peterson v. Watson, Case No. 11,037; The Ontonagon, 19 Fed. 800.]</p> <p>2. The action may be pursued after such settlement, for the purpose of determining the right to costs; and the court will, to that end, inquire into the fairness of the settlement with the seaman.</p> <p>3. Costs unnecessarily created by side issues on that investigation, will be decreed against the libellant, and may be set off against those allowed him upon the main issue.</p> <p>4. Where, in a suit in rem for wages, an answer to the libel on the merits was filed, and issue was joined, and afterwards a supplemental answer was filed, alleging a settlement, to which the libellant replied, alleging fraud in the settlement, and noticed the cause for hearing upon that issue, and it appeared that there was a good cause of action for more than the amount paid on the settlement, the costs upon the main issue were decreed to the libellant, and the claimant was allowed to set off the costs created by the new issue.</p>

<p>Case No. 16,938.</p> <p>Prize—Marshal’s Fees—Distribution op Prize Monet—Salvase—Cotton as Prize— Internal Revenue Taxes.</p> <p>1. When a vessel is taken by the secretary of the navy under Uie act of 1863 [12 Stat. 159], the marshal is not entitled to his fees as in the case of a sale, or to half commissions, as he is when the case is settled without a sale.</p> <p>2. Distribution among vessels engaged in a capture.</p> <p>3. Vessels which pick up enemy’s goods thrown overboard during a chase, are entitled to them as captors, and not as salvors.</p> <p>4. The claim of the wife of an officer of the prize to her private adventure rejected.</p> <p>5. Cotton captured as prize, and in the custody of the marshal, under a warrant from the prize court, is not liable to be proceeded against for the internal revenue tax while in his custody.</p>

This was an action of trespass to try title [against H. C. Wyche]. The case turned wholly upon questions of law.

A petition was filed in the district court by James Vila, setting forth that on March 11th he filed in this court a petition to be declared a bankrupt; that at the time of his bankruptcy he was seized and possessed of certain real estate and personal property, which was specifically set forth; that it would be for the benefit of the said estate, and of all parties having interest therein, that the same should be sold, transferred and assigned, inasmuch as it would be…

<p>Case No. 16,942.</p> <p>Bill of Lading — Delivery op Cargo — Pleading— Evidence.</p> <p>1. A ease of goods, being one of three specified in a bill of lading, was put over the ship’s side, upon the wharf, and placed on a truck belonging to the ship, and wheeled by an employee of the ship up the wharf to the door of a little house, in which the custom-house inspectors, who had charge of the discharging of the vessel, transacted their business, and there one of the inspectors marked it "P. S.” (which indicated that it was to be taken to a public store.) and it was then wheeled farther up the wharf, but what was done with it after that did not appear, although it was in the course of business for it to be deposited in a part of the wharf designated for such goods as were to go to a public store, but it could not be found when search was made for it half an'hour after, the wharf being exclusively occupied by the owners of the ship, and being enclosed on the inner end by a fence, access through which was had by gates. On a libel being filed against the ship for the non-delivery of the case according to the bill of lading: Held, that the facts did not constitute any delivery of the case on the wharf, or to the custom-house authorities, so as to exonerate the vessel from her liability under the bill of lading.</p> <p>[Cited in Unnevehr v. The Hindoo, 1 Fed. 030.]</p> <p>2. Where a libel was filed by the consignee named in a bill of lading, to recover damages for non-delivery of the goods, and the libel contained no averment that the libellant was the owner of the goods, and the answer set up that the goods were delivered, but did not allege that the libel-lant was not the owner of them, or contain any exception to the libel for not averring ownership in the libellant: Kchl. that, on these pleadings, the point that the libellant was not the real owner of the goods, must be taken as having been waived.</p> <p>3. The fact that the libellant, on October 24th, 1S67, on the entry of the goods at the customhouse, made oath that the goods then- belonged to a house in Switzerland, is not evidence to show that the libellant did not own the goods when the libel was filed, on December 27th, 1867.</p>

<p>Case No. 16,943.</p> <p>Collision in tiie Pout op New York — Vessel at Anchor in Channel—Lights—Lookout -Night-Glasses—Evi denoe.</p> <p>1.A bark, lying at anchor at night in the swash channel, in the entrance to the port of New York, wps sunk by being run into by a steamship entering the port. No light was seen on the bark by those on the steamship, and it was claimed that she had none. The steamer had two lookouts stationed forward, and her master and a lieutenant were on the bridge. Her second captain was forward also, and the pilot was also on deck. The night was clear. None of the officers used the night-glasses which they had, to examine the channel ahead of them. If they had they would have been able to see the bark, even without a light, sooner than she was seen: Held, that, on the evidence, it must be held that the light on the bark had become dim, so as not to be a good light.</p> <p>2. The failure of the officers of the steamer, under the circumstances of this case, to use a night-glass, was negligence.</p> <p>3. Both vessels were in fault, and the damages must be apportioned.</p> <p>4. The failure to call a witness whose duty it was to have charge of the light, warrants the inference that his evidence would have weakened the case of the bark in reference to the light.</p> <p>VINACKE (REEVES v.). See Case No. 11,-663</p>

<p>Case No. 16,945.</p> <p>Res Juihoata—Shipping—Cuartep.-Partv—Sea-worthiness—Burden of Proof—Evidence.</p> <p>1. When a former judgment is relied on as a defence in the admiralty, it should appear by the-record that the precise question or title set up-was passed upon in a former suit, not merely that it might iuwe been.</p> <p>2. For a ship to be seaworthy for the voyage, she must be manned by a competent master and crew.</p> <p>[Cited in Premuda v. Goepel, 23 Fed. 412; The-Giles Loring, 48 Fed. 470.]</p> <p>3. In a libel by the owners on a charter-party, for refusing to furnish a cargo on the pretence that the ship was unsea worthy, the burthen of' proving the seaworthiness is upon the owners.</p> <p>4. When the question of seaworthiness is in issue, evidence of the performance of voyages, immediately before or after that contemplated is inadmissible, except so far as they may offer just inferences as to her actual condition at the-time.</p> <p>NOTE [from 21 Law Rep. 616]. The cause was subsequently opened for a fourth hearing, upon an error of date as to the time when the new master was appointed, it having been, in fact, the 10th of February, and not the 10th of January, as stated in the opinion. Respondent’s counsel contended that seaworthiness required that a competent master should be on board all the time the vessel lay in port, and that the intemperance of the first master in port made the vessel unseaworthy, until the new master was appointed; and he claimed a deduction of thirty-one days from the demurrage. The counsel for libellant maintained that the master’s competency, as to seaworthiness, means only at the commencement 'of the voyage, and not in port, and that a competent mate being on board to receive cargo, no master or crew need be on board until the vessel sailed, and he cited McLanahan v. Union Ins. Co., 1 Pet. [26 U. S.] 184. cited in Curtis, 7, 520; Weir v. Aberdeen, 2 Barn. & Aid. 320; Fland. Shipp. 64; Abb. Shipp. 421. The judge, without giving an opinion upon the point raised, allowed demurrage for twenty-six days, and decree was entered for $1.515 damages and costs, for libellant; from which respondent claimed an appeal.</p>

<p>Case No. 16,940.</p> <p>Salvor op Vessel—Charge por Supplies.</p> <p>[The salvor of a vessel which is not derelict has no right, after the vessel has been brought into port, to provide supplies, and thereby charge the owner with the cost thereof, or create a lien upon the vessel.]</p>

This was a suit by the owners of the brig Martha and her cargo to recover the damages occasioned by a collision between her and the batk Vincenzo Perotto, which occurred on the night of May 2nd, 1876, about a hundred miles east of Cape Hatteras.

<p>Case No. 16,948.</p> <p>Bill of Lading—Damage to Cargo — Stowage— Peril of the Sea—Burden of Proof.</p> <p>A piece of marble statuary was shipped at Leghorn on board a bark, packed in a wooden case, to be carried to New York. It had been packed at Carrara, and brought to Leghorn in a lighter. A bill of lading was given for it by the bark acknowledging the. receipt of the ease in good order, “measurement and contents unknown.” and excepting perils of the seas. On the discharge of the case-at New York, it was externally in good condition, but a rattling was heard in it. and on opening it the statuary was found to be broken, and the bark wa- libelled for the damage. The case was proved to have been well stowed. The bark met with heavy weather on the passage: Held, that the burden was on the libellant to show that the statuary was in good condition when it was delivered to the bark; and that in the absence of such proof, and on the proof of good stowage of the case and of perils of the seas, the vessel was not liable for the damage.</p>

<p>[This was a bill in equity by John Vint against the heirs of Samuel King and of John Allen and Hannah, his wife, and others; also, three cross bills, brought, respectively, by Alexander Findley, Hannah Allen’s heirs, and Daniel Sheffey’s administrator and heirs, against John Vint and others.]</p>

<p>Case No. 16,951.</p> <p>Bankruptcy — Discharge — Consent op Creditors.</p> <p>Where the proceeds of a bankrupt’s assets exceeded the amount of the claims proved against his estate, but after the payment therefrom of costs and expenses the amount remaining may not equal fifty per centum of said claims, held, that the bankrupt was not entitled to a discharge under the amendatory act of July 27, 1868 [15 Stat. 227], unless the assent of a majority of his creditors, in number and in value, were shown.</p> <p>[Cited in Re Waggoner, 5 Fed. 917.]</p>

[Appeal from the district court of the United States for the district of Delaware.] This was a libel for salvage, by [Henry Yirden and others] the owners of the steam tug America, and came up on an appeal from the decree of the district court, awarding the sum of $050 to the libellants for salvage services to the brig Caroline and cargo [case unreported], and from which decree the libel-lants appealed, upon the ground of inadequate remuneration.

<p>Case No. 16,957.</p> <p>Salvage—Stranded Mississippi Steamer.</p> <p>1. Where a steamer, stranded in the Mississippi river, employs another less powerful one to assist in getting her off. it is the duty of the former to see that there are no obstacles or dangers in the place where the proposed movement is to be made.</p> <p>2. Where, by the joint efforts of both steamers, the stianded steamer is got off, the general direction and control of the movement being with her. she is liable for the loss of the other steamer. wrecked in the manoeuver, and also for the services rendered.</p> <p>3. The smaller steamer not having supplied the sole motive power, does not, under such circumstances, run the risks of salvage service.</p>

<p>Case No. 16,962.</p> <p>Criminal Law—Arrest of Judgment.</p> <p>If the information upon a by-law state that the penalty accrued to the commonwealth, when, by charter, it accrued to the town, the judgment must be arrested.</p>

Information for retailing liquors, &e. The witness, Michael Stieber, testified that he bought liquor of the defendant [Robert Gordon] about three weeks before he gave evidence to the grand jury who found the presentment upon which this information was filed; and that he never gave evidence before them against the defendant but once. offered to prove the time of his being sworn to the grand jury by the record of the presentment, which states it to be made on the information…

Information [against John Smith] for keeping a slaughter-house in Alexandria contrary to a by-law of this corporation. moved for leave to amend the information, by stating the penalty to accrue to the town of Alexandria, instead of the commonwealth. He stated it to be every day’s practice, and cited 2 Hawk.

Information [against John Smith] for keeping a slaughter-house within the limits of the town of Alexandria, contrary to a by-law of the corporation passed in 1784. The place where the slaughter-house was kept was not within the limits of the town at the time of passing the bylaw, but was added to the town by an act of assembly of Virginia in 1797. contended that -when a new part is added- to a town it becomes subject to all the existing laws of that town.

[This was a suit by the governor of Virginia, for the use of Loudon county, against Evans and others, his sureties.] Debt on a bond conditioned to perform covenants respecting the building of a bridge at the county charge, in the county of Loudon, in Virginia. objected to an inhabitant of Loudon county as a witness, on account of his interest. The witness is not directly interested, or if he has any interest it is too small, and remote. See Rex v. Carpenter. 2 Show. 47; Gilb.

<p>Information for keeping a slaughter-house within the limits of the town of Alexandria, contrary to the by-law of 1784.</p> <p>In the trial of Virginia v. Smith [Case No. 16,967], yesterday, for the like offence, the court decided that this by-law was in force in the addition to the town made by the act of 1797.</p> <p>after informing the jury that they were constitutional judges of the law as well as of the fact in criminal cases, was proceeding to argue the same point of law before the jury, when</p>

Debt on sheriff’s bond; plea, conditions performed; replication, that on the 5th of May, 1800, one Bedinger, clerk of Berkley county, put into Turner’s hands, to be collected and accounted for according to law, tickets of fees due to Bedinger as clerk amounting to $175 and 32 cents, for which fees Turner was bound to have accounted before the first of September ensuing, and to have paid over to Bedinger, which he did not do.

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

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

<p>Case No. 16,975.</p> <p>COLI.ISION' OFF THE JERSEY Coast—SCHOON'ER AND Steamer—Improper Change of Course — Failure to Stop.</p> <p>1. A schooner, coming up the Jersey coast towards New York, came up into the wind and hove her lead, on seeing a light which proved to be the masthead light of the steamer Virgo coming down; the schooner thus showed a red light to the steamer and the steamer ported her helm to go astern of the schooner. The schooner then filled away again, directly across the new course of the steamer and a collision resulted. Held, that the schooner was in fault, no necessity for heaving the lead or changing her course, when the steamer was approaching, being shown.</p> <p>2. The steamer was not in fault for not stopping when the schooner changed her course, the responsibility of stopping or going ahead being forced upon her by the false manoeuvre of the schooner.</p> <p>[Cited in The Iron Chief, 53 Fed. 511.]</p>

<p>Case No. 16,976.</p> <p>Admiralty Practice—Stipulation por Release — Insolvency op Stipulators — New Security.</p> <p>1. On a libel in rem, in the district court, against a vessel, the vessel was there discharged, on a stipulation for value. The libel was dismissed, and an appeal was taken by the libellant to this court. Thereafter the stipulators for value became insolvent, and the libellant moved, in this court, that the claimant file new security for value: Held, that the motion must be granted, and that the court had the power to require the claimant to furnish new stipulators, and to enforce such requirement.</p> <p>[Cited in The City of Hartford, 11 Fed. 91.]</p> <p>2. The effect of the appeal was to leave the libellant with the same rights in respect to stipu-lators as if no decree had been rendered.</p> <p>3. The absence from the general admiralty rules of the supreme court, and from the rules of this court, of any provision for the case of insolvent stipulators in actions in rem, furnishes no reason for not affording.the relief sought.</p> <p>[Cited in Empresa Marítima a Vapory. North & South American Steam Nav. Co., 16 Fed. 505.]</p> <p>4. Part of the obligation which a claimant in an action in rem assumes when he receives at the hands of the court property in its custody, by substituting therefor personal security, by way of a stipulation for value, is to maintain his stipulation good, in the matter of the sureties. •</p> <p>[Cited in U. S. v. Ames. 99 U. S. 42: The City of Hartford, 11 Fed. 91: The Haytian Republic, 8 C. C. A. 182, 59 Fed. 478.]</p>

This was an application on the part of the claimants of the vessel, against which several libels had been filed, to recover amounts in all exceeding her value, to have the vessel discharged from all the claims, on their giving one stipulation in her value. The libellants claimed that the amount of the stipulation to be given should be equal to the value of the vessel and the freight.

<p>Case No. 16,978.</p> <p>Damage to Cargo—Uxseawortuiness—Evidence —Protest—Sorvey.</p> <p>1. A bark was loaded with sugar and molasses in Porto R'co, and lay in the harbor apparently right, but was found, one morning, to have seven feet of water in h ;r hold. Her cargo was' discharged, and she was re-caulked above her copper, and the cargo which had not been destroyed was re-shipped; and she brought it to New York, where libels were filed against her to recover for the loss and injury to the cargo. The defence was set up in the answers, that a heavy swell on the night in question had opened her seams, and broken the pipe which led to the water closet, and tubs admitted the water, so that the loss was occasioned by a peril of the sea. The witnesses for the bark, while they testified to the heavy rolling of the vessel, testified also that no water came in through the seams. Held, that this discrepancy between the answer and the evidence in behalf of the bark, together with the fact that the broken water-closet pipe was not discovered till after the arrival of the bark in New York, and that the protest made no mention of any heavy sea or heavy rolling of the ship, threw discredit upon the evidence of the rolling.</p> <p>2. When goods are lost by the vessel, on which they are shipped, springing a leak while at anchor in a harbor, the shipowner must show some stress of weather, or other circumstance, sufficient to account for such a leak in a vessel of ordinary strength.</p> <p>3. On the evidence, no such cause for the leak was shown in this case, and the leak was caused by the unseaworthy condition of the bark.</p> <p>4. The rules of evidence in courts of admiralty are not as stringent as in courts of common law.</p> <p>5. Where a copy of a protest was offered in evidence, without any proof of its correctness as a copy, but it was proved that a protest was made at the time and place where the copy purported to have been made, and that it was signed by the mate of the bark, and the mate, though called as a witness in court, was not asked in relation to the truth of the copy, and did not dispute it, held, that the copy was admissible in evidence.</p> <p>6. A copy of a survey, not purporting to have been made by anyone connected with the vessel, was excluded as evidence, no witness able to prove or disprove its correctness being called, or shown to be within reach.</p> <p>[See Case No. 16,977.[</p>

<p>[This was a suit by William R. Voce against G. Lawrence.]</p>

In this case, founded on essentially the same state of facts and tried at the same time [with Sawyer v. Hoag, Case No. 12,-400], Rosenthal & Pence, for assignee, cited the following authorities: Curran v. Arkansas, 15 How. [56 U. S.] 304; Wood v. Dum-mer [Case No. 17,944]; Hightower v. Thornton, 8 Ga. 493; Nathan v. Whitlock, 3 Edw.

<p>[In the matter of Henry C. Vogel and Thomas A. Reynolds, alleged bankrupts.]</p>

<p>Case No. 16,982.</p> <p>Bankruptcy— What Passes to Assignee —Re-plevin bt State Process—Duty op Creditor.</p> <p>1. Under the bankruptcy act of March 2d, 1867 (14 Stat. 517), all property of a bankrupt, in his actual possession at the time of the filing of the petition in bankruptcy, passes into the hands of the assignee the instant he is appointed.</p> <p>2. Where property that was in possession of a bankrupt when he filed his voluntary petition, and was embraced in the inventory to such petition, as property assignable under the act, was afterwards taken by process in replevin issued from, a state court, by a creditor who had sold it to the bankrupt, but claimed that, because of fraud, the title tc it had not passed, the process stating that the bankrupt claimed to have purchased the property, and the bankrupt was adjudged such, and an assignee was appointed, held, ‘ in a proceeding instituted by the assignee against the creditor, that the creditor must restore the property or its vaiue to the assignee, and that the proper remedy of the creditor was to apply to the district court for relief, or to institute a proper action against the assignee in the district court or in this court.</p> <p>[Cited in Be Ulrich, Case No. 14,328; Be Irving. Id. 7,073: Be Litchfield, 13 Fed. S66; Lehman v. Bosengarten, 23 Fed. 642. Followed in Moran v. Sturges, 154 U. S. 2, 14 Sup. Ct. 1029.]</p> <p>[Cited in Hanchett v. Waterbury, 115 Ill. 229, 32 N. E. 196.J</p> <p>[See Cases Nos. 16.083 and 16.984.]</p> <p>[See In re Gregg [Case No. 5.796]; Davis v. Anderson [Id. 3.023]; Stuart v. Hines [33 Iowa. 60]; Miller v. O’Brien [Case No. 9,586.]2</p>

<p>Case No. 16,983.</p> <p>Bankruptcy — Voluntary Proceedings — Property Vesting in Assignee—Replevin by Creditors.</p> <p>1. When a voluntary petitioner in bankruptcy files his petition in due form, he becomes eo instante a bankrupt, so far-as the property named in his inventory is concerned, and said property is in the custody of the bankruptcy court.</p> <p>[Cited in Re Askew, Case No. 585.]</p> <p>[Cited in brief in Weeks v. Prescott, 53 Vt. 69.]</p> <p>2. Where the sheriff executed processes in certain replevin suits instituted by creditors of such a bankrupt, and took property in his possession, and set forth in his inventory, and delivered the same to claimants, held, that the action of the sheriff was unauthorized, and claimants ordered to deliver the property to the assignees in bankruptcy: or, if the same 'had been sold, to pay the value thereof to the said assignees, and attachment to issue in default thereof.</p> <p>[Cited in Re Clark, Case No. 2.798; Re Lake, Id. 7,992; Re Brinkman. Id. 1.884; Re Dele. Id. 3.965: Re Ulrich. Id. 14.328. Approved in Re Steadman. Id. 13.330. Cited in Re Hufnagel, Id. 6,837; Re Irving, Id. 7,073.]</p> <p>[Distinguished in Clifton v. Foster, 103 Mass. 235. Cited in brief in Leighton v. Harwood. Ill Mass. 69; Williams v. Merritt, 103 Mass. 187.J</p> <p>[See Cases Nos. 16,982 and 16,984.]</p>

<p>Case No. 16,985.</p> <p>Bankruptcy — Fraudulent Preferences — Confession of Judgment—Judgment Rotes.</p> <p>1. When a debtor confessed a judgment within four months previous to the filing of the petition against him. beinp*at the time insolvent, and the creditor having reason to believe him so, though there was. as a consideration, a pre-existing debt: Held, to be in fraud of the bankrupt act (of 1867 (14 Stat. 517)], being in the category of acts prohibited in section 35.</p> <p>[Cited in Haskell v. Ingalls, Case No. 6,193. Re Lord, Id. 8,503; Hall v. Wager, Id. 5,-951.]</p> <p>[Cited in Mathews v. Riggs (Me.) 13 Atl. 49.]</p> <p>2. The fact that the judgment -¡vas taken as a collateral for the security, aggregate of several other judgments, regular and valid, and to facilitate their collection, does not affect their validity.</p> <p>3. When one constituted attorney for the collection of a debt procured from the debtor a judgment note for the amount in his own name, and entered it. knowing that the debtor was insolvent, there being a clear intent to give a preference within the meaning of the act, though the fact of insolvency was not directly known to the real creditors, such knowledge is imputable to them and the judgment is invalid. '</p> <p>4. But where the note and warrant of attorney on which a judgment was founded, were given within four months before proceedings in bankruptcy, being the agreed security for a loan made at the time, and it conclusively appeared that the creditor had no reasonable cause to believe the debtor to be insolvent, though he knew him to he so at the time of entering the judgment, the judgment is valid.</p> <p>5. Where the debtors confided to one of their creditors the secret of their embarrassment and insolvency, for the purpose of protecting their surety, and better securing the collection of the debts by the prompt seizure of their property in execution, and the creditor in consequence of this information immediately issued execution: Held, to fall within the provisions of the 35th section of the bankrupt act, and that the assignee was entitled to the. property, or to the value of it.</p> <p>[See In re Campbell. Case No. 2.349. and Buchanan v. Smith, 16 W’all. (S3 U. S.) 277.]</p>

In bankruptcy. [I, the undersigned register in bankruptcy, certify that the following questions arose, and were agreed to by Wm. S. Ball, Esq., attorney for Elias A. Vogler, and Thomas J. Wilson, attorney for Henry W. Fries, Esq., assignee of the estate of said bankrupt: First.

<p>Case No. 16,987.</p> <p>Patents—Re-issue—Claim and Specifications— Removably Hinged Trunk Tray.</p> <p>1. The general principle in all re-issues is, that there can be nothing given in the re-issue which was not in the original specifications or drawings, although some minor amendments have been at times allowed.</p> <p>[Cited in Putnam v. Hutchinson, 12 Fed. 133.]</p> <p>2. The claim must be for something so described in the specifications that any person of ordinary mechanical skill, or sail! in the art cov.ered by the patent, can, from the specifications, make a mechanism which will contain the claim.</p> <p>3. The Plumer patent for a removably hinged trunk tray is an infringement upon the Vogier patent.</p> <p>The opinion of Judge Drummond in the Tuck Creaser Cases will be found in Fuller v. Yent-zer [Case No. 5,151.]</p>

<p>Case Mo. 16,988.</p> <p>Confiscation — Pleading — Parol Evidence — Contradicting Officer’s Returns.</p> <p>1. Assumpsit on a note for $1010, executed by-Robert Spaugh, Thomas Essex, and John Essex to the plaintiff. Plea, non-assumpsit. The defendants offered in evidence a record of the United States district court for tne district of Indiana, showing a confiscation proceeding and sentence against the plaintiff concerning a note described therein as a note of $1000. executed to him by Robert Spaugh and John Essex, and showing that the last-named note had been seized by the marshal under proper process, confiscated by the court, and sold on a venditioni exponas by the marshal. The defendants offered to prove by parol that the latter was the same note sued on in this action. And the plaintiff offered to prove by parol that the marshal’s return that he had seized the note was false; and that the charge against him of aiding and abetting the Rebellion, on which the sentence of confiscation is founded, was untrue. Held, that the plaintiff could not contradict the marshal’s return by parol evidence.</p> <p>2. The plaintiff could not contradict said record by proving that he never aided or abetted the Rebellion.</p> <p>3. Parol evidence was inadmissible to prove that the note confiscated is the same note on which this suit is founded.</p> <p>4. The said record of confiscation is conclusive upon the parties to this action as to all facts alleged in it</p> <p>5. Under the evidence in the case, the plaintiff was entitled to recover the amount of his note and interest.</p> <p>The case referred to as pending in the supreme court, and which holds that the marshal must take the note into his actual custody and control, is Pelham v. Rose, 9 Wall. [76 Ü. S.]</p>

<p>Case 1Tb. 16,989.</p> <p>Bankrüftct— Brokerage Business — Rights of Customers.</p> <p>If the bankrupts, in addition to their other business, carried on a brokerage business, for which they kept a separate account and a separate bank account, a party whose bonds were sold is entitled to payment m full, if the amount in the bank is more than sufficient to pay all claims against the brokerage department.</p>

This was a libel to recover damages to the-canal-boat Fred. Wood, caused by a collision, with the tugs Volunteer and Nichols, in the-harbor of Cleveland, on the 7th of October, A. D. 1868. [It appears from the evidence, that on that day, the tug Volunteer engaged to tow the canal boat from Clark’s dock up to the entrance of the Ohio canal; that in the progress-up the harbor and river, the tug Nichols came In sight, going down the river with a tow;, that at the proper time…

[Appeal from the district court of the United States for the district of Massachusetts.] Libel in rem for freight, brought by Ezra Weston, libellant, against the proceeds of the cargo of the schooner Volunteer, for freight asserted to be due to the libellant, as owner of the vessel, and earned under a charter-party made by the libellant with Messrs. Bixby, Valentine & Co. on a voyage from Bostou. (Massachusetts,) to Havana in the Island .of Cuba, and back, again to Boston.

[Appeal in admiralty from the district court of the United States for the Eastern district of Pennsylvania.] Lincoln & Co. were the lessees of a wharf on the Delaware, below Chestnut street, and proprietors of a line of Boston packets, that loaded and unloaded there. On a Saturday afternoon, 1847, one of their packets lying at the wharf, was covered by the Volusia, which lay alongside of her on the outside berth.

The present action is brought upon a judgment rendered September 20, 1808, in l'avor of the plaintiff and against the defendants in one of the state courts of Minnesota. That judgment was rendered upon a promissory note, dated St. Paul, Minnesota, December 17, 185(5, made by the defendants Banfiel & Rice, and indorsed to the plaintiff by the defendant Var-renne. This judgment is regular, and was obtained upon personal service.

In equity. Heard on sufficiency of plea in abatement. The plea was as follows: “Mary B. Blackman, sued herein in her representative and individual capacity, now comes into court for the sole purpose of objecting to the sufficiency and legality of the service of the process by which the complainant [Frederick Von Eoy] seeks to subject this defendant to the jurisdiction of this honorable court, and this defendant says that there has been no legal or sufficient service of the…

Voorhees filed a bill in chancery against Al-bright to restrain him from disposing of certain mortgaged chattels. After answer, an order was made requiring an inventory of the goods, and enjoining the defendant from reducing the stock below its value when mortgaged.

<p>Case Mo. 16,998.</p> <p>Customs Duties—Classification—Bristles.</p> <p>In the tariff acts, the article of bristles is separately classified, and is regarded as a different article from hair, and bristles are not included in the general words, "the hair of an animal.”</p> <p>[This was an action by Frederick W. Von Stade against Chester A. Arthur, collector of the port of New York, to recover duties paid under protest.]</p>

Tills was a bill in equity, brought by the plaintiff [James C. Voorhies], as assignee in bankruptcy of John N. Bonesteel, to obtain possession of certain personal property alleged to belong to the estate of the bankrupt, and to be distributable in bankruptcy.

<p>Case No. 17,002.</p> <p>Discharge op Bankrupts.</p> <p>[It rests in the sound discretion of the court to discharge a bankrupt, even where his application therefor was made more than a year from the adjudication of bankruptcy.]</p> <p>[Cited in Re Lowenstein. Case No. 8,573.]</p> <p>Cited in Re Wilmott [Case No. 17,778] N. D. N. Y.; Re Greenfield [Id. 5,775]; Re Martin [Id. 9.153]; and Re Canaday [Id. 2,377]; also, 2 N. B. R. 142.</p>

<p>Case No. 17,003.</p> <p>Jurisdiction or Federal Courts—Diverse Citizenship—Residence in District— Service op Process.</p> <p>1. Suit was brought, in the circuit court of the United States within the Southern district of Ohio, against the defendant by the plaintiffs, and the marshal of said district made a return to the writ that defendant was served personally. The declaration averred defendant to be a citizen of Ohio, and the plaintiffs citizens of Iowa, ffrirf. that it was not necessary, to give jurisdiction to the court, that the declaration should allege the defendant to be a resident of the Southern district of Ohio.</p> <p>2. A circuit court of the United States has jurisdiction, where the oarties are citizens of different states, without reference to the division of a state into districts.</p> <p>3. If the defendant is a citizen of the state, and process has been served in the proper district, the question of jurisdiction can not prevail.</p>

<p>Action on covenants of warranty and seizin, and defendant demurs to breaches.</p>

<p>Case No. 17,005.</p> <p>Affreightment—Bilí, of Lading—Loss of Cargo —Dei.ivert—Notice to Consignee.</p> <p>1. A bill of lading was signed by the master of a bark at Belfast, acknowledging to have received 220 tons of pig iron, to be delivered at the port of New York. About fifty tons of the iron was lost at New York, while the bark was discharging her cargo, by the breaking and sinking of the pile wharf or bridge upon which the iron had been improperly placed; and for this loss the bark was libeled in admiralty. Held, that the iron was lost before delivery to the consignees by the carrier, and that by the terms of the bill of lading the bark was liable for such loss.</p> <p>2. The liability of a carrier under a bill of lading continues until the merchandise is safely delivered to the consignee at the port of discharge, or placed in such a situation there as to be equivalent to a safe delivery, and the carrier is not discharged of the custody of the goods until this is done.</p> <p>[Cited in Kennedy v. Dodge, Case No. 7,701.]</p> <p>3. In regard to foreign voyages, under a bill of lading in the usual form, the carrier is not bound to make a personal delivery of the merchandise to the consignee, but it is sufficient if he lands it at the proper wharf, and in the ordinary manner, and gives reasonable notice to the consignee thereof. Such landing, with such notice, is equivalent to a personal delivery.</p> <p>[Upon an appeal to the circuit court, the decree of this court was affirmed. Case No. 17,-006.]</p>

[Appeal from the district court of the United States for the Southern district of New York.] This was a. libel in personam, filed in the district court, against Thomas Allen, owner of the barque Majestic, to recover damages for the non-delivery of a quantity of pig iron. After a decree by the district court in favor of the libellants [Case No. 17,005], the respondent appealed to this court.

[This was a bill by Francis Vose and others, trustees, against the Florida Railroad Company, to recover money alleged to be due to the sinking fund. Defendant demurred to the bill.]

In equity. On the 6th day of January, 1855, the legislature of Florida, by an act of that date, vested certain public lands, including all swamp and overflowed lands belonging to the state, in the governor, comptroller, treasurer, attorney general and register, as trustees, to constitute an internal improvement fund, and to serve amongst other things as a guaranty- of bonds to be issued by certain designated railroad companies for the purchase of iron rails and rolling stock.

<p>Case No. 17,009.</p> <p>New Trial—Practice—Verification of Motion —Affidavits — New Evidence — Court Kules—Waiver of Objections.</p> <p>1. Where a motion for new trial is founded on facts not within the knowledge of the presiding justice, and not appearing on his minutes, it must be verified by affidavit, unless compliance with that requirement is waived by the opposite party.</p> <p>. 2. No affidavit of merits is required where the motion is properly addressed to the minutes of the presiding justice, as where the motion is to set aside a verdict for error of ruling in the admission or rejection of evidence, or for refusing to instruct the jury as requested or for misdirection, or because the verdict was against law or against the evidence or the weight of the evidence.</p> <p>3. The theory in such cases is that all the matters of fact alleged are within the knowledge of the presiding justice, or may be verified by reference to his notes.</p> <p>4. Where the motion is founded upon alleged newly discovered evidence, or on the charge of misconduct by the opposite party or the jury in respect to the trial, it presents a preliminary question whether the facts are such as to make it the duty of the court to order notice to the opposite party and to direct how the proofs shall be taken.</p> <p>5. In all such cases the motion must be in writing, and must, unless the requirement is waived, be supported by affidavit.</p> <p>6. Affidavits of the witnesses to be examined cannot be considered a compliance with the twenty-second rule of the circuit court relating to motions for new trials based upon newly discovered evidence.</p> <p>7. The purpose of the rule is that the allegation of newly discovered evidence may be verified by the oath of the party or his attorney.</p> <p>8. Probable cause for the motion must be shown, unless waived, before the court can interfere and give notice to the other side or take any steps to prevent the prevailing party from applying for judgment on the verdict.</p> <p>9. Where the motion is properly verified by the affidavit of the party, ex parte affidavits of the witnesses are enough to warrant an application for notice to the opposite party.</p> <p>10. Such affidavits are not, without consent, admissible in the final hearing of the motion.</p> <p>11. For that purpose testimony may be taken in open court in civil or criminal cases, by depositions [in civil cases] as .provided by the acts of congress, or by interrogatories and cross-interrogatories, or, by consent, the court will, in its discretion, appoint a commissioner to take the testimony and report it to the court.</p> <p>12. In this case both parties had acquiesced in the taking of affidavits of the witnesses to be examined, and the court therefore looked into the affidavits as if they had been admitted by consent.</p> <p>13. The motion, however, was denied, first, because the evidence was not newly discovered within the legal meaning of the phrase; second, because -that which was offered was within the reach of the party moving, at the former trial, and was merely cumulative.</p> <p>14. Evidence offered, in order that the motion prevail, should afford a reasonable ground to conclude that it would be productive of a different result from the verdict once obtained.</p>

Bill in equity. The bill in substance was as follows;-—“Abigail G. Yose, of Boston, in said district, widow, in her capacity as ad-ministratrix of the goods and estate which were of Thomas Vose, late of said Boston, merchant, deceased, during his lifetime a citizen of the state of Massachusetts, brings this her bill against Maty J. Philbrook, of Winthrop, in the district of Maine, widow, in her capacity as administratrix of the goods and estate which were of Thomas…

At chambers. Application for an attachment, as for a contempt, and for the appointment of a receiver, on amended bill and answers of the several defendants and affidavits.

Trespass for breaking up a scow. THE COURT instructed the jury that if the defendant, knowing that Tuel committed a trespass in taking and breaking up a scow of the plaintiff, received from Tuel the timbers and planks of the scow, knowing them to be the property of the plaintiff, which had been so taken, he is answerable in this action, being equally, as guilty as Tuel. moved the court to instruct the jury, that if they should be of opinion that the defendant did not receive…

moved for an attachment against witnesses who reside in Virginia, within one hundred miles of this place, and who have been summoned and failed to attend. The process of attachment is of a criminal nature, and not devised merely to bring a witness into court. Hammond v. Stewart, 1 Strange, 510; Wyatt v. Winkworth, 2 Strange, 810; Smalt v. Whit-mill, Id. 1054; Chapman v. Pointon, Id. 1150.

Assumpsit by indorsee against his immediate indorser of a promissory note. 1st Plea: That at the time this suit was brought G. N. Lyles, the maker of the note, had in his hands goods and chattels more than enough to pay this debt. Replication, that the said G. N. Lyles was at that time insolvent.

<p>This was a suit in rem, on a contract. The libel did not set forth or allude to any writing, as containing the contract. The claimants of the vessel, before filing tlieir answer to the libel, moved that the libellants be ordered to produce, for their inspection, a certain letter written by the claimants’ agent to the libellants. This motion was in writing, and accompanied by an affidavit, setting forth that the contract on which the libellants rely was never reduced to writing, in a separate instrument, but was to be ascertained, among other sources, by a correspondence between the libellants and the agent of the claimants; that one letter of this correspondence was essential to the full understanding of the contract, and that this letter was in the libellants’ custody; that the claimants, had no copy of it. and no means of ascertaining its contents; and that they could not fully and truly answer the allegations of the libel, without an inspection of the letter. The motion was resisted.</p>

The jury were sworn, by consent of the parties, to try two actions; one for the recovery of a balance, agreed to be due on the 24th -Tune. 1792, by a stated account; and the other, for the amount of certain bills of exchange drawn by the defendant, accepted and paid by the intestate of plaintiff. The plea chiefly relied on was, that of a set-off, of 100,000 livres, which greatly exceeded the plaintiff’s demand.

[In bankruptcy. Application by W. C. H. Waddell, the general assignee of John H. Cos-ter, a bankrupt, to compel the receiver appointed in chancery at the suit of Charles A. Heekscher, a judgment creditor, in the state court, to deliver to such assignee the property and effects of the bankrupt in his hands.]

<p>Case No. 17,038.</p> <p>Vendor and Vendee — Trusts — Partnership Real Estate—Individual Equities.</p> <p>1. The vendor of an pstate. who has received the purchase money but retains the legal title, is a mere trustee for his vendee, and can avail himself of no act prejudicial to the trust.</p> <p>[Cited in Felch v. Hooper, 119 Mass. 57.]</p> <p>2. But. quiere. Where a mercantile firm sells real estate, and i °ceives the purchase money without making a conveyance of it to the purchaser, and several intermediate sales are made, and the last purchaser brings suit against the surviving partner to compel a conveyance of the legal title, will an individual equity acquired by the surviving partner against one of the intermediate purchasers, operate such an union in him of the legal and equitable titles as to give him a perfect title to the property to the extent of that equity, and thus prevent the court from decreeing that he shall convey the legal title to the last purchaser? The situation of the surviving partner, seeking to establish such an equity, would at least be delicate: _ he would. be required completely to show the fairness of his transactions, and he would not be permitted, as against the purchaser of the equitable title, to derive any advantage from speculation or from money actually advanced with notice of the equity of the purchaser.</p> <p>NOTE. As to. the light in which secret liens are regarded in equity, see Bailey v. Greenleaf. 7 Wheat. [20 U. S.] 46; Moore v. Holcombe. 3 Leigh. 604; Duval v. Bibb. 4 Hen. & M. 113. In Bailey v. Greenleaf [supra] in which there was an actual conveyance of the legal title, the court said, that the lien of the vendor for purchase money remaining unpaid, if in the nature of a trust, was a secret trust: and, although to be preferred to any other subsequent equai equity, unconnected with a legal advantage, or equitable advantage which gives a superior claim to the legal estate, will be postponed to a subsequent equal equity, connected with such advantage. They, therefore, refused to support the secret lien of the vendor, against a creditor of the purchaser, who was a mortgagee. It would seem a fortiori, that a secret equity, subsequently acquired, could not be sustained against a bona fide purchaser, without notice. See. also, 2 Rob. Prac. ISO-182.</p>

This action was brought to recover one-sixth part of the personal estate, of which the intestate died possessed; and many depositions were read, to prove the plaintiff, and five others, his brothers and sisters, being in England, to be the brothers and sisters of the intestate, of the half blood, and his next of kin.. The estate consisted of two bond debts, due to the intestate at his death, one of which had been paid, and part of the other.

<p>Case No. 17,029.</p>

This was a writ of entry for certain land situate in Orono, in the county of Penobscot.

<p>[This was an action by Winthrop M. Wads-worth, assignee in bankruptcy . of Robert R. Treadwell, against Edwin S. Tyler.]</p>

In admiralty. Libel in personam, for assault and battery committed by the master of a vessel upon a seaman while on duty at the wheel, on a voyage to Portland. Answer, that the violence used was reasonable chastisement for insolence and insubordination. It appeared at the hearing, that on October 18th the libellant [Alfred Wagener] was at the wheel, that the sea was rough, and that it was-almost a gale.

This cause comes before the court on the transcript of a record certified by the clerk of the supreme court of the state of Arkansas.

In this case a creditor filed specifications of objections to the bankrupt’s discharge, charging: First. That the bankrupt [Samuel D. I Waggoner] has not conformed to his duty. 1. In that he has omitted to make a proper statement of the judgments against him referred to in the schedules annexed to his petition. Also the same as to particulars and consideration of the debts owing by him. 2.

[This was an appeal by J. Z. A. Wagner from the refusal of the commissioner of patents to grant him a patent for an improvement in brick machines.]

<p>In admiralty. .</p>

<p>[Application of Michael Wahl for a writ of habeas corpus.]</p>

The prisoner [William S. Waight] was indicted in the criminal court for the county of Washington, District of Columbia, for obtaining money under false pretenses, and found guilty.

<p>Case No. 17,043.</p> <p>Suit by Bankrupt Assignee—Fraudulent Mortgage—Evidence.</p> <p>[1. A mortgage given by a firm is not fraudulent as to creditors because it in terms adopts a debt incurred by one of the partners in behalf of the firm, and includes that in the mortgage.]</p> <p>[2. If a mortgage given by a debtor is void under the state law, the property passes to the debtor’s assignee in bankruptcy.]</p> <p>[3. A mortgage of manufacturing property was given to secure a pre-existing debt, under an agreement that the mortgagors should remain in possession, and go on with the business, purchasing and working up the necessary materials, and should apply the proceeds'first to the expenses of the business, and then to the mortgage debt. The materials to be purchased were a substantial part of the resulting product, and there was no outward showing of a change of possession, nor anything to lead other creditors to suspect that the mortgagors were not working for themselves. Rekl, that the mortgage was void as to other creditors. as delaying them for the sajie of giving the mortgage creditor a possibility merely of payment out of the property.]</p>

In bankruptcy. This was a petition by joint creditors of Walter H. Waite and E. J. Crocker, lately partners, trading under the name of Waite alone, that they might be adjudged bankrupts, and was filed October 15, 1867.

<p>Case No. 17,045.</p> <p>Salvage—Rescue op Neutral Vessel prom Belligerent.</p> <p>Salvage is not due for rescuing the vessel of a neutral- out of the hands of a belligerent who took possession of her for a supposed breach of treaty or of the law of nations.</p>

The defendant ■ [J. D. Triblecock] gave his negotiable note, secured by mortgage, for twenty per cent, of stock subscribed in the Great Western Insurance Company, of Chicago—that being the cash payment required by the company. This note and mortgage were sold and assigned by the company to the complainant [Charles B. Waite], a citizen of Illinois, before due, and, as the court decided, for value.

<p>Case No. 17,048.</p> <p>Jurisdiction ix Bankruptcy—Composition Proceedings—Questions op Title.</p> <p>The bankrupt court has no jurisdiction, under its summary power to enforce compositions, to take cognizance of and determine questions of title between the debtor and persons not parties to the proceedings; so, where composition proceedings were instituted without an adjudication and the resolution by its terms provided that upon payment of the composition all the debtor’s property which he had before the commencement of the proceedings assigned for the benefit of his creditors should be restored to him, no suit having been brought to set aside such assignment, Held, that the court had no jurisdiction to compel the voluntary assignee to deliver the property to the debtor.</p>

Admiralty appeal from the district court of Maine, in a cause of collision. The schooner Pennsylvania sailed from Boston on the 25th of May, 1856, laden with a cargo of merchandise, and bound on a voyage to Bath. While beating up the Kenne-bec river, about six o’clock in the afternoon of the following day, and when she was within two miles of her place of destination, the master discovered the steamer Governor approaching in a southerly direction.

<p>Case No. 17,050.</p> <p>Boundaries—Consent and Acquiescence—Deeds —Description—Quit-claim by Person Dis-seized—Competency op Witnesses.</p> <p>1. Where a boundary is disputed between parties who own adjoining tracts of land, and they agree to erect a fence on what is supposed to be the true boundary, and the possession continues according to that line for twenty years, in the absence of all counter proof of any other actual boundary, that line ought to be deemed the true one, and to conclude persons claiming under them by subsequent conveyances.</p> <p>[Cited in Tolman v. Sparhawk. 5 Mete. (Mass.) 476; Abbott v. Abbott. 51 Me. 585; O’Donnell v. Penney, 17 R. I. 1.66, 20 Atl. 306.)</p> <p>2. Where A. owned the head lot No. 18, and sold to B. forty acres on the east end of that lot, and afterwards sold to C. by the following description; "a certain tract or parcel of land situate, &c. and contains thirty acres by measure.” being “the west part of the head lot No. 18,” it not being shown, that the parties at that time knew,' that the whole lot contained more than seventy acres, although in fact it did contain more; it was held, that the deed to C. conveyed all the land in the lot, not conveyed to B„ anil was not limited to thirty acres at the west end of the lot. There being actual boundary lines after-wards stated in the same deed, it was farther held, that those boundary lines must govern, even if they included more than thirty acres.</p> <p>[Cited in Eaton v. Rice. 8 N. H. 381; Orr v. Hadley, 36 N. H. 578.]</p> <p>3. Where a party is disseized, he cannot convey by a quitclaim deed his title to the premises of which he is disseized.</p> <p>4. Persons who do not believe in the existence of a God. or in a future state of existence, are not competent' witnesses.</p> <p>[Cited in Scott v. Hooper, 14 Yt. 539.]</p> <p>[Cited in Thurston v. Whitney, 2 Cush. 110.]</p>

This was an application by [David Wake-man] the petitioning creditor for a decree of bankruptcy against Rufus Hoyt, a manufacturer and vender, at his establishment in Fairfield county, and elsewhere, of carriages, sleighs, and other vehicles.

<p>Case No. 17,052.</p> <p>Fraudulent Conveyances — Prima Facie Evidence-Consideration.</p> <p>1. Conveyances executed, under whatever pre-tences, by an individual insolvent or unable to pay his debts, will be held prima facie void in the hands of the grantee against creditors, especially when the grantee has knowledge of the facts.</p> <p>[Cited in Pursel v. Armstrong, 37 Mich. 331.]</p> <p>2. Where the consideration passed from the grantor to the grantee, with the view of covering the property, by a conveyance to the wife of the grantor, it is a strong circumstance to show fraud.</p>

<p>Case No. 17,053.</p> <p>Shipping — Abduction op Minor by Master — Liability op Owners.</p> <p>[See Sherwood v. Hall. Case No. 12,777; Lus-com v. Osgood, Id. 8,608.]</p>

[Appeal from the district court of the United States for the district of Pennsylvania.] This is the case of a libel filed in the district court by the appellees, stating, that the brig Aurora, being in the year 1811 a't Port Jackson, In New South Wales, and being in want of necessaries for the prosecution of the residue of her voyage; none of her owners being there, O. Smith, the master, having no other means to obtain money to enable him to prosecute his voyage, borrowed of…

<p>[In the matter of Wald and Aehle, bankrupts.]</p>

This was a libel in rem, brought for the non-performance of a contract entered into with the master by a bill of lading. The libellant shipped at Bath, on board the schooner Waldo, bound for Atakapas in Louisiana, 141 barrels of potatoes, to be delivered at that port, at the freight of fifty cents a barrel, and consigned to T. H. Merrill, the master, who signed the bill of lading. It is in the common form and is dated Nov. 23, 1840.

<p>Case No. 17,057.</p> <p>Collision—Steamer and Sail—Rules op Navi-g ATI on.</p> <p>1. The navigation of sailing vessels, and those propelled by steam, applicable in cases of collision, is governed by this rule: The sailing vessel is to pursue her course; the duty of those managing the steam vessel being to so direct its course, or modify its speed, as to avoid a collision. It follows that a change of the sailing vessel, though made with the view of preventing a collision, is a mismanagement of the vessel.</p> <p>2. But this rule is not so imperative as to forbid a change in the course of the sailing vessel, should it be manifest that a collision cannot otherwise be prevented, or that such change is made because the danger of such collision is imminent and impending. In such circumstances, whether such change in the course of the sailing vessel tended to an avoidance of the collision or not. is not of legal importance.</p>

Ejectment [by Benjamin AYaldron and Sally Ann, his wife, and John L. AVilson, against Edward Chasteney] for premises in the city of New York.