Volume 5 — Federal Cases

Libel for breach of contract in failing to land a passenger ai the port to which he had taken passage. Libellant was the master of a vessel lying at Algonae, an intermediate port on the St. Clair river, between Detl-oit and Lake Huron. He had left his vessel, going up the river, and secured her a cargo, and on the 4th of July took passage on the Canadian, at Port Huron, paid his fare to Algonae, with the intention of stopping there and rejoining his vessel.

<p>Case No. 2,377.</p> <p>Bankruptcy — Discharge aftek a Year.</p> <p>1. A discharge may be granted to a bankrupt on an application made more than a year after the adjudication.</p> <p>[Cited in Re Watson, Case No. 17,273; Re Lowenstein, Id. 8,573.]</p> <p>2. The true construction of the 29th section gives the court a discretionary power, and, in a proper case, on explanation of the delay, a discharge will be granted.</p> <p>[Followed in Re Forsyth, 4 Fed. 630.]</p> <p>CANAL BOAT.</p> <p>[Note. Cases cited under this title will be found arranged in alphabetical order under the names of the boats; e. g. “The Canal Boat Ontario. See Ontario.”]</p>

In bankruptcy. Petition [by William Can-by, assignee in bankruptcy of John P. Mc-Lear & Son] to expunge proof of claim [of Amelia F. McLear]. Several questions of practice were raised and decided at the bearing, viz.; First.

Libel of information by the United States against the brig Candace, alleging that the master took on board at a port , in the Cape de Verd Islands, and brought to Boston eleven passengers, without providing them with the space required by St. 1855, c. 213, § 1 (10 St. 713).

<p>In bankruptcy. [In the matter of Philemon Canfield.] In this case the question was whether a petition by a debtor praying to be declared a bankrupt, could be received, notwithstanding a petition for a compulsory decree had already been filed, and an order of notice to show cause obtained thereon by a creditor against the same debtor.</p>

[In admiralty. Libel by 'William Can-field against Sheffield Reed and others, owners of the ship Alliion. for compensation and reimbursement for injuries sustained by the libelant, in consequence of exposure, while in the discharge of his duty as a seaman.]

[In equity. Bill by Thomas H. Canfield against the State National Bank of Minneapolis and the Minneapolis Agricultural & Mechanical Association, to establish an equity in stock and property of the defendant corporation the agricultural association.] In this cause a motion is made for an injunction, and is heard upon bill, and answer used by defendants as an affidavit, and a counter affidavit.

“To the Honourable Francis Hopkinson, Esquire. Judge of the Court of Admiralty of the State of Pennsylvania: “The bill of Manuel Sagas de Cañizares respectfully sheweth: That Donjuán Joseph de Aguire Perez, of the city of Cadiz, in the kingdom of old Spain, now resident in the city of Philadelphia, was and is owner of a certain brigantine called the Santissima Trinidad; and that Narisco Sanchez y Serna was commander of the said brigantine, being thereto properly authorized…

<p>On the petition of Margaret Matilda Cannon, an apprentice, to be discharged from her indentures on account of cruelty of her master [Thomas Davis].</p>

Admiralty appeal. The libel was brought by [John W. Cannon] the owner of the steamboat [Robert E.] Lee against the steamboat Potomac [James A. Batchelor and others, claimants], to recover damages for a collision which took place between the two boats on the Mississippi river, about one mile above Natchez, on the morning of December 21, 1870.

<p>Case No. 2,386a.</p> <p>Charter Party— Payment of Charter Money.</p>

[On April 20, 1S78, the Canon City & San Juan Railway Company filed its complaint against the Denver & Rio Grande Railroad Company to enjoin interference with the construction of the line of the former company through the Grand canon.

In admiralty. This was a libel in rein, for ■wages earned on board of the sloop Canton, ■of thirty-five tons, during the summer of 1S56.

<p>Case No. 2,389.</p> <p>Chattel Mortgage — Contemporaneous Agreement.</p> <p>A chattel mortgage was given by C., who was afterwards adjudged a bankrupt. The assignee in bankruptcy having sold the property, the mortgagee petitioned to be paid the proceeds, in satisfaction of the mortgage. It appeared, that an agreement was made, contemporaneous ■with the mortgage, that the mortgagor should retain possession of the mortgaged property, make sales of it from time to time as he might desire, and receive the proceeds for his own use. The debt for which the mortgage was given was an actual one, and unpaid: Held, that, under the laws of the state of New York, the mortgage was void, and the petition must be denied.</p> <p>[See In re Burrows, Case No. 2,204.]</p>

Motion to remand to the Cape Girardeau circuit court. This cause was instituted in the Cape Gi-rardeau circuit court, to declare a mortgage void, so far as the property' of the Cape Gi-rardeau and State Line R. R. is concerned, being a road-bed situate in the counties of Cape Girardeau, Bollinger and Stoddard; and to remove the cloud upon the title of said company occasioned by the mortgage.

<p>Case No. 2,391.</p> <p>Partnership — Fraudulent Aut of One Partner.</p> <p>1. A partner is bound by the act of his co-partner within the scope of the business of the firm, even if that act be fraudulent as between the partners.</p> <p>2. B.. a member of the firm of E. H. & Co., obtained from S.. the bankrupt, two notes made by S. to the order of E. H. & Co. and for their accommodation, and it was understood that the notes should be paid at maturity by E. H. & Co. The notes were obtained by B. without the knowledge of H.. his partner, and were indorsed with the firm name, and discounted at bank, and the proceeds used by B. for his own purposes in fraud of H. H. paid the notes at maturity, and proved them as a claim against the bankrupt estate due to him as an individual. Bchl, that H. was bound by the knowledge of his partner that no consideration, passed to S. for the notes, and by B.’s agreement that the firm would pay notes at maturity, and that the proof must be expunged.</p> <p>[Compare Babcock v. Stone, Case No. 701.]</p>

<p>Case No. 2,392.</p> <p>Following State Decision — Limitation oe Actions— GhUKCII SUBSCllIPTION — VALIDITY—CoN-SIDEIiATION.</p> <p>1. The construction given by the state courts to the state act of limitations recognized and enforced by the United States bankrupt court.</p> <p>2. The bankrupt having been a non-resident at the time the canse of action accrued, and it not appearing by the proof when he became a resident of the state, nor that he had resided more than three years in the state since the cause of action accrued, although the creditor was a corporation of another state, held, that the state act of- limitations could not be allowed as a defense to be set up by the assignee.</p> <p>3. A claim was proved by a church corporation, founded upon a verbal promise by the bankrupt to M., that he (the bankrupt) would pay eight hundred dollars if M. would subscribe a portion of the indebtedness due from the church to M., the promise being subsequently publicly announced by the bankrupt in the church, in the presence of the congregation; it appeared bv the proof that expenses had been incurred by the trustees of the church, upon the faith of the subscriptions generally, though not that anv definite expenditure was made'upon the faith of this particular subscription. Held, that the promise was founded on a good legal consideration, upon two alternative grounds: First, it was one of two mutual promises for the benefit of the church, each being the consideration for the other, and the claim provable by the beneficiary; and. secondly, that as a promise to the church, partly upon the faith of which expenses were incurred, it would sustain an action of assumpsit, and might be proved in bankruptcy.</p> <p>[Cited in Sturgis v. Colby, Case No. 13,574.]</p>

In admiralty. The vessel and cargo were taken for the use of the government on appraisal, at the place of capture, in the Gulf of Mexico, and the vessel was afterwards lost at sea. The vessel and cargo were con-fiscable under the act of July 13, 1861 (12 Stat. 225).

<p>Case No. 2,393.</p> <p>Salvaoe — Compensation-.</p> <p>A canal boat, which had been cast off from a tow and was adrift in Long Island Sound, was picked up by a boat’s crew of fifteen persons from Northport, and was libelled for salvage. The vessel was appraised and bonded at ■$400. Bchl, that such services to such boats in the sound ought to be encouraged; and the salvage was fixed at 50 per cent, of the stipulated value.</p>

This action was tried by the court, without the intervention of a jury.

<p>Case No. 2,396.</p> <p>Marine Insurance — Forfeiture for Nonpayment of Premium Note — Stranding of Vessel — Payment of Note — Subsequent Loss of Vessel in Gale.</p> <p>1. Where a note is given for the premium on an insurance policy containing the provision that if the note is not paid at maturity the policy becomes void while it remains overdue and unpaid, and after the dishonor of the note the vessel insured strands, whereupon the master has the note paid,, and afterwards a gale comes up and the vessel is lost, the insurer is not liable.</p> <p>2. Though the weather was fair at the time of the stranding, and continued so until after the note was actually paid, yet the proximate cause of the loss was the stranding of the vessel, and under these facts the policy was not revived.</p>

On the 29th of August, 1S54, letters-patent [No. 11,G0S] were granted to Daniel Hayward. since deceased, for certain new and useful improvements in the manufacture and in the process of manufacturing vulcanized rubber, for the term of fourteen years, and on the 2Stli of August. 1SG8. the letters-patent were extended in the name of [Caleb Swan] the executor of the patentee for the further term of seven years from the expiration of the original term of the letters-patent.

Bill in equity to restrain alleged infringement of reissued letters-parent [No. 11.G9S], originally granted David Hayward, August 29, 1834, for an improvement in the manufacture of india-rubber, and extended for the further term of seven years; and for an account.

<p>Case No. 2,399.</p> <p>Delivery op Cargo — Bill of Lading — Breakage.</p> <p>1. A ship received on board, in Havre, a number oí millstones to be carried to Now York, under a bill of lading containing the clause “not accountable for breakage.” On .the delivery of the stones, four were found to be broken, and two others never came to the possession of the consignees, who brought this action against the owners of the ship to recover the value of the six stones: Held, That it was incumbent on the owners of the ship, at least, to show that the two missing stones were discharged upon the wharf and placed with the others in that part of it which had been selected for the deposit of the libellant’s goods.</p> <p>2. As the respondents had not furnished such proof, they were liable for the value of the missing stones.</p> <p>3. It was not made to appear that there was any negligence in stowing or landing the stones, and, under the bill of lading, the respondents were not liable for breakage not shown to have arisen from negligence.</p> <p>[See note at end of case.]</p> <p>[NOTE. That an exception in the bill of lading from liability for breakage exempts the vessel from loss by breakage not caused by negligence, see Six Hundred and Thirty Casks of Sherry. Case No. 12,91S; The' Delhi, Id. 3.770: Wilson v. National Steamship Co., Id. 10,112; The Pereire, Id. 10.979; Hus v. Ivempf, Id. 6,913. And see. also. Nelson v. Woodruff, 1 Black (06 IJ. S.l 156; Clark v. Barnwell, 12 How. (33 U. S.) 272.]</p>

<p>Case No. 2,400.</p> <p>Copyright — Act of 1S31 — Resident.</p> <p>[An officer of the British navy, — traveling through the United States, and considering himself a British subject, — during his stay, filed a declaration of intention to become a citizen. It appeared that, at a time when trouble with Canada seemed imminent, he had offered his services to the province. Ecld, that he was not a resident of the United States, within the meaning of the copyright, act of 1831.]</p> <p>[See Iveene v. Wheatley, Case No. 7,644; Boucicault v. Wood, Id. 1,693.]</p>

[In admiralty. Libel by Carey and others against the schooner Kitty and her owners. [For decision as to the liability of the owners see next preceding ease, No. 2,401.]

At law. Trial of an action upon a promissory note. This was an action by the assignee in bankruptcy of the Milwaukee Insurance Co., to recover the amount of a note made by tlie defendants to the company for a policy I No. 25,502, dated May 28, 1SGS]2 for two liun-dred and forty dollars, payable in stuns of sixty dollars on the first day of May annually for four years, without interest until due. and in case default should be made in the payment of any of the installments,…

<p>Case No. 2,405.</p> <p>Freight — Dbuveut—Lien.</p> <p>A vessel brought a cargo of brimstone from Palermo to New York under a charter which contained no clause binding the goods to the ship and the ship to the goods. On arrival at New York, the cargo was delivered unconditionally, and without any understanding that it should be subject to a lien for the charter-money. But. after such delivery, the owners of the ship filed a libel against the cargo to recover the amount of the charter-money, for which they claimed to have a lien enforceable against toe cargo. He!it, that the lien of the vessel on the cargo for her freight was lost by the delivery and could not be enforced.</p> <p>[See note at end of case.]</p> <p>[NOTE. The lien of a carrier for freight arises from the right to retain possession until the freight is paid, and is lost by an unconditional delivery. Sears v. Wills. 1 Black (66 U. S.) 108; Duncan v. Kimball, 3 Wall. (70 U. S.) 37; One Hundred and Eighteen Sticks of Timber, Case No. 10,519; The Volunteer, Id. 16,999; Certain Logs of Mahogany, Id. 2,559; Ruggles v. Bucknor, Id. 12.115: Raymond v. Tyson, 17 How. (58 U. S.) 53; Perkins v. Hill. Case No. 10,987; Eames v. Cavaroc, Id. 4,238.]</p>

<p>Case No. 2,406.</p> <p>Charter Party — Authority of Agent to Change — Freí g ht — Dem drrage.</p> <p>1. Where a charter-party for a voyage from New York to Gibraltar and Malaga and back, provided for the carrying of any lawful cargo, and for the payment of one-half of the freight on the discharge of the outward cargo, and of the other half on the discharge of the homeward cargo, and, there being no fruit to load with at Malaga, the vessel took a homeward cargo of salt at Gibraltar, under an arrangement made between the master and the agent of the charterers, at Malaga, that the salt should be discharged at New York in three days’ time, the usual time for discharging a cargo of fruit: Held, that the agent at Malaga had no power to change the terms and condition of the charter-party.</p> <p>2. Held, also, that, as the charter-party contained no provision as to the discharge of the homeward cargo other than that dispatch should be used, and as the usual time for unloading a cargo of salt at New York was fifteen days. Sundays and rainy days excepted, no right of action for the homeward freight, and no claim for demurrage of the vessel, could exist till the ■expiration of the fifteen days.</p> <p>[3. Cited in Fourteen Horses, etc., Case No. 4,990. to the point that freight is not due until the discharge of the cargo, for until such discharge the voyage is not completed, nor is the ship’s contract fully performed.]</p> <p>[See The Tangier, 32 Fed. 230; Simpson v. One Hundred and Eleven Sticks of Hewn Timber, 7 Fed. 243.]</p>

In admiralty. This was a libel for what is technically called, in the admiralty, a cause of damage.

<p>Case No. 2,407.</p> <p>Copyright — Publication after Filing.</p> <p>The work must be published within a reasonable time after filing the title page.</p>

<p>Case No. 2,409.</p> <p>Conusiox — Steam and Sail — Lookout—Speed of Steamer.</p> <p>[A schooner while ascending the Elizabeth River, Va., close hauled on the starboard tack, at the rate of four knots an hour, out of the channel, on the easterly side, near the shoals, the wind south and the night dark, was run down by a descending steamer, proceeding at the rate of six knots an hour. When three or four miles apart, the schooner showed a light, which she kept hoisted until the collision. Those on the steamer saw the light, but lost sight of it. and thinking it on the western shore, ported ihe steamer's helm until the light was again seen, at which time the vessels were about a mile apart. Held, that the steamer was in fault ior failing to keep a proper lookout or to slacken her speed or come to anchor after ascertaining the schooner’s true position.]</p>

[In equity. Bill by George Carlisle and others, trustees, to enjoin a sale of mortgaged property directed by a decree of the state court.]

<p>[In equity. Bill by William T. Carlisle, as-signee in bankruptcy of Henry Wilson, against Joseph M. Davis and David M. Davis.]</p>

[At law. Action by Oarlock against Tap-pan & Tappan for damages for infringement •of a patent.

<p>Case No. 2,413.</p> <p>Charter — Bii.i. of Lading — Damagf. ht Rats — Peril of the Sea — Damage by Petroleum— Cleansing of Vessel — Sale of Goods to Arrive.</p> <p>1. The bark C. was chartered at New York by G. & A. to carry a cargo of fruit from certain ports in Spain to New York, it being understood that the vessel was then bound to Barcelona with a cargo of petroleum, and it being provided in the charter that the vessel was to be “cleaned as customary previous to loading homeward cargo.” The vessel was fumigated to destroy rats before she took on board any of the return cargo, and had on board a cat and a rat-terrier, and was cleansed after the cargo of petroleum was unloaded. The master gave certain bills of lading for the return cargo, with the usual exceptions as to acts of God and dangers and perils of the sea. These bills of lading were all made to, or assigned to, the charterers. The cargo was sold by the consignees to arrive, and they obtained a full price for it. When the vessel arrived in New York, some of the cargo was found to be damaged by the gnawing of rats, and also to be impregnated with the taste and smell of petroleum. G. & A. sued the vessel under the bills of lading: Hchl, that whore the owner of the vessel, notwithstanding the charter-party, enters into special contracts, through the master, in respect to the carriage and delivery of the goods, the bills of lading must be regarded as the contracts by which the rights of the parties are to he governed, so far as respects the matters provided for therein.</p> <p>[See Two Hundred and Sixty Hogsheads of Molasses, Case No. 14.29G; Lamb v. Parkman, Id. 8.020: Perkins v. Hill, Id. 10.987, allirininT id. 10.9.SU: Carr v. Austin & N. IV. It. Co.. 14 Fed. 419.]</p> <p>2. That loss or damage- by rats is not an act of God. nor a danger or accident of the sea.</p> <p>[See note at end of case.]</p> <p>3. That the fact of damage by rats is sufficient evidence that sullioionf care and skill was not exercised to rid the vessel of rats.</p> <p>4. That the fact of damage by petroleum must be accepted as evidence that the vessel was not cleaned in the customary or proper manner, as required by the charter.</p> <p>[See The Lizzie IV. Virdon, 11 Fed. 903.]</p> <p>5. That where merchandise is sold to arrive, for a price based on undamaged goods, and that price has been paid in full, but it is not shown that the right of property and the right of possession were not in the vendor when the breach of contract or neglect of duty complained of occurred, the vendor can maintain an action against the carrier for damage to the goods; but where there has been a rebate of duties for loss or damage in respect of any goods as to which an allowance shall be found due in favor of the consignees, they must be charged with that sum.</p> <p>[Disapproved in The Eroe, Case No. 4,521. Distinguished in samo case, on appeal, Id. 4,522.]</p> <p>[NOTE. On the coming of the commissioner's report, exceptions were filed thereto, and thereafter the parties, other than tile vessel, appealed to the circuit court, where the conclusion of the district court as to the exceptions was sustained. See Cases Nos. 2,413a and 2,413b.</p> <p>[Losses by perils of the sea include only such as are of an extraordinary nature, or arise from irresistible force or from inevitable accidents, or from some overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence. The Northern Belle. Case No. 10.319. affirmed in The Northern Belle v. Robson, 9 Wall. (76 U. S.) 526. Damage to a cargo by rats is not a peril of the sea, or a danger of navigation, within those terms in a bill of lading, unless it be shown that ordinary care and diligence were used to guard against injury by rats: citing Kirkland v. The Fame, Case No. 7.845; The Isabella, Id. 7.099. Nor are damages to a cargo by cockroaches, in the course of a voyage, tile result of a peril of the sea. or any of the dangers or accidents of navigation; citing Hazard v. New England Marine Ins. Co., 8 Ret. (33 U. S.) 557; The Miletus, Case No. 9,545.]</p>

[Appeal from the district court of the United States for the southern district of New' York. [In admiralty. Libel h.y Raphael M. Gomez and Daniel V. Arquinbau against the hark Carlotta to recover damages for injury to cargo by reason of damage by oil and from rats. There was a reference to a commissioner to ascertain the amount of damage by rats or by the oil to such of the cargo as was delivered. See Case No. 2,413.

<p>In admiralty.</p> <p>cited: Post v. Jones, 19 How. [00 U. S.] 150, 161; Rutter v. The Ferris [Case No. 12,17S]; 4 Abb. Nat. Dig. p. 103, pi. 104; The Zealand [Case No. IS,205]; Spencer v. The Chas. Avery [Id. 13,-232]; Two Hundred Ten Barrels of Oil [Id. 14,297]; The Waterloo [Id. 17,257]; The Rising Sun [Id. 11.S5S]; The Jubilee, 3 Hagg. Adm. 43, note; The Bastiaan, 5 C. Rob. Adm. 323; The Wm. Hamilton, 3 Hagg. Adm. 16S; Derelict Unknown, Id., note; The Susan [Case No. 13,630]; 2 Pars. Ship. & Adm. 263, 2SL 310, 312.</p> <p>cited: The Minnie Miller [Case No. 9,G3S]; Nicker-son v. The John Perkins [Id. 10,252]; The Waterloo [Id. 17,257]; The Camanehe, 8 Wall. [75 U. S.] 44S-473; Llewellyn v. Two Anchors &. Chains [Case No. 8.42S].</p>

<p>Case No. 2,413b.</p> <p>[Appeal from the district court of the United States for the southern district of New York.]</p> <p>[In admiralty. The libel was filed by William Bliss, as owner of the bark Carlotta, against Raphael M. Gomez and Daniel Y. Ar-quimbau, to recover the amount due on a charter party. There was a decree for libellant, and a reference to a commissioner to ascertain what sum should be deducted from the charter money due for failure to deliver certain cargo. See Case No. 2,413. On the coming in of the commissioner’s report, exceptions were filed thereto, and thereafter an appeal was taken to the circuit court. This ease was heard together with Case No. 2,413a, which see.]</p>

This was the case of a petition in bankruptcy by Moses Carlton, of Lancaster, and Albert S. Carlton, of Boston, for an injunction.

<p>[At law. Action upon a fire insurance policy. Tlie court charged the jury as follows :]</p>

<p>Case No. 2,416.</p> <p>Interest or Witness — Action by Partners — Nonjoinder — Examination on Voir Dire — Evidence.</p> <p>1. The court will not compel a witness to testify against his interest in a cause iu which he is interested.</p> <p>2. If all the members of a partnership are not named as plaintiffs, the defendant may avail himself of the objection upon non assumpsit.</p> <p>3. What a witness says on voir dire is not evidence to the jury.</p>

An information was filed in the district court, charging the brig Caroline, with violating the acts of congress, made for the suppression of the. slave trade. A sentence of forfeiture was pronounced in the district court, and on a writ of error to the circuit court, the following opinion, reversing the sentence of the district court, was pronounced by

At law. This was an action against [Hugh Maxwell] the collector of the port of New Y ork, originally’ brought In the supreme court of New York, and removed into this court by the defendant, to recover bade a penalty for undervaluation, paid by the plaintiffs [Nathaniel Carnes and others] upon an importation of corks from Bordeaux, in November, 1830.

In admiralty. Three libels were brought against tbe brig Caroline and ber freight, one for wages and two for supplies and materials, and the value of tlie vessel was shown to be insufficient.

In .adnflralty. TinS was a motion on behalf of the claimants of tlie schooner Caroline and Cornelia, that the libellants file security for costs, the process in tlieir favor having issued against the vessel without their having filed such security, on the theory that they were seamen suing an American vessel for their wages. [Motion granted.]

<p>[In admiralty. Libel by John A. Pounder against the schooner Caroline Casey for wages (E. & I. H. Lewis, claimants).]</p>

[Appeal from the district court of the United States for the eastern district of Pennsylvania.] This was a libel in rem by Patrick Doherty, a seaman on board of the brig Caroline E. Kelly, against that vessel, to recover arrears of wages, and also three months’ extra wages, two-thirds thereof to be paid to himself and the other third to remain for the use of the United States, under the act of February 28, 1803, § 2, which provides that whenever a ship or vessel belonging to…

[In admiralty. Libel for salvage by Benjamin Baker and others against the cargo sad materials of the ship Caroline Nesmith.]

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

[On certificate of John Fitch, Esq., register in bankruptcy.] Opinion. This cause is now pending before me. The said Carow has been duly adjudicated a bankrupt by the district court. The United States marshal, as messenger, has seized, attached, and has in his possession, under the order of this court, three ships, claims of indebtedness to the bankrupt, and other property, claimed by creditors to be the property of the estate of the bankrupt.

[On certificate of John Fitch, Esq., register in bankruptcy.] The following case involving a question of contempt was certified to the judge by Register Fitch. The register’s certificate is, to say the least, curious, but it is inserted in pursuance of our custom, to make our reports full and complete.

At law. This was an action of assumpsit [by Jeremiah Carpenter] on a policy of insurance upon the Glenco Factory and machinery, underwritten by the American Insurance Company at Providence, on the faith of certain representations contained in letters written by Samuel G. Wheeler to the insurance company.

On demurrer to the petition. The action is brought [by A. C. Carpenter] upon three instruments, substantially as follows: “Bond due in one year. Know all men, etc., that there is due from the county of Buena Vista to Lansing W. Lewis, or bearer, $1,000, with interest at the rate of ten per cent, per an-num, payable on, etc., on surrender of annexed coupons. For the performance of all which the faith of the said county of Buena Vista is pledged.

[Appeal from the district court of the United States for the district of Massachusetts.] Admiralty appeal from a decree in a proceeding in rem by E. AY. Carpenter against the schooner Emma Johnson, which was engaged in the transportation of goods between Boston and Chatham. The master undertook to carry a piano from Boston to Chatham, and deliver it there to libellant. The piano was injured on the passage, and the suit was instituted to recover damages therefor.

<p>Case No. 2,431.</p> <p>Rights op Assigxoe fob Benefit of Cbeditoks —Dealings of Assignee with Estate — Opinion Evidence.</p> <p>1. The assignor of his estate in trust to distribute the proceeds thereof ratably among his creditors, upon release of their claims within a specified time, and pay over to him the balance of proceeds remaining undistributed at the end of that time, may, after expiration of the specified period, by bill in equity in which the assignee and the only unpaid creditor are made parties defendant, compel a full and exact account of the dealings of the assignee with the trust estate.</p> <p>2. In order to hold a purchaser of trust property from a trustee authorized to sell, liable in equity to account for and pay the proceeds thereof to the cestui que trust, on the ground of fraudulent collusion with the trustee in the purchase, in the absence of other evidence of fraud, such inadequacy of consideration as would of itself be an indication of fraud must be proved beyond question.</p> <p>[See note at end of case.]</p> <p>[3. Opinions of witnesses who have knowledge of land in controversy, and of sales in its immediate vicinity, are admissible in evidence, although such witnesses may not be, strictlv speaking, experts.]</p> <p>[NOTE. Mere inadequacy of price may be so great as to be evidence of fraud, but is not in itself a fraud for which a court will pronounce a deed to be absolutely void. "Wright v. Stannard, Case No. 18,094. In Eollett’s Heirs v. Rose. Id. 4,900. it is said that inadequacy of consideration does not invalidate a contract unless it be so gross as to strike every one with a presumption of fraud; and. to the same effect, see Surget v. Byers. Id. 18.629. The supreme court of the United States in Eyre v. Potter, 15 How. (50 U. S.) 42, in passing upon this question, held that, while inadequacy of consideration was not of itself a distinct principle of equity, yet there may be such an unconscionabieness or inadequacy in.a bargain as to demonstrate such gross imposition, or some undue influence, as will justify the interference of a court of equity, buT it must be such as to shock the conscience, and amount in itself to conclusive and decisive evidence of fraud.]</p>

<p>[At law. Action of trover by Joshua W. Carr, assignee in bankruptcy of Samuel C. Hemmenway, against Samuel C. Hemmen-way, Stephen Gale, and others. There was a verdict for plaintiff, and defendants moved for a new trial.</p> <p>[For denial of a like motion, based on other grounds, see Oases Nos. 2,444 and 2,445.]</p>

<p>At law. This was an action of trover brought by [Joshua TV.] Carr as assignee of Saruuel C. Hemenway, one of the defendants, against Stephen Gale and Hemenway, for the conversion of a store of goods in Bangor. The plaintiff claimed them as part of the estate of Hemenway, which should have been surrendered to him as his as-signee. The defendants claimed them as the proper goods of Gale, in the possession of Hemenway as his agent. The defendants pleaded separately the general issue, and the jury returned a verdict for the plaintiff for $5,030.43. The defendants filed a motion for setting aside the verdict, and for a new trial.</p> <p>[See decision of Woodbury, Circuit Justice (Case No. 2,435), which apparently was rendered upon the same motion.]</p>

<p>(The following report of the case tried before WABE, J., was drawn up and agreed to by the counsel in the cause.)</p> <p>At law. This was an action of trover [by Joshua W. Carr, assignee in bankruptcy of Samuel C. Hemmenway, against Samuel C. Hemmenway, Stephen Gale, and others], for a quantity of goods, &e., mentioned in the plaintiff’s writ, which writ may be referred to. The plaintiff introduced a copy of the decree of the district court, for Maine district, sitting in bankruptcy, declaring said Hemmenway bankrupt; and also a copy of the decree of said court appointing the plaintiff the assignee, both of which may be referred to and made a part of the ease.</p> <p>The plaintiff then called William S. Warren, who testified that he had been intimately acquainted with the defendant, Hemmenway, for six years past, and knew him before that; that he kept a store where the same kind of goods were kept which Hemmenway kept; that the store in which the witness kept, in 1S40, 1841 and 1S42, was about ten rods from said Hemmenway’s store; that Hemmenway traded in No. 1 Maine street, in Bangor, being the bank building, so called, from 1S38 to the fall of 1S42, in soiling his goods, which consisted of hats, caps, furs, &c.; that during the months of April, May, June and July, he had such goods in his store in Bangor as are named in the plaintiff’s writ, or of the kind and value named in the bills which he held in his hand, and which counsel agreed were the same named in the plaintiff's writ. The said bills may be referred to and are a part of the case. That, in the fall of 1S42, he moved from No. 1, to No. 19, West. Market place, which was the next door; that he was engaged, during the time, in selling said goods, and that he subsequently removed from this No. 19 to the opposite side of the street, and that witness never observed any apparent change in the mode or manner of his doing business. On cross-examination, he stated that Hemmenway’s sign over the door, was “S. C. Hemmenway,” in large letters, with the word “Agent” put in small, diminutive letters; that the whole word “Agent” was not more than three inches long, and about one half inch in width; that he kept beside the defendant one year before he discovered the word “Agent” on his sign; that he signed his name “S. O'. Hemmenway. Agent,” in all his business which he knew anything about. He also testified, that after h;s removal into the store in West Market place, the sign over the door was “Thomas Hersey;” and afterwards, the name of “William H. Hemmenway” was put up upon it. He subsequently, and after the defendant had gone through with his proof, stated that the profits on such goods as kept by Hemmenway, was twenty-five per cent., in the winter, and twenty per cent., in the summer.</p> <p>John B. Norris was next called by the plaintiff, and interrogated as to the business in the store of Hemmenway & Hersey, in 1S44, which was objected to by defendants, but was admitted; and he testified that he went into the store of Hemmenway & Hersey in the spring of 1844; — left about a month since. Can’t state the amount of stock. In the fall of 1844, stock was 830,000. Had in their employ, last winter, about thirty men. Can’t say what William H. Hemmenway was doing; not in store one-tenth of the time. Sam and Hersey had done all the business. Have seen William sell a very few articles. He bought some furs for the store, last winter. Don’t know whether Hemmenway & Hersey, or Richardson, employed the men. Understood that William was a member of the firm —not from any of the partners. Eor a greater part of a few weeks, last winter, William was making buffalo robes.</p> <p>George L. Gibson was next called, and testified that he was employed in Laban Hersey’s store during the time he was in business in No. 19, about three months, till he sold out, sometime in July or August, 1844, to Jos. Bryant & Son. Groceries came from Ingalls and Hersey’s, and about the city; some of the goods came from Hemmenway & Hersey’s store. S. C. Hemmenway took some interest in Laban Hersey’s sale, as ho would in the sale of Hemmenway & Hersey’s-stock. The witness was here objected to by defendants and stopped.</p> <p>O. H. Ingalls was next called by the plaintiff, and he stated that Hemmenway had been engaged in trade in Bangor from the year 183S to September A. D. 1S42, when he moved into No. 19 West Market place, it being the next door, and where the witness had kept his store; that during the months of April, May, June and July of 1S42, the defendant, Hemmenway, had such goods in his store, and he sold them during that time, as are mentioned in the plaintiff’s writ; and witness has never seen any apparent change in his business; that the word “Agent” was upon the sign in small, diminutive letters; and that he, witness, was in the store as clerk in 1842, in September, about 30 days; that those in the store engaged in selling those goods, were Thomas Hersey, S. C. Hemmenway, and himself; that they sold about one hundred dollars a day for cash, and about one-third as many on credit. The goods sold for cash were at a profit of about 20 per cent. Hemmenway was all this time insolvent. On cross examination he stated the sign was Wm. H. Hemmenway & Hersey, in the fall of 1812. On Hemmenway’s sign was the word “Agent,” in small letters. That he -was the agent, selling goods and doing business in that store, so far as witness knew by the word "Agent” on the sign. That the word “Agent”' was three inches, and the sign eight feet long. Subsequently, and after the defendants had gone through -with their testimony, he was recalled, and testified, (subject to objection,) that as well as he could judge, said Hem-menway, from the year 1S35 to July, 1842, sold, on an average, $15,000 of goods per year. He did not see the word “Agent” on the sign until after one year.</p> <p>The plaintiff then introduced the disclosure of Stephen Gale, as follows, viz.:—</p> <p>“District Court, Western District, June Term, 1842. Am acquainted with the defendant in this suit. Said defendant is a brother-in-law of mine. Am not in any way connected in business with said Hemmenway. I gave an instrument in writing to said defendant two years ago. What sort of an instrument it was, or what powers I gave him in that instrument I do not remember. I do not know what this was given for, but said Hemmenway thought it necessary for his transactions in business, and I therefore gave him this instrument; and 1 have no copy of it, and have not seen this instrument since I signed it. Don’t know that I gave the instrument any perusal before signing it. Might have given it a cursory reading, but I had great confidence in him, and therefore signed it. There was no consideration given me for signing said instrument, but what I did was from motives of friendship to aid him. Have never made any claim to any of the goods which said Hem-menway has in his possession since I gave the instrument above mentioned. Do not know what those goods are, and have never been in Bangor; and have no interest in, and have never taken any of the profits arising from the sale of goods which said defendant may have sold. Don’t know what sales or purchases said defendant may have made; though he may have made some statements to me in relation thereto. Cannot say that he ever showed me any bills of parcels thereof. Said Hemmenway is engaged in the hatting business. I am not at all acquainted with the hatting business. I never bought any goods which he has had for him. The instrument before spoken of was given by me to said Hemmenway at his request. (Signed) Stephen Gale.</p> <p>“Cumberland, ss. Personally appeared the above Stephen Gale, Esq., and made oath that the facts contained in the above disclosure. by him described, are true. Before me. Oliver G. Fessenden, Justice of the Peace. June 23, 1842."</p> <p>As trastee in an action, Allen Gilman against S. C. Hemmenway and Stephen Gale, trustees, and also the wrrit with the record of the court to which the writ was returnable. The record to be copied and made a part of the case. The writ is to be copied and made a part of the case.</p> <p>Plaintiff then called Thomas Hersey to produce and prove a bill of sale from said Gale to himself; and he was sworn and proved the paper. The defendants then claimed the right to cross-examine the witness to the w'hole case. The judge ruled that they could not cross-examine the witness except as to the matters to which he had testified on the direct examination, and that if he wished to examine him as a witness, to make out his own case, he must wait till after he had opened his case and call him again. And the court further ruled that the plaintiff having called the witness and-examined him, could not discredit him, by any evidence tending to show that he was not a creditable witness; and the bill of sale proved by Hersey, and which may be referred to, was then put in. Plaintiff then stopped, and the counsel for each of the defendants severally moved for a non-suit.</p> <p>Thomas Hersey wfas then recalled by the defendants, and stated the goods w'ere in No. 1 Main street, kept by S. C. Hemmenway, as. agent, when Gale came to Bangor and took possession, July 22, 1842; the schedule contains all the stock then in the store; the prices in the bill of sale are the true prices— the prices I paid. Most of the goods were taken at cost; very few, some old hats, at less than cost; some put down at more than cost; the cost, by the marks and examining the bills. I took possession and held it from time of bill of sale. Had dealt in such goods'four years. I paid full market price for those. Had been in the store then as-clerk nine months. The business was conducted in the name of S. G. Hemmenway,. a ¿rent of Gale; sign, “S. C. Hemmenway, Agent.” There was money and accounts due at the time oí sale; cash, about $000. Gale made me his agent to close the concerns. I gave Gale four notes for the stock as stated in the bill, for $4719.20. Those notes have been paid by taking up Gale’s liabilities. I took possession of all the assets in the store as Gale’s agent; cash, $938.52, and bills due, on which I had collected 1399.95. The cash on hand was endorsed on Sarah Shaw’s note against Gale, by me, in July 23, 1S42. Gash collected on bills was paid on Gale's liabilities. My notes were taken up in the same way; as fast as Gale's liabilities were taken up by me, they were handed him and endorsed on my notes. Here was put in, and sworn to by witness, a written statement of moneys paid by Hersey; the stock, money, &c., amounted to $7057.67; all that I have paid away as before stated, to discharge Gale’s liabilities. There are some accounts on hand not good. No other property in my hands. All the assets of the store came into my hands. I know the fact from my position as clerk.</p> <p>Plaintiff cross-examines. Bill produced is the bill of goods I purchased of Gale; don’t know whether copy now shown me as such, is a copy of my deposition. Can’t say whether the answer shown me was my answer or not, nor whether I made out a schedule to annex to that deposition. Was before Col. Parks to give deposition. Was questioned concerning my private business and refused to answer. I don’t remember of stating that the bill of sale was lost, nor whether deposition was taken in 1842 or 1843. Was not present when S. C. Hemmenway was examined before Parks. Don’t remember of stating to Ingalls that S. C. Hemmenway made $2000 per year. Gale was at Bangor, during the time of sale to me, two or three days. I was not employed as clerk by any one in particular. Stopped here (Portland) on my way down to Bangor, and had some talk with Gale about going there; no deduction has been made for my services on my notes; no settlement has been made for those services. I took what I wanted from the store; shall be twenty-five years old next month. Had less than $100 when I went to Bangor.</p> <p>Defendants resume. Gale, who is an apothecary, and resides in Portland, and S. C. Hemmenway, each married a sister of mine; and Sarah Shaw is the mother of Hemmen-way. I was out of business at that time. Stopped here at Portland a week. Talked with Gale. Went to Bangor; stopped eight or nine months; came here; went to Boston; came back; talked with Gale about buying. I went into the store because I was out of business. Lived in S. C. Hemmenway’s family. Took from the store what I wanted for expenses; don’t know how much. I was twenty-one years old at that time. S. C. Hemmenway said he should like to have me stop, he had not help enough. It was Nov. 1, 1841. I refused to answer before Gorham Parks by advice of M. L. Appleton, my counsel. My deposition was never completed. My deposition was afterwards taken before N. Hatch. Schedule was called for on that deposition. I made it in 1S43, from the bill of sale I had. Wm. H. Hemmenway and I constitute the firm of Hemmenway & Hersey. (Articles put in.) Moved this stock from No. 1 Main street to No. 19 West Market square, I think in September; formed copartnership Oct. 12, 1842. I put in the firm this stock I purchased of Gale, and put in $2000 in money which I borrowed of Augustus Hem-menway. All the capital I put in was borrowed. Wm. H. Hemmenway put in, in all, $1000. Hemmenway & Hersey owe about $11,000 for borrowed money. We buy goods sometimes on credit. Our stock averages about $4500. Our stock was at the time stated at $20,000. When I said $4500 I referred to stock in No. 19 West Market square. We now keep in No. 20 Main street. S. C. Hemmenway has no interest in our firm, has put in no capital. Gale has no interest.</p> <p>Power of attorney, put in by defendants, from Gale to S. C. Hemmenway, dated Oct. 13, 1S3S, which may be referred to.</p> <p>Depositions were next made.</p> <p>Augustus Hemmenway was next called by the defendants, and testified as follows: I am a brother of S. C. Hemmenway. I resided in Chili, Pera and adjoining countries, from 1S2S to February. 1S38, remaining in the United States nearly the whole of 1838; then went again to Chili and returned to the United States in February or March, 1840. My business residence is in New York, but a large part of my time is spent in Boston and neighborhood. Since my return from Chili I have spent the winters in Cuba. I loaned money to Gale in 1838, in September or October, immediately before I loft for Chili, and took a note for the amount. The note now shown me is the same. The date is Oct. 21. 1838, and the amount $1800. It was paid August 21. 1845, with $630 interest. The loan was made at the date of the note, and to Samuel C. Hemmenway, who showed me a power of attorney from Gale to jjuui before I made the loan. The power of attorney now shown me is the same, (the one in the case.) The loan was made as capital to carry on business in Bangor, where my brother was agent. I hold another note, dated soon after my return in 1840. The loan was made in the same way, for the same purpose; and the note for the amount ($000) was signed “S. C. Hemmenway, agent for Stephen Gale,” and is now unpaid. The first mentioned note was paid by a note of Hemmenway & Hersey for $1S00, and a new note signed by Gale for the interest, $030. In 1S38, on my return to the states, I found S. C. Hemmenway destitute; he was a clerk in a hat store in Boston, and separate from his family. His wife and child had gone home to her father’s to live. He applied to me for assistance. I gave him money for bis immediate 'necessities; small sums repeatedly during the eight months I was at home; but declined to set him up in business. He solicited me repeatedly to do something for him. I went to see some of his creditors who did not become parties to the assignment, and tried to purchase his debts, but i'ound.I could do nothing. I was a creditor myself to the amount of $3000 when S. C. Hemmenway failed in 1830. My agent came into the assignment, and received the dividend. about 50 per cent. I allowed my mother from four or five to eight hundred dollars a year during all the time of my absence; sent sometimes specie and sometimes drafts. I have ever since allowed her as large or larger sums. My mother has no property, to my knowledge, save what I furnished her. Hemmenway & Hersey have a permanent loan of me of $10,000 now. I loaned Hersey $2000, just after he purchased Gale’s stock; and AVm. H. Hemmenway $1000, when he went into partnership with Hersey. These loans have been increased, until now it is $10,000. It has been a consideration in these loans, that S. C. Hemmenway should be employed in the store as clerk, and have a living. S. C. Hemmenway is the most competent and active business man. My motive was to secure support for him and his family. On cross-examination he testified that the note shown him, dated in 1S35, and signed by S. O. Hemmenway, was for money loaned Hemmenway at that time, and was sent from Ouba in a letter; it is my hand-writing. I was worth not less than $200,000 at the time of the first loan to Gale, and am now worth $400.000. The note for $2000, of Hersey, was not collateral. The money for the $3000 loan was sent to B. Bangs. The money passed through his hands. Direct examination resumed. The first dividend of 40 per-cent, and the second of 10 per cent., were paid to B. Bangs for me. Immediately after my return it was stated to me that something more might be coming, a mere trifle; and S. C. Hemmenway requested an order for it. I gave it to him as a gift. I sent a special power of attorney to Bangs when I heard of S. C. Hemmenway’s failure, thinking it might be necessary. The dividends were credited by Bangs to me in account current and with account of voyage of ship “Pearl.” The account was sent to me at Valparaiso.</p> <p>The defendants here offered to introduce the original petition of S. G. Hemmenway to be declared a bankrupt, together with the schedule annexed; but the plaintiff objecting, the court observed that schedules were not evidence for defendants, (containing the defendants’ account of this business;) that the petition was evidence; and if the plaintiff did not put in the petition, the defendants could ask the opinion of the court, when the evidence was out, or ask instructions to the jury whether the plaintiff had shown any right to sustain the suit. The defendants’ counsel also introduced the notes of Mrs. Shaw, which may be referred to and are made a part of this case.</p> <p>The depositions of the following witnesses were put in by the defendants, for the purpose of showing that the goods furnished the store in Bangor, from 1838 to 1S42, were furnished on the credit of Gale, and may be referred to, viz.: Martin Bates, Jr.; S. W. Olney; Edward P. Porter; O. N. Towne; J. M. Sherburne; Charles A. White; Anson Dexter; W. A. Fisher; William Parkman; Isaac Lothrop; N. Carpenter; S. C. Perrin. The plaintiff introduced an execution in favor of Hastings Strickland, and a note dated July 16th, 1S3C, for $210, signed by S. C. Hemmenway, on which the judgment was founded. Also, a note payable to Arad. Thompson, and endorsed to Allen Gilman, which note may be referred to. S. C. Hem-menway's assignment, dated July 25th, 1S3G, was next introduced, and is a part of the case. Also, Samuel Sylvester’s deposition (under objections), which is made a part of the case. And then called Joseph Bryant, who testified that he was one of the assignees of S. C. Hemmenway. That soon after the assignment, several individuals called upon him, and said that they owed accounts to said Hemmenway; when, on turning to the books, they appeared to be balanced by cash, without any date; and that no corresponding entries could be found on the day-book.</p> <p>The defendant’s counsel objected to this testimony, without the production of the books; — the books being in the defendant’s possession.</p> <p>The counsel for the plaintiff was then proceeding to interrogate him in relation to the abstraction of goods assigned by said Hem-menway, for the benefit of his creditors, when the counsel for the defendant, Gale, objected to the testimony, as being transactions previous to the power of attorney; and the counsel for Hemmenway objected to the testimony, as being immaterial. The counsel for the plaintiff stated his only object in introducing the testimony was to show that Hemmenway had funds of his own, to transact business, in 183S; and to rebut defendant’s testimony that he was poor; and said, they did not claim this as testimony against Gale, unless they so connected Gale with Hemmenway, as to make him, by law, re sponsible for the declarations and acts of Hemmenway, and the court admitted the testimony. And the witness testified, that about ten days after the assignment, he went into the store where the goods assigned were stored, and found Hemmenway and his mother there. They had a large quantity of goods laid out on the counter. That he was trying to find a piece of silk which some one wished to buy; asked Hemmenway where it -tras; he replied, that his mother had got it; inquired of him how he got into the store, and he replied, that he had a duplicate key. That they took, without his knowledge, several hundred dollars; that Mrs. Shaw became a party to the assignment, for the whole of her alleged claim — being about $2.300; that these goods were never paid for, nor allowed for, in any way; that it was an unpleasant affair; that Hemmenway said his mother had been stripped of all, by his failure. On cross-examination, he stated that he never made any claim on the debtors whose accounts were balanced; nor did he endeavor to compel Hemmenway, or Mrs. Shaw, to pay for the goods. That the reason was, that he had to do with a woman in tears; and that he consulted with a committee of the creditors, under whose direction he acted. That he took away, without his knowledge, from $500 to $1,000. He could now only remember some three or four articles— such as two pieces of Cashmere shawls, and some other things. That he put a new lock on the door immediately. That he made no charge of things so taken. That the amount allowed Mrs. Shaw was $2,330.29; that was allowed by arbitration.</p> <p>The plaintiff then introduced the deposition of Daniel. P. Wood, which was objected to, but was admitted. But no objection was made to the form of taking the deposition, it having been thus taken by agreement of counsel; and the same is made a part of this case.</p> <p>S. T. Dinsmore, called by plaintiff, stated that he was here as a witness, in May last. Went down in steamer with S. C. Hemmen-way; don’t recollect any remarks of S. C. Hemmenway. Mr. McCrillis was talking with Smith; S. C. Hemmenway joined in the conversation. In reply to some remarks of McCrillis about Gale, he said, he (Gale,) did not care a d — n for the whole scrape; he would not quit his shop for the whole scrape.</p> <p>A. S. Richmond was next called, and was objected to by the defendants, but admitted against Hemmenway; and who testified that he sold S. C. Hemmenway, for cash, six or seven years ago; don't recollect that he ever told me he was agent. Moved to Bangor last November; made a sale to Hemmenway & Hersey, last fall, of $2,700, mostly for cash; one note, rest for cash; then I talked of going to Bangor; most of my conversation was with S. C. Hemmenway. I said I hadn’t means; they said they would furnish me means. S. C. Hemmenway was the principal man, so far as I was concerned or observed. I found out William was partner, in February. William spent most of his time cutting buffalo coats, till February; since then, little time. Have heard S. C. Hemmenway talk of this suit. We were riding by Allen Gil-man’s house; said something about Gilman’s suit; he said he would fight till he spent $10,000, before he should get anything; he made $4,000 or $5,000 the year before. Cross-examined. Made my contract with Hersey & Hemmenway; considered them to be the other party; supposed S. C. Hemmenway to-be a party; last conversation, when contract was closed, was in Hersey & Hemmenway’s store; S. C. Hemmenway and Hersey were present. T. G. Sampson came over with mo, and came into store at time; can’t recollect whether William was present, or not. Hersey & Hemmenway bought the $2,700 last year; the goods were on east side, (of the Kenduskeag;) have no recollection of going with William alone: went with S. C. Hem-menway, and William, together, (to see the goods;) don’t recollect that William made any offer. I resided at Winthrop all the time I traded with S. C. Hemmenway; don’t know as I have (any) quarrel or difficulty (with S. O. Hemmenway.) I took advice of counsel and left their store. Direct. S. C. Hemmen-way asked me what I was summoned here for. I told him that I was here to testify that they had wronged and injured me; but I didn’t come here for revenge, or to gratify my feelings. Hemmenway said his situation was such that he could not be a legal partner, and that his case -was as straight as a gun. Cross-examination resumed. Signed bills to S. C. Hemmenway, as agent First, February 12th, 1842. Second, June, 1812. The bills put in may be referred to.</p> <p>George Gibson was called by the plaintiff, and objected to, but was admitted against Hemmenway. Testified that S. C. Hemmen-way had as much to say about sale (of Laban Hersey’s stock,) as any one else. Bryant & Son came to buy; were to have it at ten per cent Hersey & Hemmenway asked twelve. S. C. Hemmenway said it made no difference whether they sold at ten or twelve, if they had a day or two to mark up; and were marked up. S. C. Hemmenway asked me since I came here, if I did not know he acted as agent when he kept in No. 1. I told him I knew he had a tin under-sign lettered so. S. O. Hemmenway said he was not a partner, but confidential clerk (of Hersey & Hemmenway.) I told him I knew William and Hersey were in the firm of Hersey & Hemmenway. Stock of Laban Hersey was part of stock of Wellington — such goods as Hersey & Hemmenway did not keep.</p> <p>C. A. Richardson testified, under objections, that he was in Hemmenway & Hersey’s store five months. Can’t say what part of the time William Hemmenway was there; have seen him there; not so often as the others; rather seldom. Also, that he and Hersey had some difficulty about a bench; that said Hemmenway came over to arrange it; and that he asked him if he, Hemmenway, did not sanction what Hersey done in the business of Hemmenway & Hersey. He replied: “Not by a good deal; that he was boss, or master of that concern; that his family, and not Hersey’s represented the capital in that concern.” This testimony was objected to, but was admitted as against Hemmenway.</p> <p>John B. Norris testified that he had been a clerk in that store (Hemmenway & Hersey’s) about nine months, and until about a month since; that S. C. Hemmenway and Hersey were the principal men in that store; that William H. Hemmenway was not in there more than a tenth part of the time; that when inquiries were made there for him, S. C. Hemmenway told them that they would probably find him at Vinton & Porter’s who kept a restaurater.</p> <p>The defendants resumed, and called William H. •Hemmenway, who testified as follows: — Hersey and I are the firm of Hem-menway & Hersey. No other person is in it. S. C. Hemmenway never had any interest in the goods, or capital. I put into the firm $1000, which I borrowed of Augustus. We had no real capital — none but borrowed. We owe, for loans of money, something rising $12,000. I am in the store every day when in town — not constantly — and have taken part in the control and direction, ever since I signed the articles of copartnership. I have no other business. I talked with Richmond, before the purchase of him; went over to see the goods, with him; examined them, and made him an offer, which he finally took. At the same time there was conversation about his coming to Bangor. On Sunday, (the other conversation spoken of,) there were present, S. C. Hemmenway, Hersey, Richmond, Sampson, and myself. I settled Mrs. Shaw’s claim on the assignees, and they were allowed $337.S2, for goods from the store; no other claim was made for goods so taken. S. O. Hemmenway was the agent of Gale. I was in Bangor then; often in his store. His stock, I think, would hardly average $4000; chiefly hats and caps, and in the winter, buffalo robes. It increased $1500 or $2000. gradually, during the last eighteen months, in furs, boots, &c. On an average, it would be well to sell $10.000 or $12.000 a year, on a stock of $5000. The sign was C. Hemmenway, Agent.” The business was conducted as Gale’s, so far as I knew. Cross-examined. S. C. Hemmen-way bought some furs.</p> <p>Thomas Hersey re-called by’ defendants, who testified that since testifying before, he had examined the account, (exhibited by him,) and found an error of $100, in amount collected of O. N. Towne. His account should be $500; and $8.00 collected of Still-man Wilson. Of the money paid by him (to discharge Gale’s debts), some was paid into the bank; some sent by S. C. Hemmen-way; some by mail. That his sales, when O. H. Ingalls was in his store, a week or two, were not more than $00.00 per day. That the profits in store No. 1 Main Street, under S. C. Hemmenway's direction, were about $1000 or $1200 a year: ‘average profits on sales, twelve and a half to fifteen per cent. The stock would average $4000, or a little more. Cross-examined. He said he had examined the books since his former statements. The mistake was in making up the list of accounts, not in settling.</p> <p>Oliver Fessenden was called by the defendants, and testified that the disclosure of' Gale was written by him from the account of Gale; that it was written in Gale’s store, in Portland; that he had no counsel present; that he advised him to call on C. S. Daveis, Esq., his counsel; and he went for him twice, but not finding him, concluded to proceed; that after it was written, he read it to Gale; that Gale took it and read it. and said it was right, and signed it, and swore to it.</p> <p>The assignment of 1S80 — the copies of Mrs-Shaw’s notes, may be referred to. Also, notes to Augustus Hemmenway. Also, the records of the district court, showing that William H. Hemmenway is a discharged. bankrupt. And also, the schedule of accounts referred to by Hersey.</p> <p>After the testimony was closed, and before argument, Hemmenway's counsel contended to the court, that there was no evidence of conversion by his client, and asked its direction accordingly; and Gale's counsel took a similar position, and made a similar request in regard to his client.</p> <p>The court instructed the jury, that if they were satisfied, that in 1838. when the power of attorney was given by Gale to Hemmen-way, that Gale consented to give it, and Hemmenway to take it, with the intention that Hemmenway was to do business on his. own capital, and for his own benefit, and that it was only a blind, set to deceive the public and defraud creditors, and Hemmen-way did business on his own capital for himself; — that then it was evidence, and strong-evidence, of fraud. Second. That if Gale-sold the property to Hersey after it had vested in the assignee by the decree of bankruptcy, it was evidence of a conversion. Third. That if the property was Hemmen-way’s, and Gale sold it by a contrivance between him and Hemmenway. and at Hem-menway’s request, to put it further beyond the reach of his assignee, it was evidence of a conversion by both Hemmenway and Gale.</p> <p>The jury returned a verdict for the plaintiff. for $5,300.10.</p> <p>The defendants moved for a new trial. First, because the verdict was against the weight of evidence. Second, because the judge who tried the cause made several rulings as to evidence, and gave several directions to the jury which were erroneous. They also filed a motion in arrest of judgment.</p>

[In equity. Bill by Joshua Wingate Carr, assignee in bankruptcy of William Smith, against Stephen Hilton et al., to reach certain alleged assets of the bankrupt. The defendant demurs to the bill.]

[In equity. Bill by Joshua Wingate Carr, assignee in bankruptcy of William Smith, against Stephen Hilton, to reach certain alleged assets of the bankrupt. Defendant demurred to the bill of complaint, and the demurrer was overruled. See Case No. 2,430, next preceding. Thereafter, he answered, and the ease is now heard upon the merits.]

Ejectment for a tract of land in West Greenwich. Plea, the general issne. At the trial, the plaintiff [Nathan Carr] proved a title to the premises by a deed from Simon Reynolds to him, dated the ISth of July, 1826, the execution of which was established. The defendant [Joseph Hoxie] then set up a title to the premises under a prior deed from the same grantor, dated the 26th of May, 1S20.

This was an action at law, for the infringement of reissued letters patent [No. 302] granted to Issachar Frost and James Monroe, March 13th, 1S55, for an “improvement in machinery for separating flour from bran,” commonly called a bran-duster. The plaintiff [John M. Carr] was the assignee of the patentees. The original patent [No. C,14S] was granted to them February 27th, 1840.

<p>Case No, 2,440.</p> <p>Patents — Nature op Grant — Utility—Comrination — Specification—Description—Identity— Infringement.</p> <p>1. A patent is dealt with by the courts, as a grant by the legislature, in exchange for the equivalent to be received by the public, in the free enjoyment of the patented discovery, after the inventor’s exclusive privilege expires.</p> <p>2. The patent grant is bestowed in consideration of something new and valuable, contributed by the patentee to the public benefit. If the subject of the grant was already open to common use, he renders no equivalent for the privileges he obtains, and fails to fulfill the vital condition upon which he was authorized to enjoy them.</p> <p>[Cited in Bliss v. Brooklyn, Case No. 1,544; Hussey v. Bradley, Id. 6,946.]</p> <p>[See note at end of case.]</p> <p>3. It matters not how the thought is acquired or how brought into action, whether by a sudden conjecture, or chance experiment, or by the labors and investigations of a whole life; or, that it proves pre-eminently serviceable and profitable to the industry and enjoyments of life, or only to a very inconsiderable amount.</p> <p>4. The law secures to the patentee the right to the use of his machine, provided it consists of a new combination, although composed of parts well known, and in common use.</p> <p>5. If the patentee fails to mention, in his specification, an addition which is indispensable to the use of his ma.cliine, it is fata) to the title set up by the plaintiff. But if the machine works well without the addition, or if it be a mechanical means incident to the construction of the machine, to be brought into use in special circumstances, or only for the quickening, or making more profitable, the operation of the machine, it is not to be regarded as an indispensable part of it, and need not be described or claimed in the specification.</p> <p>[Cited in Doman v. Keefer, 49 Fed. 463.]</p> <p>G. Strong resemblances in external appearances, similarity of products or operation, are not. separately, tests of the identity of the plan, or purpose of machines; nor is a superiority in products, or in operation, in one over the other, proof of an essential difference; because the slightest change of a machine, which effects a real improvement in it, may be patentable, while great apparent variations may be only disguises, under which an older discovery is attempted to be employed and appropriated.</p> <p>[Cited in Rapid Service Store Ry. Co. v. Taylor, 43 Fed. 252.]</p> <p>7. The defendant can not embody in his machine the patented discoveries held by the plaintiff. nor entitle himself to use them, by adding improvements, or new inventions of his own or of others thereto.</p> <p>S. A person purchasing property, against the right of another, when the owner was without evidence of his title, can not hold or use it, after the evidence of his superior right is acquired by the real owner. Patent interests are not distinguishable, in this respect, from other kinds of property.</p> <p>[NOTE. Thereafter defendant moved for a new trial, which was granted. See next preceding case. No. 2.439. Patent No. 0.1(18 was granted to Frost & Monroe. February 27, 1849;. reissued March 13, 1S55 (No. 302). and February 25. 1802 (No. 1,280). For other cases involving this patent, see note to next preceding case. No. 2,439.</p> <p>[As to what constitutes novelty within the laws relating to patents, see Forbush v. Cook, Case No. 4.931; Wayne v. Holmes, Id. 17,303; Clark Patent Steam & Fire Regulator Co. v. Copeland. Id. 2,866; Adams v. Edwards, Id. 53; Milligan & Higgins Glue Co. v. Upton, 97 U. S. 3. affirming Case No. 9.607; Matthews v. Skates, Id. 9,291; Wintermute v. Reddington, Id. 17.896; Hayes v. Sulsor. Id. 6,271; Wood v. Packer, 17 Fed. 650; Judson v. Moore, Case No. 7,569; Bedford v. Hunt. Id. 1,217; Earle v. Sawyer, Id. 4,247. It is not sufficient that a new result is produced. Leroy v. Tatham, 14 How. (55 U. S.) 156, 178. A known result produced by new means is insufficient. Smith v. Nichols, 21 Wall. (88 U. S.) 112, affirming Case No. 13.084.]</p>

<p>Case No. 2,440a.</p> <p>CEliTIORAlU — WlJEX WlUT WILL ISSUE.</p> <p>A writ of certiorari cannot issue from the superior court, for the purpose of bringing up a case from the county court for adjudication, and such case should be determined in the circuit court.</p>

In equity. This was a motion to remand this suit to the superior court of Cook county, from whence it was removed to this court. This suit was originally brought in the superior court under what is known as the “Burnt Records Act” of this state, for the purpose of perfecting and establishing title to the lands described in the bill.

The district court had given a judgment in admiralty against the schooner Charles Pitman [case not reported], from which there was an appeal to this court. now moved to take certain testimony on one of the points, upon which the district judge had decided the case; a point, it appeared, which had not been much adverted to by counsel below.

The brig Ann O. Pratt sailed from Frankfort Nov. 7, 1S30, on a voyage to the Western Islands, and thence to such foreign port or ports as the master should determine. On her outward passage she encountered heavy gales, squalls, and had fresh breezes during the whole time.

<p>Case No. 2,446.</p> <p>Statute op Frauds — Suit against Infant—Notice—Specific Performance—Appearance.</p> <p>1. A parol contract in Virginia, in ITS", for land in Kentucky, where the consideration was paid, was not void by the statute of frauds.</p> <p>[See note at end of case.]</p> <p>2. The courts of Virginia sanctioned the contract and decreed a conveyance, the vendor being a resident of that state.</p> <p>[See note at end of case.]</p> <p>3. In a suit against an infant, a notice should be served on him. and a guardian ad litem appointed by the court.</p> <p>[Cited in O’Hara v. McConnell, 93 U. S. 152; Woolridge v. McKenna, 8 Fed. 069.]</p> <p>4. But so far as the proceeding is only considered as having been examined by the party, and afforded notice of the title asserted, it is not important that the proceeding should be strictly regular.</p> <p>5. That which puts the party on enquiix is notice; but, in this case the notice is admitted.</p> <p>[See nqte at end of case.]</p> <p>0. A decree in Virginia cannot operate on the title to land in Kentucky. But having jurisdiction of the person, the court may enforce its decree. The statute of frauds in Kentucky, cannot operate on a contract made before the adoption of the statute.</p> <p>7. A voluntary appearance after the revival of a suit, is a waiver of process. The doctrine of lis pendens applies only where the court has jurisdiction over the tiring.</p> <p>[NOTE. Defendants appealed to the supreme court of the United States, which affirmed the decree of the circuit court, upon the grounds, as set forth in the opinion of Mr. Chief Justice Marshall, that the exchange by John Williams of his military land for the Dry Branch tract was fully established by the testimony; that the complete execution of the contract on the part of George Carrington by conveying the Dry Branch tract to the vendee of John Williams supplied in law the want of a memorandum in writing, and that such construction of the statute of frauds by the courts of Virginia at the time the contract was made, the land then being within that state, formed the law of the contract, and the change of the law afterwards made in Kentucky could not affect the validity of the contract; and, furthermore, that the proof unequivocally showed that defendants had received notice of the contract made by Carrington with John Williams, and that, having, with the exception of Brents, purchased equitable titles, were bound to notice prior equities. Caldwell v. Carrington, 9 Pet. (34 U. S.) 86.]</p>

[In equity. Bill by Daniel N. Carrington against the Florida Railroad Company and Albert A. Drake. Defendants move to dissolve an injunction granted by the state court. For denial of prior motion to remand the cause to the state court, see Case No. 2,447, next preceding.]

[Appeal from the district court of the United States for the district of Massachusetts.] This was an appeal by the libellant from a decree of the district court [ease not reported] in a cause of personal damage.

In admiralty. This was a suit by Wesley Egbert, master and part owner of the schooner Elijah Shedden, to recover the damages sustained by her in a collision with the steamer Carroll belonging to the Baltimore & Ohio Railroad Co., which occurred on the evening 'of the 21st of December, 1S65. At about half-past seven o’clock that evening, the schooner was bound down Chesapeake bay, before a free wind with her sails wing and wing, at a speed of four or five miles an hour.

Case, for use and occupation. A parol demise for a year from 1st November, 1S02, at six hundred dollars per annum was proved. Defendants [Finnagan and Waters] quitted the house in February, 1S03, because the chimneys smoked, so that their lodgers had determined to leave them. contended for the whole year’s rent.

<p>Case No. 2,455.</p> <p>Admiraltt — Release op Libeled Vessel ox Stipulation- — Rights op Suketp — Of Lienors —Materials and Supplies — Subrogation.</p> <p>1. Where a surety on a bond or stipulation given in the admiralty, pays the money in accordance with the decree of the court, he is entitled to be subrogated to the rights of the original libelants; but he cannot be paid by preference out of the proceeds of the boat which has been sold under his execution, while there are liens already existing.</p> <p>[Cited in The Madgie, 31 Fed. 92S: Roberts-v. The Huntsville, Case No. 11,904.]</p> <p>2. The moment the boat was released upon a stipulation, from the custody of the law, she was also released from the lien in favor of the original libelants, and they could only have recourse upon the stipulation. The boat was at liberty to go where she might think proper, and quoad the claim of the original libelants, was at liberty to contract de novo, debts which might operate as liens in admiralty or under the local law.</p> <p>3. The claimants of a boat libeled for salvage, upon giving a stipulation for her release from the custody of the law, take her cum ouere, subject to pre-existing liabilities.</p> <p>4. The surety on a stipulation who has paid money for his principal, can only be regarded as an ordinary creditor of the principal, upon-whose personal credit he relied when he bound himself for the payment of the obligation. His right to be paid out of the proceeds of a boat which has been sold under his execution, must be regarded as subordinate to the claims of the interveners who have established their liens.</p> <p>5. It is the surety’s own fault if he fails to exact of his principal a separate stipulation to indemnify him against loss; and although the rules in admiralty are silent with regard to this form of stipulation, yet as a familiar and well established part of the civil law and general admiralty practice, tbe court would not hesitate upon the application of the surety to direct it to be given.</p> <p>6. When supplies are furnished to a vessel in her home port, the validity of the liens must be determined by the local law; but when they have been furnished in a foreign port, or in the port of a state other than the one to which the vessel belongs, the liens are to be regarded as admiralty liens, which are unaffected by any limitations of the local law.</p> <p>[Cited in The General Tompkins. 9 Fed. 621; The Rapid Transit, 11 Fed. 332.]</p> <p>7. If A. hold a lien against a vessel for materials furnished, and the master request B. to-pay the account of A., the lien originally held by the latter is not by such payment transferred to B., and he has no right of action in rem in the admiralty. NOTE [from original report]. This decree was, on appeal to the circuit court, affirmed by Mr. Justice Campbell.</p>

<p>[In equity. Bill by Charles H. Carroll against the treasurer of Monroe county.]</p>

Hearing upon a bill in equity. This bill was filed by Messrs. Carroll & Hay against Watkins, as assignee in bankruptcy of J. B. Moore and others, to enforce their claim to priority of payment out of the assets in the assignee’s hands. Carroll & Hay were commission merchants in Nk w Orleans, and obtained judgment in the circuit court of the United States, sitting in the southern district of Mississippi, against Moore, who was formerly in business as a retail merchant.

[A prosecution for murder, in the criminal •court of Baltimore city, was commenced against George M. Carson, customs inspector for the Baltimore district; and on November ■6, 1873, he filed a petition for a writ of ha-beas corpus, and for removal of the cause to the circuit court.

The defendant entered into a contract with one Bartlet, for building three houses on lots belonging to the defendant in Philadelphia; during the building of which the defendant was to advance a certain sum. One of the houses was to be the defendant’s, and the other two Bartlet’s, upon a certain ground rent; and after the buildings were completed, the defendant was to convey to Bartlet.

[Appeal from the district court of the United States for the district of Pennsylvania.] In admiralty. This was an appeal from the district court of Pennsylvania. A libel ■was filed in that court, by William Downing Jennings, late owner and proprietor ot the sloop George, and her cargo; against Joseph Carson,' one of the owners of the privateer, called the Addition.

This was an agreed caso, in which the only question submitted to the court was. whether. in case of a total loss of goods insured in an open policy, the invoice price, agreeing with tlie first cost, shall be taken as fixing the value, or, the current market price of similar goods at the time and place of shipping them; the latter being about 20 por cent, lower than the former. Cliauncey. for plaintiffs, relied upon the following cases: 2 Marsh.

In August, 1S5C, W. A. Carson died in South Carolina, leaving a large amount of property, real and personal, in that state. Held: since the establishment of the government, that the courts of the United States administer equity according to the general principles of English equity jurisprudence. “As tlie courts of tlie Union liave a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all, and gives the same rule of…

<p>[In equity. Bill by Hugo Carstaedt against the United States Corset Company to enjoin infringement of letters patent No. 88,3(15 (reissue No. 5,150).]</p>

[In equity. Bill by Hugo Carstaedt to restrain infringement of letters patent No. 88,3G5, reissued and numbered 5,150. An injunction was granted (see Case No. 2,407); and plaintiff now moves to attach James Ly-all. one of the officers of the defendant company, as for a contempt in violating said injunction.]

<p>Case No. 2,469.</p> <p>Pees of Register in Bankruptct.</p> <p>Under general order No. 30, of the general orders in bankruptcy, adopted by the supreme court, April 12th, 1S75, no fees can be allowed to a register, except such as are provided for by general order No. 30, even for services rendered before suck general order was adopted.</p>

In bankruptcy. This was a petition in bankruptcy filed by the Hydraulic Woolen Mill Company, of Columbus, Indiana, against William Carter, of the same place, alleging three distinct acts of bankruptcy; First— That Carter sold and delivered to David Aiken personal property to the value of six hundred dollars, receiving a credit for that amount upon a debt due from him to Aiken, he, Carter* being-at the time insolvent, and intending by the payment to give Aiken a preference.

<p>[In bankruptcy. In the matter of .Tolin R. Carter.] On exceptions to the report of Register Chilton taken by H. W. Sheffey, counsel for a lien creditor.</p>

[This was an action by George R. Carter and others against L. L. Carter and others to recover damages for the infringement of letters patent No. S3.283, granted to H. R. Huic, October 20, ISOS.]

<p>[Appeal from the district court of the United States for the district of Maine.]</p> <p>In admiralty. This was an admiralty appeal. The schooner Byzantium, owned by parlies residing in the state of Maine, arrived at Norfolk, Virginia, in need of repairs and supplies in order to enable her to proceed in safety to her port of destination. At the request of the master, the libellant [David Carter] furnished the necessary supplies and materials and paid for the repairs. When the vessel was refitted, the master drew two bills of exchange on one of the owners in Maine, in favor of the libellant, for the amount then due him, which bills were accepted by the drawee, but were afterwards dishonored. Suit was commenced on the bills, but was never entered in court. It was in evidence that the taking of such bills of exchange, in the absence of a special agreement, was not considered, according to the custom of merchants at Norfolk, as a waiver of the maritime lien on the vessel for repairs, materials, and supplies. In the libellant’s account with the schooner, she was credited with the drafts, and appended to the description of them was a recital in the nature of a receipt, as follows, — “Which when paid will be in full of account." Upon the arrival of the vessel in Maine, a libel in rem was filed, claiming to recover on the original account, and the drafts were produced at the trial, and offered to be surrendered. After a hearing, the district judge decreed that the libellant recover the full amount of his account with interest [unreported]. From this decree the claimants [True W. Townsend and others] appealed.</p>

[In equity. Bill by Henry Carter against J. M. Carlisle, J. B. Gardiner & Co., Franklin Gardiner, and R. C. Washington, to set aside a deed of trust, and for other relief.

[Petition by the heirs of Sally Carter to revoke the probate of her will, devising her estate to Sally C. Cutting, wife of J. B. • Cutting.] An issue was sent by the orphans’ court of this county, to this court, to try the question devisavit vel non. made a motion to change the venue to Washington county, founded upon the defendant's affidavit of partiality and general prejudice in this county.

At law. Appeal from justice of the peace. The suit was brought before B. K. Morsell, justice of the peace. The appellees [Charles H. Lane and William Tucker], trading under the firm name of Lane & Tucker, made a pair of pantaloons for the appellant [Bernard F.] Carter, and sent them home ordering the boy not to deliver the pantaloons unless they were paid for. The appellant became offended and refused to take them, whereupon the appellees brought suit.

<p>[In equity. Bill by Merrill E. Carter against Austin E. Messinger for alleged infringement of letters patent.]</p>

<p>Case No. 2,479.</p> <p>Money — Gold and Cukkenct — Tender—Costs.</p> <p>1. Part of the proceeds of a whaling voyage were received in gold, and part in currency, and some advances were made to the libellant in gold. The account of the voyage was made up wholly in currency, the owners allowing and charging the premium on gold. Meld, it was properly made up.</p> <p>2. The libellant was to have a lay of one forty-second part of the eatchings. If the account was so made up that he received this share, it was rightly made up, whether in one currency or another.</p> <p>3. The libellant could not require that the gold dollars paid him at San Francisco should be charged at their face only, if the result would be to give him more than-one forty-second part of the actual net returns.</p> <p>4. The respondents having offered a certain sum before suit, based upon the mode of accounting adopted by the court, and no question of the sufficiency of the tender, in point of form, being made, the libellant was refused costs, unless it should turn out that the respondents had made a mistake in their computation, as to which the libellant had leave to go to an assessor.</p>

This was a bill in equity in the following terms: “Ezra Carter, Junior, of Portland; in the county of Cumberland, state of Maine, and a citizen of the state of Maine, for himself and also in his capacity of administrator of the goods, chattels, and estate of Seth R. Adams, late of Portland, aforesaid, and at the time of his decease a citizen of said state of Maine — to which capacity of administrator, your orator was duly appointed on the twenty-first day of November, A. D.…

<p>Case No. 2,482.</p> <p>Seamen’s Wages — Siiipwueck—Salvage by Crew —By Others — Compensation.</p> <p>1. The crew of a wrecked vessel, who have by meritorious exertions saved the tackle, apparel and furniture of that vessel, have a claim for compensation in the nature of salvage upon the property so saved.</p> <p>[See note at end of case.]</p> <p>2. It is the general doctrine of the English maritime law, from which ours is derived, that the payment of wages is dependent upon the earning of freight. If no freight be earned, no wages are due, for freight is the mother of wages; but in cases of shipwreck where the seamen cannot earn wages and yet perform a meritorious service, they are entitled to a salvage compensation for their labor and services in preserving the wreck of the ship and cargo, or either.</p> <p>[See Rev. St. § 4524, cited in note at end of case.]</p> <p>3. Where salvage is allowed to seamen for services performed in preserving the wreck of their own vessel and her cargo, the amount of wages they were receiving at the time of the disaster, is a safe and proper criterion to be adopted by the court in fixing the quantum of salvage they are to receive.</p> <p>4. Compensation in such a ease allowed to-seamen, must be paid out of the proceeds of the property saved.</p> <p>5. In awarding a salvage compensation at the rate of fifty per cent., in accordance with the stipulations of a written contract between the United States consul at Havana of the one part, acting for the master, owners and underwriters of the wrecked skip, and the master of the schooner Warrior of the other part, in pursuance of which the said schooner came to the relief of the wrecked vessel, the court will not give the whole compensation to the master and owners and leave the seamen to look to the other moiety for their reward. The contract is not a rule that binds the court to grant so large a percentage on the value of the property saved to the master and owner only, as ostensible parties to the agreement, when it is shown that the dangers and toils incident to the enterprise, have been shared by the seamen, who were doubtless induced to embark in the undertaking by the very fact that such a contract was entered into by the master.</p> <p>[NOTE. One of the earliest cases in this country to allow salvage to a seaman for services to his own ship was that of The Blaireau, 2 Crauch (C U. S.) 240. There the master and other members of the crew deserted the vessel, leaving one seaman alone upon her. With the assistance of other salvors, she was brought into port. The court laid special stress upon the fact that, by abandoning the seaman to his fate, the captain had absolved him from further duty under his contract. In the later cases this idea is still more strongly emphasized, and the right of a seaman to salvage in his own vessel is made to depend upon whether, before rendering the services, his contract has been put an end to. either voluntarily by the master, or by vis major. Thus, in the case of The Triumph, Case No. 14,183. it is said: “The vital question is, had the contract with the seaman been dissolved? that is, was he bound to render the service for which he claims salvage compensation, or had he been previously discharged from all obligation under his contract?” The same principle is laid down by Judge Lowell in The Olive Branch, Id. 10.491). In that case the ship had stranded. The master was absent, and there was no mate. The crew, however, got the vessel off. with some difficulty and danger. Salvage was denied on the ground that the voyage was not ended, nor the contract in any way annulled or dissolved. See. also. The Antelope, Id. 484; The Niphon, Id. 10,277; The Akbar, 5 Fed. 456; and the very recent case of The C. P. Mincli, Cl Fed. 511. In this ease salvage was denied because, although the master and part of the crew had left the ship, it did not certainly appear that he intended to abandon her, and the voyage was in fact completed, and wages paid to the crew. In the case of The Dawn, Case No. 3,0(10, Judge Ware seemed to be of opinion that, in case of wreck, the seamen might have two distinct claims, one for wages and another for salvage: the wages to be paid exclusively from the proceeds of any materials belonging to the ship, and the salvage to be a charge against the general mass of the property saved.</p> <p>[The act of June 7. 1S72 (17 Stat. 20S. § 30; Bev. St. § 4524), provides that the right to wages shall not be dependent on the earning of freight, “but in all cases of wreck or loss of vessel, proof that any seaman or apprentice has not exerted himself to the utmost to save the vessel, cargo, and stores, shall bar his claim.”]</p>

[At law. Action by X. G. Cartright against W. C. Bostwick upon an agreement.] Demurrer to declaration for want of consideration in contract, and because a sealed contract is in force between the parties in relation to same subject matter.

<p>Case No. 2,483.</p> <p>Abbest op Govebxmext Pkopeuty — Bottomby Bond — Vessel Cuabtebed to the Govebxmext —Motion to Vacate Pbocess.</p> <p>1. Where a vessel under charter to the United States, whose owners were to victual and man her. took on board a load of property captured by the army of the United States to bring it to New York, and meeting with disaster on the voyage, her master took up money on a bottomry of the vessel and cargo, and on her arrival in New York a libel was filed to enforce the bottomry bond, qnd the vessel and cargo were seized by the marshal under the process, and no appearance being entered for either vessel or cargo, the district attorney of the United States, before the return of the process, applied on affidavit for an order directing the release of the property and vacating the process, on the ground that government property was not subject to the process of the court, —Held, that whether the vessel could be considered as government property under the charter was doubtful, and that such a question should not be disposed of before appearance, and on motion.</p> <p>[Cited in Lands v. Cargo of 227 Tons of Coal, 4 Fed. 479.]</p> <p>2. That though the cargo was government property, it had been put by the government into the custody of the master of the vessel, and it was doubtful whether granting the or der would put the government into possession of it.</p> <p>3. That the law of the case ought to be determined upon a hearing on issues properly and formally framed, instead of upon motion.</p> <p>[Cited in Cushing v. Laird, Case No. 3.508; Lands y. Cargo of 227 Tons of Coal. 4 Fed. 470; Romanic v. Union Ins. Co., 28 Fed. 03G.]</p> <p>[NOTE. The libellants appealed to the circuit court, which affirmed the decree entered herein ns to the cargo, and dismissed the libel as to the same, but without costs in either court, but reversed the decree as to the vessel, and directed that the case as to the vessel be heard ou the merits. See Case No. 10,011.]</p>

<p>Case No. 2,484.</p> <p>Bill of Lading — Deliveky of Cargo — Notice .to Consignee when Vessel is sot Named in the Bill of Lading.</p> <p>1. A bill of lading was executed at Malta, ■on January 2, 1872, acknowledging the receipt there, in good condition, of eighty-five boxes of oranges for shipment to Liverpool, “to be there reshipped on board a Cunard steamer or steamers bound for New York, via Queenstown and (or) Boston,” to be there delivered in like good order and well conditioned, on payment •of certain freight. It also contained a clause that the goods were “to be taken from alongside by the consignee, immediately the vessel is ready to discharge,” or they would be landed and deposited m a warehouse or sent to public store. On the 2d, 3d, or 5th of February, 1872, the consignee named in the bill of lading sent his agent with the bill of lading to the ofiice of the Cunard Steamship Company in New York. He showed the bill of lading to the clerk having charge of the department of inward freight, and asked if the goods named in it had arrived. He was told that they would probably arrive by the Russia, which was to sail from Liverpool on February 3d, and that, on the arrival of any steamer, a list of the cargo .and consignees of goods on board of her was published in the Journal of Commerce. The ■consignee inspected that list on the arrival of the Russia, and not finding his name, sent again to the office, and was told that the goods had not come by the Russia, but, if they were coming, would come by the next steamer. On the arrival of that steamer, his goods were not ■on her, and he sent again to the companv’s ofiice, and was then told that the goods had arrived by the China, which came on the 1st of February. Her cargo list had been published on the 3d of February, and on the 5th of February the goods had been sent to the public store under a general order. Before the consignee learned these facts and applied for his goods, they had been sold to pay storage. The consignee filed a libel against the companv to re■cover their value: Uehl, that the publication of the cargo list of the China was not such a notice to the consignee as is requisite to discharge a ship owner from liability under a bill of lading.</p> <p>[Cited in Unnevehr v. The Hindoo. 1 Fed. 030; The Boskenna Bay, 22 Fed. 005.]</p> <p>2. That, under such a bill of lading as this, which mentioned no vessel, and on such in■quiry as the consignee made, it was the duty of the ship owners to hav* seen to it that he was advised truly as to the arrival of his goods.</p> <p>3. That the ship owners were therefore liable, on the bill of lading, for the value of the goods.</p>

Case [by Eleazer Carver against the Brain-tree Manufacturing Company] for infringement of a patent, dated the 10th of November, 1S39 [and numbered 17], for “a new and useful improvement in the ribs of tbe cotton gin.” Tbe present patent vas a renewed patent, granted upon tbe surrender of tbe original patent [No. 777], dated tbe 12tb of June, 1S3S, wbicb was cancelled on account of a defective specification.

In admiralty. This was a libel on a charter-party. The master of the brig Casco chartered her to the libellant for a voyage to Porto Rico, to carry a cargo of lumber, and from thence to her port of discharge in the United States, touching at Turk’s Island-for a cargo of salt, if required by the charterer. The voyage was performed to Porto-Rico and the cargo delivered. From that place she went to Turk's Island and took a cargo of salt.

<p>Case No. 2,487.</p> <p>Partnership Debts—Following Partnership Property—Rights of Creditors.</p> <p>1. The rule that trust property may be followed into whosesoever hands it comes, with notice of the trust, does not apply to a case where an officer of a bank, being a member of a partnership, without due security, lends to his firm money of the bank, which becomes mingled with the other property of the partnership.</p> <p>[Cited in Case v. New Orleans & C. R. Co., Case No. 2,403; Merchants’ & Farmers’ Bank v. Austin, 48 Fed. 27.]</p> <p>[See note at end of case.]</p> <p>2. Although it is generally true that partnership creditors are to be preferred in the distribution of the property of the partnership, and may follow it, if necessary, when one of the partners attempts to appropriate it to the payment of his individual debts; yet a mere simple contract creditor cannot maintain a suit for this purpose unless the partnership has in some manner gone into liquidation, or its property has been subjected to a trust for payment of debts—as where an assignment has been made in fact or in law.</p> <p>3. Partnership creditors, merely as such, have no lien on the partnership property before obtaining judgment and execution; but can only be subrogated to the lien of the partners, and are therefore without remedy where such lien has been waived by them.</p> <p>[NOTE. Complainant appealed to the supreme court, which affirmed the decree of the circuit court, on the grounds, as assigned by Mr. Justice Story, who delivered the opinion, that the assignments by Graham to the New York bank, by May to the United States, by the United States to Bonneval, Hermandez & Binder. and the act of fusion by which the rights of all the parties became vested in the New Orleans- & Carrollton Railroad Company, had the effect to convert the partnership property into property held in severalty, or at least to terminate the equity of any partner to the payment of the joint debts, and therefore, unless the assignments and the act of fusion were fraudulent, the bank, of which complainant was receiver, had no claim upon the property held by the railroad company, arising out of the fact of its relation of creditor to the partnership; also that there was nothing in the case to impeach the bona fides of the transaction by</p> <p>■which the property become vested in the railroad company, and that the provisions of the Louisiana Code, art. 2823. providing that “partnership property is liable to the creditors of the partnership in preference to those of the individual partner.” created no specific lien upon the property which continued after it had ceased to belong to the partnership. The court further held that, in the absence of satisfactory evidence that the property was purchased with the bank's money, it did not, in equity, belong to. nor was it clothed with a trust for, the bank; and therefore the bank had no specific claim on the property, nor a trust which a court of equity could enforce. Case v. Beauregard, 99 TJ. S. 119.</p> <p>[Complainant subsequently recovered judgment against the defendants Beauregard. May, and Graham for the sum of $237,008.89 (see case on error. Beauregard v. Case, 91 TJ. S. 131), and filed his bill against the same defendants as herein to have the transfers of the partnership property declared void, and to compel the defendant railway company to pay to him as receiver the amount of such judgment, and there was a decree for defendants, dismissing the bill. See Case No. 2,403.]</p>

At law. This was an action on the case tried by Judge Drummond and a jury, to recover damages for the infringement of letters patent [No. 12,231] granted to plaintiff [Jarvis Case] January 17, 1855, and reissued November 1G, 1858 [No. G23], for an “improvement in seed planters.” The claim of the patent was as follows; “In combination with a corn planting machine that is constantly moved over the ground, and drops the grain intermittently, the so combining of two slides, one…

This is a bill in equity [by Charles Case, receiver, against the Citizens’ Bank of Louisiana], and was submitted for final hearing and decree upon the pleadings, evidence, and arguments of counsel.

Case for defamation. The writ averred the plaintiff [Benjamin W. Case] to be a citizen of Massachusetts, and the defendant [Joshua Clarke] to be a citizen of Rhode Island. Plea to the jurisdiction, that the plaintiff is a citizen of Rhode Island, and not a citizen of Massachusetts, as alleged in the writ, and issue thereon. At the trial it appeared, that the writ was dated on the 20th of September, 1S27, and was served on the 30th of the same month.

This is an action by D. IV. Case, R. B. Beals, and H. H. Denton, partners, under the name of Case, Denton & Co., against the defendants, copartners, under the name of Douglas. Brown & Co., to recover for work and labor performed by the plaintiffs’ firm for the defendants. The action was commenced in 1809. in one of tlie state courts of Nebraska.

In equity. This cause was submitted on the bill, pleas, replication and evidence.

<p>Case No. 2,494.</p> <p>Assignment op Patent Right — Recording—Notice — Assignee’s Right in Renewal —Action for Infringement — Declaration.</p> <p>1. It is not essential to the validity of an assignment of a patent right between the parties, or as against strangers, that it should be recorded in the patent office.</p> <p>[Cited in Perry y. Corning, Case No. 11.004.]</p> <p>2. The record is notice to purchasers.</p> <p>[Cited in Perry r. Corning, Case No. 11.004.]</p> <p>3. An ordinary assignment will not convey to tile assignee an interest in the renewed patent.</p> <p>[Cited in Hodge v. Hudson River R. Co., Caso No. 0.550; Jenkins v. Nicolson Pavement Co., Id. 7,273.]</p> <p>4. The renewal is for the benefit of tlie inventor, and an interest in it before tlie renewal must be especially assigned.</p> <p>5. The individual who holds the original right patented, and also an improvement on that right, must assert his entire right in an action for an infringement.</p> <p>[Cited in Gamewoll Fire-Alarm Tel. Co. v. City of Chiliieothe, 7 Fed. 354. Distinguished in Hayes v. Dayton, S Fed. 705.]</p> <p>0. To show a violation of the patent, the declaration need only aver that the defendant has constructed, used, and sold to others, the things patented.</p> <p>rXOTE. For other cases involving this patent. see note to Barker v. Hatfield, Case No. 10.73t>.]</p>

<p>[Appeal from the district court of the United States l'or the district of Vermont.]</p> <p>In bankruptcy.</p>

The case as presented by the pleadings and proofs was substantially as follows: On the 12th of July, 1873, the New Orleans National Banking Association, a corporate body . organized under the national banking act June .3. 1804 (13 Stat. 99), was engaged in the banking business in the city of New Orleans, .and continued to carry on business until the 4th day of October, 1873, when it suspended payment. On the said 12th day of July, 1S73, the defendant.

<p>Case No. 2,497.</p> <p>Maritime Lien — Supplies and Repairs — Ownership op Vessel — Oath against Oath — Attachment against Non-Resident.</p> <p>1. Where a suit was brought against L., as owner of a steamer, to recover for supplies furnished to her in the fall of 1S67. and issue was taken on the question of ownership, and the libellants proved a conveyance of the vessel to him in 1SG3, and an oath of ownership made by him at the custom-house on the same day, and a subsequent oatli to tlie same effect made in November. 1SC7. and tbe answer set up that be bad been compelled to appear in tbe cause by an attachment of tbe vessel as bis property, but tbe defendant, on tbe trial, testified that be never had any interest in tbe vessel whatever: Held, that if the recorded owner of a vessel, who lias sworn that he is her owner, may be allowed to take the position that lie has no interest in her. it is not unreasonable to require that such position should be sustained by some other proof than tbe declaration of tbe party himself.</p> <p>2. That tbe defendant in this case must be held liable as owner.</p> <p>•‘1. The power of the court to issue an attachment against a non-resident of the district, reaffirmed.</p>

<p>Case No. 2,498.</p> <p>Consortship — Proof of Character of Agreement — Nature of the Relation — Termination —Action to Enforce.</p> <p>[1. Agreements of consortship by masters of vessels engaged in the business of. fishing, freighting, wrecking, or the like, unless limited by special understandings when made, are taken to he general, and to extend to all earnings by either vessel.]</p> <p>[2. The burden of proving the restricted character of the agreement rests upon the party alleging it.]</p> <p>f3. The special intention or understanding of either party as to the character of the agreement will not control its operation, unless expressed when the agreement is made.]</p> <p>[4. Such an agreement is for and on account of the vessels, although made by the masters thereof.]</p> <p>[5. In the absence of a stipulation as to the determination of such an agreement, it can only be terminated by voluntary dissolution and notice.]</p> <p>[6. While, by the character of the vessel or the agreement, its interest in the consortship may be small, this will never be presumed, but the general principle that the interests of the vessel control will govern.]</p> <p>[7. The change of owners, master, or crew of one vessel without notice to the other parties cannot affect the consortship.]</p> <p>[S. Persons joining or becoming interested in a vessel during an agreement of consortship enter upon the relation, and assume the risk of profit or loss.]</p> <p>[9. On libel to enforce an agreement of con-sortship, the question being one of considerable interest to the community, and the court being unable to say that respondent’s refusal to pay, thus compelling a resort to the court, was wrong under the circumstances, he should not be charged with the costs, but the same should be ordered paid from the fund in controversy.]</p>

Tlie Fulton Fire Insurance Company of Few York, insured Simpson. Forwell & Co. against loss or damage by fire, to the amount of 83,000, on a stock of goods in their store in Chicago, for the term of one year from tlie 21st of October. 1870; and the defendant company on the same day re-insured the Fulton Fire Insurance Company in the same amount.

Martiu. of Virginia, made an assignment, valid by the laws of that state, of all his. property to Caskie. of that same state, for tlie benefit of such of his creditors as should assent to certain terms set forth in it, and which are not allowed by the laws of Pennsylvania. Several creditors, chiefly of Virginia, assented.

At law. The defendant [William H. Williams] purchased, on the 9th of October, 1840, a negro boy, of the plaintiff [William H. Cas-sedy], at Leesburg, Ya., for 8000. and paid for the boy the amount in “Millington” money. A few days after the sale the Millington Bank failed, and its paper became utterly worthless. The plaintiff sued for the amount.

At law. This was an action [by James W. Cassel against David Dows and Ira B. Cary] on the following bill of exchange: “St. Louis, Mo. March 10th, 1S40. J. W. C. Ninety days after date of this my original bill of exchange, (duplicate of same tenor and date unpaid,) pay to tlie order of Andrew Huston, five thousand dollars, value received, and charge tlie same to account of your obt. se’t, Andrew Huston. To Messrs. Dows & Cary, New-York. (Endorsed.) “Pay W. G. W. Gano.

Bill in equity for an account. The cause was set down by consent of parties upon the bill, answers, exhibits, and admissions of the parties, and was argued by Samuel A. Crapo and Philip Crapo for the plaintiff, and by Searle for the defendant [William Vernon].

<p>Case No. 2,504.</p> <p>Capture by Proscribed Privateer — Subsequext Capture by Duly-Commissioned Privateer — Ouster of Jurisdiction.</p> <p>1. Jurisdiction of the court is ousted in case of capture on the high seas, by a privateer lawfully commissioned, of the property of an enemy to the sovereign issuing the commission.</p> <p>2. The case is not altered though the capture should have been originally made by a proscribed privateer.</p>

The defendant had filed his answer on the 10th of March, 1S31; on the 21st of April, Mr. Brashears moved for leave to file an additional answer, as an amendment to the one filed.

[Action by Henry A. Castle, assignee in bankruptcy of J. B. Perrin, against William Lee.] Perrin, the bankrupt, engaged in the lumber business, and owning a saw-mill and conducting a country store, became embarrassed and sold out his business, including a stock of goods, December 1, 1S7S, to Evans & Bass. According to his testimony he expected to become a partner with the former and one Smytke, and to retain one quarter interest in the concern.

<p>In equity. The Dill states that on the 2d of December, 1810. the defendant, William Mitchel. entered into articles of agreement with the plaintiff [David Castor] and his brother Daniel Castor; by which he bound himself to sell and convey to them, in. fee simple, a tract of land in the state of Few Jersey, belonging to the estate of his testator, John Mason, deceased, for the sum of $10,900; payable, $2,000 on the 1st of April following; $1,000 on the 1st of April, ISIS, and the residue in three equal annual instal-ments. for which a mortgage was to he given on the premises; and a conveyance to be made, and possession to be delivered, on payment of the $2.000. That the plaintiff and the said Daniel Castor gave their bonds to the defendant, for the two sums of $2.000 and $1.000. That on the 10th of April, 1S17, the plaintiff paid off the bond for $2.000, out of his own funds, and that a suit is now depending in the state court on the other bond. That the plaintiff was ready and willing to receive a conveyance of the land according-to the articles of agreement, and to execute a mortgage for seeming the payment of the residue of the purchase money; but that the defendant did not execute a conveyance for the said land, or tender the same. That the-defendant, sometime in the autumn of the year ISIS, executed a deed for the said land to the aforesaid Daniel Castor, excluding the plaintiff, and took a mortgage upon the same from the said Daniel Castor, to secure the payment of the sum of $7,900, being the balance of the purchase money. That the plaintiff of the said Daniel Castor took possession of the land under the articles of agreement, and that the plaintiff continued to hold the possession jointly with his brother, imtil the separate conveyance to his brother above mentioned, when he left the premises. The prayer of the hill is, that the defendant do repay the said $2,000, to the plaintiff, and also deliver up the bond for $1,000 to be can-celled.</p> <p>The answer admits all the charges in the bill, except that the payment of the $2.000 was in separate money of the plaintiff, and that the plaintiff and the said Daniel Castor were ready to receive a conveyance for the-land, and to execute a mortgage for securing the balance of the purchase money. As to the first, the answer states that the money was paid under the contract, and in discharge of the joint bond, and calls upon the plaintiff to prove the fact he asserts; if it be material, as to the second matter not admitted, the answer denies that the plaintiff and his brother were ready in April. 1817, or afterwards, to receive a deed, and to give the mortgage; but on the contrary, they evaded the same, though often urged. That in consequence of this neglect, the defendant conveyed the land to Daniel Castor, as stated in the bill. The defendant put in a plea to the jurisdiction, asserting that the plaintiff was a citizen of the state of Pennsylvania. The plea was argued at the last term, and witnesses then examined upon the point, when the court overruled the plea, but without prejudice to the question of jurisdiction being considered upon the evidence then given at the hearing. The plaintiff gave no evidence that was deemed satisfactory to prove that the $2.000 paid by the plaintiff were from his separate funds.</p> <p>It was contended for the defendant. 1. That the removal of the plaintiff from Pennsylvania, ■whereof from his birth he vas a citizen, to the state of New Jersey, was not a bona fide change of domicil; but that he still continued a citizen of this state in relation to the question of jurisdiction. 2. That the plaintiff having altogether failed to perform his part of the agreement by being ready to accept a conveyance, and to execute a mortgage for securing the balance of the purchase money, he has no equity to claim repayment of the $2.000, even if he had proved that it was his separate money, or to call upon the plaintiff to deliver up the bond for the $1,000 to be cancelled.</p>

<p>Claim for one league of land in Santa Cruz county, rejected by the board, and appealed by claimant.</p>

In admiralty. This was a libel for seaman’s wages. The libellant shipped by- the name of Albert Wright, on the shipping-articles, as cook and steward, for a voyage from New York to Tampico, Mexico, and back to a port of discharge in the United States, on the 3d of Jul3T, 1S07. He went in the vessel to Tampico, and thence to Key Wrest, where the vessel put in in distress for repairs, and where she was detained for some time.

<p>Case No. 2,512.</p> <p>COLLISION BETWEEN SAILING VESSELS — RULES OF Navigation — Lookout — Lessening Effect of Collision.</p> <p>1. A vessel sailing with a free wind is brumd to get out of the way, or steer clear of one close-hauled.</p> <p>2. The neglect to have a “lookout” stationed exclusively for the performance of that duty, and leaving the helm unattended, are reprehensible and serious faults.</p> <p>3. The vessel having the privilege of keeping her course has the right to expect that the other will be steered clear of her.</p> <p>4. When the vessel bound to give way does not to do so in time, the other may be so navigated as to avoid or lessen the effects of the apprehended collision.</p>

<p>[At law. Assumpsit by Hugh Catherwood and others against Loton Gapete and others.]</p>

At law. This was an action of assumpsit [by Charles I. Catlett and James Keith, Jr., against the Pacific Insurance Company of New York], on a policy of insurance, on the cargo of the brig Sphinx. The questions decided arose on a motion for a nonsuit.

At law. This action was brought [by John Gatlin, assignee of John A. Daly] to recover damages for the conversion by the defendant [William Currier], to his own use, of a stock of hats and hatter’s tools, alleged to have belonged to the estate of Daly. On the trial, the court, sitting without a jury, found the following facts: 1.

<p>[At law. Action by John Catlin, assignee in bankruptcy, against John R. Foster.]</p>

<p>[In bankruptcy. Suit by John Catlin, as-signee in bankruptcy, against Mark Hoffman. to set aside a conveyance as an unlawful preference.]</p>

At law. Assumpsit [by John M. Catlin against Samuel Gladding] on a promissory note. Plea to the jurisdiction, that defendant is not a citizen of Rhode Island, as set forth in the writ, and issue thereon. [Judgment for plaintiff.] At the trial it appeared in evidence, that the defendant was a native citizen of Rhode Island; and that his mother (his father being dead) still resided in Providence, in that state, on the family estate.

At law. Assumpsit on a policy of insurance. Plea, the general issue.

<p>[At law. Action by the executor of Lynde Catlin upon promissory notes.]</p>

[At law. Action by the executor of Lynde Catlin upon promissory notes. [For disposition of a question as to the admissibility of certain evidence, which apparently arose in this case, see the next preceding case, No. 2,523.]

<p>In equity. The bill in this case was filed by the plaintiffs [Benoit Julien Caujolle and others], who claimed to be the next of kin of Jeanne Du Lux, deceased, against her administrators [John P. Ferrié and Cyrus Curtiss], for distribution of her estate. The defendants pleaded, in bar of the suit, the adjudication of the surrogate's court of the city and county of New York, determining that Ferrié, one of the defendants, was the next of kin of the deceased. The adjudication was made on a contest between Ferrié and the plaintiffs, as to the grant of letters of administration.</p> <p>[The estate is large, some §70,000, which is principally invested in bonds and mortgages upon property in this state.]2</p> <p>[Previous proceedings had in this case are reported in 4 Bradf. 2S. where the decision of the surrogate, referred to below, is stated. That decision was affirmed.on appeal in 26 Barb. 177, and again in 23 N. Y. 00.]</p>

In admiralty. This was a libel filed by [Peter F. Causey and others] the owners of the schooner Ship Carpenters, to recover the loss occasioned by her being sunk in a collision with the Shark, on the night of Dec. 1, I860. The Ship Carpenters was hound up the coast from the Capes of Delaware, and the Shark was bound down the coast from New York. The testimony was very contradictory as to the facts of the collision. The Ship Carpenters was on the larboard tack.

<p>Upon objections to the recording of a resolution of composition of the creditors.</p>

This was an action brought to recover of defendant, James F. Casey, who was collector of customs at the port of New Orleans, the sum of $532, duties alleged to have been illegally imposed and collected by him from plaintiff. A jury was waived and the cause submitted upon an agreed statement of faets, which sufficiently appears in the opinion of the court.

<p>Case No. 2,530.</p> <p>Judgment —How Assignable — Payment to As-signee — Satisfaction — Defense —Bukdbn of Pkoof.</p> <p>1. In Indiana, judgments are assignable by indorsement on the records of them, attested by the clerk.</p> <p>2. Judgment may be assigned otherwise than of record. But in such case any payment or satisfaction of the judgment made to the assignor before the defendant has notice of the assignment, is valid.</p> <p>3. No agreement for the full satisfaction of a judgment, made in consideration of the payment of a less sum than the amount of the judgment, is a full satisfaction of it.</p> <p>4. On a motion to enter satisfaction of a judgment, nothing can be heard in support of it which might have been set up as a defense to the action' in which the judgment was rendered. But if such defense is omitted to be pleaded to the action, and if it might he the subject of a cross action against the party recovering the judgment, the matter of such defense may, by agreement of the parties, furnish sufficient consideration for a contract between them to satisfy the judgment.</p> <p>5. When a judgment creditor executes a written acknowledgment of the satisfaction of his judgment, and this is duly shown in evidence on a motion for satisfaction to be entered, the burden of proving that such acknowledgment is void for wdnt of consideration or otherwise devolves on the creditor; and if he fails to make such proof, satisfaction of the judgment will be entered..</p>

■ [At law. Action by Cawood, executor of Blaeklock, against Edward Nichols.] Demurrer to the declaration, because it does not state by whom letters testamentary were granted. Cur. ad. vult. See Cliiber-ton v. Trudgeon, Cro. Jac. 500, which seems in support of the demurrer. Quaere, whether there is not a difference between letters testamentary and letters of administration. See Graysbrook v. Fox, Plow. 279; Temple v. Temple, Cro.

Libel in admiralty in a cause of salvage. The libel in this case was filed by John W. Hall and others against the bark Cayenne, of Bordeaux.

Bankruptcy. The bankrupt [C. L. Hol-brook] was a clerk who had sometimes speculated in merchandise through the agency of his friends R. H. Green and Sons, merchandise brokers, of New York. On the 29th July, 1S6S, Messrs.

In admiralty. This was a libel for collision filed by the Hoboken Land and Improvement Company, owners of the ferry-boat [James Watt], to recover damages for a collision between her and the Cayuga. The court held the Cayuga in fault. [See Case No. 2,536.] On the reference to ascertain the damages, it appeared that the libellants themselves repaired the boat. Exceptions were taken to the report of the commissioner.

<p>Case No. 2,536.</p> <p>Collision in Hudson Rivek — Fekbv Boat and Steamboat — Vessels Crossing.</p> <p>1. Where a steamboat was coming down the Hudson river, and approached the track of a ferry boat which was crossing from Hoboken to New York, and stopped her engine, but started it up again when the ferry boat was directly ahead of and close to her, and struck the. ferry boat on her port quarter, and the pilot of the steamboat testified that he made no attempt to swing his bow to starboard, although a swing of ten or fifteen feet would have carried him clear, and excused his doing nothing by saying he had not time to do anything, while other witnesses testified that he did shift his wheel and was swinging to west at the time of the blow. Held, that the ferry boat, upon seeing the steamboat stop her engine, was entitled to consider that she intended to allow the ferry boat to pass her bows, and to act accordingly. The ferry boat was therefore free from fault in keeping on.</p> <p>2. The starting of the steamboat’s engine again in such circumstances, was a fault on her part.</p> <p>3. If the pilot’s excuse for not sheering be held good, it shows the vessels in such dose proximity as to make clearly manifest the impropriety of his starting the engine. If it is not held good, then he was in fault in not attempting to sheer; and if, as stated by other witnesses, he did sheer, his statement, on which the claimant chiefly relies, is discredited.</p> <p>[NOTE. For decision overruling the commissioner’s report as to damages, see Case No. '2,535. The Hudson River Steamboat Company. claimant, appealed to the circuit court, where the final decree of the district court was ■affirmed. See Case No. 2,537. From the decree of the circuit court the claimant appealed to the supreme court, which affirmed the decision of the circuit court. The Cayuga v. Ho-boken Land & Imp. Co., 14 Wall. (81 U. S.) 270.]</p>

<p>[In admiralty. Libel by the Hoboken Land & Improvement Company, owner of the steam ferry-boat James Watt, against the steamer Caynga to recover damages caused by collision. There was a decree for libel-lants in the district court (see Cases Nos. 2,-535 and 2,536); and the Hudson River Steamboat Company, claimants of the Cayuga, appeal.]</p>

At law. This was a replevin, to recover a quantity of goods saved from the wreck of the Julia. The following case was agreed to stand for a special verdict The schooner Julia, owned by the defendant, and laden with a cargo of merchandise, departed from Bordeaux on the 23d of February, 1813, bound for Philadelphia.

<p>[In bankruptcy. In the matter of Hezekiah B. Cease.]</p>

In admiralty. This vessel was attached by the marshal, in pursuance of process issued from this court, upon the libel herein filed, praying a condemnation and sale, to satisfy the demand of this libellant, for materials furnished and work done, in necessary repairs at the port of Racine within this district.

<p>Case No. 2,542.</p> <p>Collision- Off Long Island — Steamer and Sohoonek — Pouting Helm — Damages bt Stranding after Collision.</p> <p>1. A schooner, heading about east southeast, on her starboard tack, with the wind from the south, on a bright starlight night, discovered a steamer’s lights about two points on her port bow, and kept her course till a collision between the vessels was inevitable, when her helm was put to port. The steamer discovered the two colored lights of the schooner at from one and a half to two miles’ distance, half a point on her starboard bow, and her helm was at once ported. The port bow of the steamer struck the port bow of the schooner, and carried away all the rigging on that side, so that she could not be brought up into the wind, for fear of losing her masts, and she was anchored, and the next morning went ashore on Long Island: Held, that, as the schooner did not change her course till the collision was inevitable, she was free from fault, and. no excuse having been shown by the steamer for not having avoided the schooner, the steamer must be held liable;</p> <p>2. The manoeuvre of the steamer, in porting her helm, was faulty. Under the circumstances, she should have starboarded;</p> <p>3. The steamer was liable for the damages, including those consequent upon the stranding of the schooner.</p>

<p>In equity. The allegations of the hill were, in substance, as follows:</p> <p>(1.) On the 7th of June, 1S64, letters patent were issued to John A. Cummings for “an improvement in artificial gums and palates!” Such letters were reissued on the 10th of January, 1805, and again on the 21st of March, 1863, and, by assignment, the same are now the property of the defendant.</p> <p>(2.) After becoming such owner, the defendant commenced a great number of suits against dentists, in the various courts of the United States, for alleged infringement of the said letters patent, and which suits are still pending and undetermined in the circuit courts of the United States.</p> <p>(3.) On the 12th of June, 1870, letters patent No. 105,33S were issued to John W. and Isaiah S. Hyatt, for an “improvement in treating and moulding pyroxyline.” The same were surrendered and reissued June 23d, 1874, as No. 5,928.</p> <p>(4.) This substance is useful, among other purposes, ás a holder for sets of artificial teeth.</p> <p>(5.) On the 28th of March, 1S71, letters patent 113,035 were issued to the Albany Dental Plate Company, as assignees of Hy-atts and Perkins, an “improvement in dental plates from pyroxyline.”</p> <p>(6.) The plaintiff is the holder, by assignment, of said letters Nos. 5,92S and 113,055.</p> <p>(S.) The plaintiff is largely engaged in manufacturing blanks, to be used as holders for teeth, under said patents. The substance produced under the patents the plaintiff denominates “celluloid,” and the plaintiff is selling large quantities of such holders throughout the United States, together with licenses to use the same.</p> <p>(9.) The said rights were of great advantage to the plaintiff until interfered with and infringed by the defendant; and its rights have been acquiesced in and recognized by the public generally, and the plaintiff has invested a large amount of capital in the business, which will become valueless unless its exclusive character can be sustained.</p> <p>(10.) Of the great number of suits brought as aforesaid by the defendant, for alleged infringement of its patent, the great majority have not been defended; but the defendants therein have allowed decrees pro con-fesso to be taken against them, and the same are still pending before masters, under the usual order of reference.</p> <p>(11.) In none of said suits has the defendant averred in its bills that the use of celluloid, as a substitute for a vulcanite plate, is an infringement of the Cummings letters patent, nor, except in two instances, have the defendants in such suits ever pleaded that the use of celluloid was not such infringement; nor has such fact, or the question of law involved therein, ever been presented for legal decision, except as hereinafter stated.</p> <p>(12.) In a suit against one Wolf, commenced in 1S72, in an affidavit and answer filed in opposition to a motion for an injunction, Wolf alleged that he used metal or celluloid bases, and that the same were not an infringement of the plaintiff’s patent. The court made an order that the defendant be restrained from the use of vulcanite artificial gums and palates, and that the plaintiff have leave to amend its bill. No amendment was ever made, but, as unamended, the bill was, on the 13th of July, 1875, taken as confessed.</p> <p>(13.) In July, 1S75, the defendant and one Josiah Bacon commenced an action against one Eben M. Flagg, upon a printed bill in substance like that in the suit against Wolf and the other suits referx-ed to, containing no allegation that the use of celluloid blanks was an infringement of the Cummings patent. Annexed to the bill was a copy of the specification of 118.055, various affidavits, and a copy of the deposition of Henry J. Fisk, given in a suit of Goodyear Dental Vulcanite Co. v. Preterre [Case No. 5,595], and sets of celluloid teeth and of vulcanite teeth. There was, also, upon all of these papers, a notice of motion for preliminary injunction. Flagg had purchased his celluloid blanks of the plaintiff, and was using them in his business. The plaintiff assumed the defence of Flagg’s suit, to the knowledge of the defendant. The motion was heard upon the issue presented by the letters patent of the plaintiff and defendant in this suit, and, on the 7th of December, 1875, Judge Blatchford made an order denying the motion, on the ground that it was not sufficiently clear that the defendant’s process-was embraced in the plaintiff’s claim, to warrant the granting of an injunction, until one should be granted as the result of a final hearing of the case. Certain allegations were made by the present defendant on the application, that proofs in a suit against William H. Dwinelle were on file, and that they were identical with the proofs taken in a suit against Daniel H. Smith, and that the record against Smith constituted a part of the proofs on that motion, and that the question of the conflict between the patents now in question would thus be presented as a question of law, and plaintiff, supposed the suit against Flagg would be proceeded in, and the question now at issue would thus be presented for decision, but, on the 23d of December, 1875, the plaintiff in that suit discontinued it by an order, reciting as reasons, that Flagg had demurred to the bill on account of the misjoinder of Bacon as a plaintiff therein, and also the great pressure of business and delay of hearing in this circuit court.</p> <p>(14.) Such discontinuance was not made for the reasons mentioned, but was illusory, and to prevent the entry of an order on Judge Blatchford’s decision, to prevent a final hearing, and to enable the defendant to initiate a new means of harassing the dentists who purchased under the plaintiff’s patent, and to restrict and impair the plaintiff’s income therefrom.</p> <p>(15.) Since Judge Blatchford’s decision, the defendant has caused notice to be given to the dentists using the celluloid blanks, not to use the same; that such use was an infringement of the Cummings patent; and that, if persisted in, such persons would be prosecuted as infringers. Such notice was given to dentists residing in various states and circuits, who communicated the same to the plaintiff, asking protection against such claim, and this plaintiff has agreed to afford such protection. To do this would involve the plaintiff in a multitude of suits in various circuits, would subject it to great expense and annoyance, and would practically involve such enormous costs as would render the plaintiff’s patents valueless.</p> <p>(1G.) Since Judge Blatchford’s decision, the defendants have moved in the circuit courts in Maryland, Pennsylvania, and Michigan, for references to masters, and commenced the taking of accounts in suits in which the defendants have suffered the bill to be taken pro confesso. Such defendants are not of sufficient ability to defend such suits, but yield a ready assent to any request that may be made of them, the infringement being ostensibly proved and admissions procured in evidence of the Preterre suit and also of the Smith suit in Massachusetts. In a suit brought by defendant and Bacon against Jared Kibbee, the master made his report, which contains, among other things, an admission of the printed record in the Preterre case referred to, and reports damages to the amount of $220. The plaintiff had no knowledge of the Kibbee suit. Kibbee was not represented by counsel, was ignorant of his rights, and the evidence by the said records, and also of the celluloid blanks which he had used, was illegal and incompetent. The only question ref erred to the master was, whether Kibbee had sold vulcanite dental plates in infringement of the Cummings patent, and the question whether the use of celluloid blanks was an infringement of the Cummings patent was not passed upon prior to the order of reference, and was not referred to the master; and whether the use of celluloid did constitute such infringement, could only be passed upon at the final hearing in a suit brought for that purpose.</p> <p>(17.) In another suit,' brought by the same parties against one Hoopes, in Maryland, he allowed a decree to go against him for the use of vulcanite dental plates. He had been, and, so far as plaintiff knows, was, at the time of instituting said suit, an agent of the defendant, and a stockholder in its company. Hoopes was summoned to appear before the master. The plaintiff’s counsel attended at the day appointed, and found that Hoopes had, on the previous day, consented to the admission of the records in the Preterre and Smith cases. Plaintiff’s counsel then stated to the master the position of the case, whereupon the said Bacon, who was present, stated that they would make no claim against the defendant for the use of celluloid blanks, and an entry to that effect was made in the proceedings.</p> <p>(18.) The Preterre suit was commenced in December, 1874, for his having manufactured, used, and sold vulcanite dental plates. Pre-terre was defended by counsel not of plaintiff’s employment, who were not acquainted with its rights, nor with the facts in relation to celluloid, as hereinbefore stated, and who made defence solely on the ground of the invalidity of the Cummings patent; and they did not bring in issue the question between celluloid plates and vulcanite plates. Fisk was examined as a witness. Preterre endeavored to establish that the plates he used, which were testified to be vulcanite, were in truth celluloid, and on this point Fisk was examined as a witness. Preterre afterwards abandoned his attempt to prove a similarity between the two substances, and, in June, 1S75, he requested Hyatt to appear as a witness in his behalf. Renwick was afterwards examined as a witness against Preterre, and this plaintiff requested its counsel, Mr. Baldwin, to appear and cross-examine him; and this plaintiff made no other appearance in that case than that one of its counsel conducted such cross-examination. Preterre did not assume to present the right under this plaintiff’s letters patent, nor the state of the art. The defendant’s counsel in that case was also induced to admit in evidence the record in the Smith case.</p> <p>(19.) The production of the Preterre record before the master is for the purpose of establishing an identity between the vulcanite and the celluloid plates, and the introduction of the same under the pretence that this plaintiff was a privy to the same, is a fraud and an attempt to create a belief that that record is a full presentation of this plaintiff's case, and an attempt to gain an unjust advantage.</p> <p>(20.) This defendant caused the record in the Kibbee case, after Kibbee had consented as aforesaid, to be printed continuously with the Preterre case, and to be served upon Mr. Baldwin, this plaintiff’s counsel, for the purpose of binding this plaintiff thereby; and similar proceedings have been taken in other cases.</p> <p>(21.) The legal rights of the plaintiff, as herein averred, have not been properly presented to any tribunal, save in the Flagg case, and an attempt to create the impression that they have been before the court is unfounded. This plaintiff has offered to waive the misjoinder of Flagg, and has requested this defendant to proceed in that suit, which it refuses to do.</p> <p>(22.) By other suits plaintiff is needlessly subjected to great loss in conducting the same, and in loss of revenue; and, by reason thereof, many dentists are deterred from purchasing celluloid blanks, and thereby this defendant obstructs and retards the plaintiff in the legal use of its exclusive privilege.</p> <p>(23.) The defendant claims that the celluloid blanks are an infringement of its patent, and that it has a legal right to arrest the manufacture of t the same. The plaintiff avers and insists that such claim is unfounded.</p> <p>(24.) The plaintiff is lawfully engaged in prosecuting the said business, and its right is invaded aiid infringed by the written and verbal threats of the defendant to prosecute those who make purchase of said blanks, and by its illegal prosecution of such multiplicity of suits, and by giving notice of its intention to hold responsible those who use the celluloid blanks, by reason whereof the plaintiff is injured in its business.</p> <p>(25.) The Cummings patent is void for the various reasons set forth.</p> <p>(2G.) The rights of the parties are solely under the patents referred to, and depend upon -whether the Cummings patent is valid, and. if so, whether the same interferes with the letters patent of the plaintiff; and such questions should properly be decided in a suit between the owners of the respective patents.</p> <p>Wherefore the plaintiff prays: 1: That this court will entertain jurisdiction of this suit, to determine whether the Cummings patent is valid, and, if it is, whether the defendant is entitled to interfere with the celluloid dental blanks, as an infringement thereof; 2. that, in case it shall be held that celluloid is not an infringement of the Cummings patent, a final decree be entered, enjoining the defendant from commencing or prosecuting any actions against this plaintiff, or any dentists purchasing celluloid blanks from it; 3. that, in the event of such decree, an account may be taken of the profits it has made by such obstruction and interference with the plaintiff’s business, and of the profits it has made by the sale of vulcanite plates to those who had theretofore been the customers of the plaintiff in the use of celluloid blanks, and of the profits which the defendant has made and the plaintiff has lost by means of the acts aforesaid; 4. that a preliminary injunction may issue restraining the defendant and its agents, during the pendency of this suit, from making threats of prosecution for using celluloid blanks, or sending letters or circulars cautioning against the use of celluloid blanks, and from proceeding in any suit now pending for the use of celluloid; 5. for costs and such other or different relief as to the court may seem meet; 6. for a subpoena in the usual form, and for a preliminary injunction during the pendency of this action, as hereinbefore prayed for. The defendant demurred to the jurisdiction of the court, setting forth the following causes: 1. The bill is filed by a citizen of New York against a citizen of the same state; 2. the United States are not parties plaintiff, or petitioners; 3. the suit does not arise under the constitution or laws of the United States; 4. the bill is not brought in the name of the United States, or its attorney general; 5. the bill contains no equity whereon relief can be given; 6. the plaintiff has an adequate remedy at law, if the facts stated in the bill constitute any cause of action.</p>

<p>Case No. 2,544.</p> <p>Collision in the Kills — Tuo and Tow — Vessel at Anchor.</p> <p>1. A schooner lying at anchor in the Kills was struck by a bavgs which was being towed by a propeller. The tide, which was flood, gave the barge a set towards the schooner. The propeller. in defence, set up that the barge was not properly steered after the propeller, which passed the schooner at a proper distance. The barge, in defence, set up that she followed the propeller, which went close by the schooner, and that the schooner took a sheer in the tide and ran into the barge: Held, that the allegation of the barge, that the schooner sheered, was not proved.</p> <p>2. The allegation of the propeller, that the barge was not steered after the propeller, was not proved.</p> <p>3. As the tide set the barge towards the schooner, the propeller should have taken great care not to go so near the schooner that a sheer of the barge might carry her into the schooner.</p> <p>4. The propeller was in fault in going too close to the schooner, and in not keeping a proper lookout astern, and was solely liable for the collision.</p>

[In equity. Bill by the Centennial Board of Finance against Joseph Patterson, Henry Lewis, John Gill, George Eyster (assistant treasurer of the United States at Philadelphia), the National State Bank of Camden, the International Exhibition Company, and the State of New Jersey, to determine the disposition of moneys remaining in its hands.]

An injunction was asked for to restrain the defendants, who, it was alleged, were about to issue a catalogue of the exhibitors at the Centennial Exhibition at Philadelphia.

<p>Case No. 2,547.</p> <p>Bankruptcy — Restraining Assignee from Prosecuting Suit in State Court.</p> <p>A petition was filed by a creditor to restrain the assignee in bankruptcy from prosecuting a certain action of law in the supreme court of New York state to recover the payment of money made contrary to the provisions of the thirty-ninth section of the bankrupt act, [14 Stat. 530]. claiming to recover back the amount so paid. Sold, that said act is the law of the state courts as well as of the national tribunals, and if by virtue of that act the state court has no jurisdiction in the action brought against the petitioners, it will so decide upon proper plea and that no reason appears to compel the as-signee to resort to the national tribunals instead of those of the state.</p> <p>| Cited in Payson. v. Dietz, Case No. 10,861.]</p>

The Central Bank of Brooklyn was adjudged a bankrupt on October 27th, 1S70, and S. B. Dutcher was thereafter duly appointed assignee. On the 1st day of August, 1S70, Joseph H. Havens, the petitioner herein, deposited in the bank a check for 83.125. On the 2d day of August, an injunction was issued against the bank as being insolvent, and a receiver was appointed. On the 3d of August, Havens demanded the return of the check, which was refused.

[At law. Action by the Central Ohio Railroad Company and the Steubenville & Indiana Railroad against Harrison Thompson, upon certain drafts given in payment for the transportation of stock for Thompson and Groom. The action was commenced in the state coart, and was removed to the federal court by the defendant. In the latter court, complainants, having first obtained leave, filed a bill in chancery as a substitute for the petition filed in the state court.

This is a demurrer [by the defendant, Adolphus Benity] to a complaint in ejectment.

This was a bill to quiet the title of the plaintiff to a portion of the land granted to it by congress in the territory, now state of Nevada, as a right of way for the construction of its railroad. The plaintiff was incorporated by the state of California in June, 1861.

objected to a deposition taken under the act of congress (1 Stat. 73), that the magistrate did not certify that the deponent subscribed it in his presence, but that he subscribed it after it was reduced to writing by the magistrate.

In admiralty. This was a libel in per-sonam against the master of the brig Frances Ellen for salvage. The libellant shipped on board the brig at Portland, September 3. 1S37, for a voyage to the West Indies and back to the United States, in the capacity of cook and steward.

<p>Case No. 2,556.</p> <p>Discharge in Bankruptcy.</p> <p>A voluntary bankrupt whose assets are not equal to thirty per cent, of the claims proved against his estate, upon which he was liable as principal debtor, and who has not obtained the consent of one-fourth of his creditors in number and one-third in value, is not entitled to his-discharge under the bankrupt act, as amended June 22, 1874 [IS Stat. 180].</p>

<p>Case No. 2,555.</p>

[In admiralty. Libel for salvage, by Thomas Franklin and others against the cargo and materials of the ship Cerro Gordo.]

[Appeal from the district court of the United States for the district of Massachusetts.] In admiralty.

<p>Case No. 2,560.</p> <p>Mexican" Grants — Validity — Conditions — Limits op Mission — Within Littoral Leagues.</p> <p>1. A grant by the political chief for the time being of Alta California, was not invalid, though it did not receive the previous approbation of the territorial deputation. The grant conveyed a present and immediate interest, and the neglect to obtain such approbation, if it were the duty of the grantee at all, would have been only the breach of a condition subsequent, by which the title was not forfeited.</p> <p>2. In the same manner, conditions in such a grant, that the grantee should build and inhabit a house within a certain time, and also obtain judicial possession of the land, are conditions subsequent; and where, in a particular case, after the time limited, the grantee actually took possession of the premises, and had lived on them and cultivated them for three years, when he obtained judicial possession, which he maintained till the time of suit, a period of twelve years, it was held that the title had not been forfeited.</p> <p>3. It is also no objection to such a grant (made in 1S3G) that the lands comprehended by it were within the limits of a mission.</p> <p>[See not at end of case.]</p> <p>4. It is, finally, no objection to such a grant, that the land was within ten leagues of the sea-coast, and that the approbation of the supreme executive did not appear to have been obtained.</p> <p>[See note at end of case.]</p> <p>[NOTE. The United States appealed from the decree of the circuit court to the supreme court, where the decree below was affirmed on the grounds, as appears from the opinion delivered by Mr. Justice Grier, that under the decision in U. S. v. Reading, 18 How. (59 U. S.) 1, the objection that the grant had not been approved by the departmental assembly was untenable, as was likewise the objection that the land was within the 10 littoral leagues, — that restriction applying to foreign colonists, and not to Mexican citizens, — following U. S. v. Arquello, 18 How. (59 U. S.) 539; also, that the tracts appurtenant to missions never vested in the church or any one else by legal title, and that the lands, though formerly occupied by a mission, were not so occupied when the grant was made, the grant having been made with the assent of the mission, which set up no further claim to occupancy; therefore, that the 17th section of the regulations of 1828, forbidding the grant of lands “occupied” by missions for colonization, could have misapplication to unoccupied lands not made the subject of colonization. U. S. v. Cervantes, 18 How. (59 U. S.) 553.]</p>

In admiralty. This was an action brought by the owners of the brig Homely to recover as damages a sum the Homely was ordered to pay as salvage. See the case of The Homely [Case No. 6661].

<p>Case No. 2.563.</p> <p>Collision in Long Island Sound—Sailing Vessel aud Steam Eli.</p> <p>Where a schooner, the P., closehauled on a N. N. W. breeze, met a tug, the C. F. A., with thiee barges in tow, nearly head on, and keeping her course came in collision with the tow: Ht let, that the facts proved showed the tug to have been unable to change her course as required by rule 20 of the navigation rules (Rev. St. § 4233), but that she was in fault for not making known such inability to the schooner by the hoisting two vertical lights as required by rule 24.</p> <p>[Cited in The Rose Culkin, 52 Fed. 330.]</p>

[In admiralty. Libel by the owners of the brig Homely to recover of the C. F. Acker-man damages arising from a breach of contract of towage. There was a decree for libellants in the district court (Case No. 2,-562), and the claimants appealed, to the circuit court, where its decree was affirmed (case unreported). The libellants now seek a summary judgment against the stipulators in the district court.]

<p>Case No. 2,566.</p> <p>Mexican Land Grants — Validity.</p> <p>This claim must be confirmed under the ruling of the supreme court in Fremont’s Case [Fremont v. U. S., 17 How. (58 U. S.) 542.]</p> <p>Claim [of the heirs of Anastasio Chabolla] for eight leagues of land [called the Rancho Saujon de los Moquelemes], in San Joaquin county, rejected by the board, and appealed by claimants.</p>

<p>Case No. 2,565.</p> <p>Collision in East River — Damage Wiiile in Sinking Condition.</p> <p>Where a ferry-boat, already in sinking condition from collision with another boat, in attempting to go into her dock, came in collision ■willi a. canal boat in tow of a tus. and after-wards sank: Eeld, that as the sinking condition •of the ferry-boat was an inevitable result of the ■first collision, and the loss which resulted was not increased by the second collision, the question whether the tug or the ferry-boat was in fault was immaterial.</p>

In equity. Final hearing on pleadings and proofs. Suit brought [by Cyprien Chabot] ■on letters patent [No. 77,715] for an “improvement in sewing-machines” granted to Cyprien Chabot, March 12, 1868.

[Appeal from the district court of the United States for the district of Virginia.] In admiralty. This was a libel, originally filed in- the district court of Norfolk, by the consul of Spain, in April 1S17, against eighty-nine bales of cochineal, two bales of jalap, and one box of vanilla, formerly constituting part of the cargoes of the Spanish ships.

<p>In bankruptcy.</p>

Petition for an attachment by the assessor of internal revenue for the third collection, district of Massachusetts, within which the respondent resides; alleging that the respondent [J. H. Chadwick] was a shareholder in an incorporated company, called the Boston Lead Company, of which he was likewise treasurer and agent, having charge and custody of the books of said company; that the respondent rendered his income return for 1SG9, and was duly assessed thereon: that the…

<p>Case No. 2,571.</p> <p>Action fob Breach of Charter Party — Proof of Damage — Penalty—Estimated Profits.</p> <p>[1. In an action on a charter party, for a breach thereof, by reason of the refusal of the master to commence the voyage, nominal damages only are recoverable, where the libellant fails to prove some actual damage suffered, notwithstanding the agreement binds the parties to a penalty for its breach.]</p> <p>[2. The sum mentioned in the penal clause of the instrument will be regarded as a penalty, and not as liquidated damages.)</p> <p>[3. The due performance of the voyage being subject to many future contingencies, estimated profits cannot be computed as an element of damage. The Tribune, Case No. 14,171, followed.]</p>

In equity. Sur motions for injunction against a sale by Ooggshall, United States marshal, of certain bank and manufacturing stocks levied on as the property of William Sprague, Amasa Sprague, and Edwin Hoyt, respectively, in virtue of an execution issued from the circuit court in favor of James v. Atlantic Delaine Co. [Cases No. 7,177 and 7,178]. Tillinghast & Thurston (with whom were Gardner & Hart), for Chafee and Mrs. Sprague.

On motion for a temporary injunction Edwin Chaffin, a citizen of the state of Massachusetts, and the owner of one hundred and twenty-five shares of the capital stock of the St. Louis Gas Light Company, files his bill of complaint on behalf of himself and all other stockholders of said company against the city of St. Louis, the St. Louis Gas Light Company, and each of the directors thereof, as also the Laclede Gas Light Company.

This is a bill in equity by complainant, a citizen of Massachusetts, and the owner of one hundred and twenty-five shares of capital stock in the St. Louis Gas Light Company, on his own behalf and that of other stockholders who may join him, against the St. Louis Gas Light Company and the directors thereof, and the Laclede Gas Light Company, and the city of St. Louis, to procure the cancellation of certain contracts, to which said corporations are parties. 4 Dill. 19 [Case…

[In equity. Bill for injunction by Chal-mers Spence Patent Non-Conductor Company against William H. Cramp and others for the alleged infringement of letters patent No. 55,598, granted to John Ashcroft June 19, 1866.]

This was a libel in the admiralty, brought by the libellants, (being husband, wife, and children,) who were passengers on board of the ship Pearl, on a voyage from the island of Woakoo to Boston, against the defendant, who was master of the ship, for the voyage, for damage, for asserted ill-treatment and injuries to them during the voyage. The defendant put in, by way of answer, an allegation denying the ill-treatment and injuries.

Suit upon a promissory note by an as-signee, the declaration alleging that the plaintiff is a citizen of Vermont, the assignor a citizen of Missouri, and the defendant a citizen of Illinois. Defendant pleaded pend-ency of a former suit — replication that said suit had been dismissed. Demurrer to replication filed and overruled. See preceding case [No. 2,57G].

On the 3d day of March, 1857, congress granted to the territory of Minnesota, lands to aid in the construction of certain lines of railroads therein. 11 Stat. 195.

[In equity. Bill by. Julia L. Chamberlain and others against Huldah L. Stanton and others to recover moneys received by the latter from the United States, as the proceeds of the sale of alleged captured and abandoned property, which property in fact had belonged to plaintiffs. Defendants demurred for want of equity.]

<p>[In bankruptcy. In the matter of John S'. Chamberlin.]</p>

In equity. Pinal hearing on pleadings and proofs. Suit brought [by Maris Chambers against Frederick V. Smith and Stephen G. Smith] upon letters patent [No. 40,221] for an “improvement in brick machines,” granted to Cyrus Chambers, Jr., October 6, 1863.

[In admiralty. Libel by Thaddeus Chambers and others against the sloop Henry Kneeland.] Motion [by the claimants] for security for costs and to dismiss libel for want of prosecution.

<p>Case No. 2,582a.</p> <p>Salvage — By Pilots — Towing Abandoned Vessel.</p> <p>[Pilots jvho take charge of and tow into port an abandoned ship, at the request of the vessel which has been towing her, render pilotage, towage, and salvage service, and are entitled to a greater compensation than the usual pilot-age fees.]</p> <p>[Cited in The Philah, Case No. 11,091a.]</p>

In admiralty. This was a libel in rem by James O’Leary for wood supplied the tug Champion by the libellant at Lampton, on St. Clair river, in the province of Ontario, in October and November, 1S71. The tug was a vessel of the United States, and owned and registered at Detroit, in this district. The li-bellant was a citizen of Ontario and a subject of Great Britain.

In admiralty. The libel claimed for services as seaman and cook for one year, at the rate of sixteen dollars per month, but it appeared that, after the close of navigation and until libellant was discharged, his services were those of a shipkeeper.

The plaintiff [Christopher Gibbs Champ-lin, as executor of Christopher Champlin] in his declaration stated “that at New Port the defendants [James Tilley and William Tilley], by said William Tilley, purchased of said deceased a quantity of hemp, to be manufactured at their rope factory in New London, on a credit of four months, and to secure payment thereof the defendants, at said New Port, by said William Tilley, one of said firm and company, and then joint mechanic and…

At law. Assumpsit for money had and received. The case came before the court upon a statement of facts agreed upon by the parties. It was as follows: The plaintiff [John Champney] was a weigher and gauger in the custom house at Boston, before and from January 1st, 1S38, to March 31st, 1841. The defendant [George Bancroft] was collector during that period.

[In admiralty. Libel by the owners of the schooner Bride against the ship Chancellor for damages for the loss of the schooner by collision.]

[The question in this case arises on the report of H. N. Hibbard, Esq., one of the registers of this court, on an application by the assignee of the bankrupts lor an order to expunge the claims of the parties named, as well as a large number of other claims, depending on substantially the same facts.

Petition in invitum beard by the court on an agreed statement of facts with some supplementary evidence admitted by consent. The defendant was a member of the bar, but had of late retired from active practice and carried on, among other things, a steam sawmill, in which he prepared, by his agents, boards and shingles from lumber grown on his own land, and sold them in the market.

<p>[In admiralty. Libel in rent by Stephen Chandler against the ship Annie Buckman, for wages.]</p>

<p>Case No. 2,592.</p> <p>Municipal Aid Bonds — Validity—Toll Bridge.</p> <p>[NOTE. The supreme court in County Com’rs v. Chandler, 96 U. S. 205, answered in the negative the first and third questions certified to them, held that the second question was immaterial, and affirmed the judgment of the district court sustaining the demurrer. An application to the supreme court of Nebraska for a mandamus to compel the board of commissioners of Dodge county to meet and levy a tax on all the property in Fremont precinct, in'said county, to pay the judgment recovered by plaintiff in the circuit court, was subsequently denied. State ex rel. Chandler v. Dodge Co., 10 Neb. 20, 4 N. W. 370. The state decision is cited in Osborne v. County Com’rs of Adams Co., 7 Fed. 443.]</p>

<p>In error to Pulaski circuit court.</p>

[Appeal from the commissioner of patents. [On interference. Application by Thomas A. Chandler for a patent for a level having a graduated circle with a rotary pointer. Interference declared with patent No. 7,263, granted to William G. Ladd, Jr., April 9, 1850, and with the claim of Samuel Reed for invention of a similar level.

Action at law. The plaintiff alleges that he is the receiver of the Lamar Insurance Company, of Illinois, appointed by a court of chancery, in Chicago, in a suit in which two persons who are named were plaintiffs, and the said insurance company was defendant—the exact nature of which does not appear. It is alleged that the said company had, before said suit in Illinois was brought, become insolvent and ceased to do business.

Bill by the administrator of one Chaney, deceased, to obtain a certain certificate of indebtedness for $23,514.70. Tne defendant, Basket, claims that sixty days before his death, Chaney, in full possession of all his mental faculties, but in apprehension of death from a disorder with which he was then suffering, with his own hand wrote and signed the following certificate, to wit: “Pay to Martin Basket, of Henderson, Ky., and no one else, then, not till my death.

In admiralty. This libel was filed by [Chester W. Chapin] the owner of the steamboat Traveller, to recover the amount of damages occasioned to her by a collision with the schooner on the morning of the 20th of November, 1853, about the break of day, near Riker’s island. The Traveller was on her regular trip from New Haven to New York, and the schooner was bound through the Sound from New York.

[In admiralty. Libel by Charles E. Chapin and others, owners of the brig Tornado, against the schooner Hattie Boss, for damages sustained by collision.]

<p>Case No. 2,599.</p> <p>Contract — Right to Abandon — Damages for Breach — Account Stated.</p> <p>1.Under a contract made by the complainants with the defendants, the complainants agreed to purchase all the lumber sawed by the defendants on Grand river, on the terms specified, taking it at the mill and transporting it to Chicago, &c. Among other conditions, the complainants agreed to furnish supplies for the hands of the defendants. &c., which, after about a year, they refused to do; on which the defendants abandoned the contract.</p> <p>2. Where one party refuses to do a certain thing, under the contract, which was necessary to enable the other party to perform his part of the contract, he may abandon the contract. And in such case the party first refusing, is liable to the other for damages.</p> <p>3. But such damages must be limited to the immediate consequences resulting from the refusal to perform the contract, and cannot extend to probable profits which might have been realized if the contract had been carried out.</p> <p>4. The party who abandoned the contract on the failure of the other party to perform in a material part, is not liable for damages.</p> <p>5. A large quantity of the lumber being in possession of the defaultingparty, it would seem that he, having repudiated the contract, cannot, after-wards claim the benefit of the contract, in disposing of the lumber on hand. Under any circumstances he would be entitled to a reasonable compensation for selling the lumber.</p> <p>6. In the process of a continuing contract, if accounts are received and adjusted without objection, it is too late to make an objection at the trial.</p> <p>7. And where an inconvenience is suffered by the delay- of the other party, notice should be given.</p>

<p>Case No. 2,600.</p> <p>Bill of Ladino — Parol Evidence —Proof by Agent — Notice to Produce — Proof of Documents —Depositions—Trover—Demand — Conversion — Unauthorized Sale by Consignee.</p> <p>1. An agent is a competent witness to prove what he did as agent. The court held that a bill of lading could not be contradicted by parol. But, that evidence might be given that the consignee had notice that the goods belonged to a person different from the person named in the bill. And that a corrected bill of lading was forwarded to the consignee.</p> <p>2. Chapin gaye instruction to defendant not to sell the property, but to store it until it would command better prices. A notice at the trial to produce an original letter or paper, will not be enforced unless the paper be in the possession of the party or his counsel.</p> <p>3. A letter press copy, made at the same time, can not be received as an original paper.</p> <p>4. Depositions to contradict a witness will not be received unless the question as to the fact was distinctly put to the witness.</p> <p>[Cited in Conrad v, Griffey, 16 How. (57 U. S.) 47.]</p> <p>5. A demand and refusal, or an actual conversion, necessary to sustain an action of trover.</p> <p>6. When a sale is made in disregard of instructions, except for advances, the consignor may recover damages.</p>

<p>Case No. 2,601.</p> <p>Discharge — Merchant under Bankrupt Act— Books op Account — Preferences.</p> <p>1. One who buys from time to time paintings, but not in the course of his regular business, is not a merchant within the meaning of the bankrupt act [14 Stat. 534], although he places such pictures in a public gallery and sells them at auction; and he is not required to keep books of account.</p> <p>2. When the bankrupt testifies that the occasion of his going into bankruptcy was an unforeseen increase of indebtedness occurring subsequently to payment in full made to certain creditors, the fact that he was actually insolvent at the time of making such payment does not compel the inference that bankruptcy was then contemplated. The design to give a preference must be established as a fact.</p>

[In admiralty. Libel by the officers and crew of the United States vessel Cyane to recover one-half of the proceeds of the schooner Chapman.]

This cause was removed to this court by the plaintiff in the main suit (Chapman), under the act of congress of March 3, 1875. The defendant (the “occupying claimant”) moves to remand it to the state court

This was an action at law [by Emeline L.. Chapman] upon a policy of insurance issued by the defendant [the Republic Life Insurance Company], dated on the 23d day of July, 1873, whereby said company insured the life of Dennie Chapman in the sum of twenty-five hundred dollars, for the use and benefit of his wife, the plaintiff.

In admiralty. This suit was brought [by Daniel C. Chapman against the bark Lucerne] to recover the sum of $30.50, alleged to be due the libel-ant as pilotage. The bark, on a voyage from the coast of Africa to this port, put into Norfolk in distress, and was there abandoned by her owner to the underwriters. By their direction a steam-tug was sent from here to her, with a pilot and four seamen, to tow her to New York, the owner having no privity with that proceeding.

<p>CaHse No. 2,607.</p> <p>.Equity Pleading — Exceptions to Answer — Impertinence — Matter in Abatement — Town Site Law op 1844 — Entry Under — Donation Act op 1S50 — Effect—Rights of Setti.ek — Patent as Evidence of Compliance with Act.</p> <p>1. Exceptions to an answer in equity for impertinence are only allowed where it is apparent that the matter excepted to. is not material or .relevant, or is stated with needless prolixity.</p> <p>2. An allegation in an answer, however evasive or insufficient, which is responsive to the bill, is not liable to exception for impertinence.</p> <p>3. The act of May 23, 1S44 (5 Stat. 657), commonly called the “Town Site Law” was not in force in Oregon prior to the passage of the act of July 17, 1854 (10 Stat. 305), and an entry •and patent in pursuance of it, to land settled upon prior to that time under the donation act of September 27, 1S50 (9 Stat. 496), is simply ■void.</p> <p>4. The donation act was the first law of congress affecting the public lands in Oregon, and it is a grant in the present and gives the fee simple to the donee thereunder from the date ■of his settlement; but, until the complete performance of the conditions subsequent to such settlement, the estate granted is a base or conditional fee and liable to be defeated and revert to the donor by a failure to perform such conditions.</p> <p>[Cited in Fields v. Squires, Case No. 4,776; Lamb v. Davenport, Id. 8,015; Bear v. Luse. Id. 1,179; Sanger v. Sargent, Id. 12,319. Followed in Fitzpatrick v. Dubois, Id. 4,842.]</p> <p>5. A defendant in a suit in equity cannot by means of his answer, obtain any relief concerning the subject matter of the suit, and a prayer therefor in such answer is impertinent.</p> <p>6. Matter in abatement of a suit in equity cannot be alleged by way of answer, but must be set up in a plea.</p> <p>[Cited in Dowell v. Cardwell, Case No. 4,-039.]</p> <p>7. The right of the settler under the donation act to the land claimed by him, ultimately depends upon the settlement and the performance of the subsequent conditions of residence, cultivation, and proof.</p> <p>[Cited in Wythe v. Haskell, Case No. 18,118.]</p> <p>8. The patent to the settler is conclusive evidence of the performance of such conditions- in a court of law and primary in a court of equity; but such patent cannot limit or restrain the estate granted by the act, which vests in the donor independently of and prior to the issuing thereof.</p> <p>9. An exception for impertinence must be allowed in whole or not at all.</p> <p>[NOTE. For decision directing decree in favor of complainant after a hearing upon the merits, see Case No. 2,608, next following.)</p>

<p>Case No. 2,608.</p> <p>Dedication- —Proof — Donation- Act of 1850— Bond for Conveyance — Public Policy.</p> <p>1. A dedication of land to public uses by parties in possession thereof, prior to the passage of the donation act of September 27, 1S50 (9 Stat. 496), does not affect such land in the hands of other persons who may succeed them in such possession.</p> <p>2. Although by the terms of the donation act, the land is granted to the settler, in consideration of his occupation thereof, prior, as well as subsequent to the passage of such act, the grant itself does not take effect prior to, or relate back beyond such passage, and therefore, a parol dedication or quitclaim to public use of a portion of such land by such settler, prior to the passage of such act, does not affect the after acquired estate in the premises.</p> <p>[Cited in Myers v. Reed, 17 Fed. 405.]</p> <p>3. A dedication by parol, being an attempt to pass an interest in lands, contrary to the statute of frauds, should not be allowed, unless plainly proven, and ought not to be inferred from facts not inconsistent with a contrary conclusion.</p> <p>[See RobertsoD v. "Wellsville, Case No. 11,-930.]</p> <p>4. A multitude are no more meritorious in the eyes of the law, than a single person, and it ought not to be presumed that the latter has parted with his property, without benefit to himself. because a whole community, however numerous, lay claim to it.</p> <p>5. A dedication to public uses, alleged to have been made within the memory of living witnesses, cannot be proved by reputation.</p> <p>6. A bond made by Lownsdale and Coffin, on November 26. 1849. for a deed to a lot, upon the sole consideration that the obligors therein — “the trustees of the school and meeting house of Portland, and their successors in office” — should do and perform certain things in the condition thereof written, is a mere gratuitous uroinise, unril performance or an accepted promise of performance of such condition, and therefore will not be enforced against the obli-gors in equity.</p> <p>7. School district No. 1 of the county of Multnomah, is not the successor of “the trustees” aforesaid, and therefore cannot claim any interest in such bond, or enforce it.</p> <p>8. A condition in said bond that “the trustees” aforesaid, should be incorporated by legislative enactment, and thereby authorized to hold the lot aforesaid, for the use of the town of Portland. for school and meeting house purposes, •'exclusive of any restrictions of any school law,” is not void, as being contrary to public policy.</p> <p>9. The city of Portland is not the successor of “the trustees” aforesaid, and is not authorized by law to take and administer the trust proposed in the condition of said bond, and therefore, cannot claim any interest in or enforce it.</p> <p>10. There is no privity between Stark, the complainant’s grantor, and the obligors in said bond, and ho is not bound by it nor his grantee, the complainant.</p>

<p>Case No. 2,609.</p> <p>Enjoining Puoceedings on Judgment.</p> <p>The absence of a witness at the trial at law, is no ground of equity to obtain an injunction to stay proceedings at law on the judgment.</p>

<p>Case No. 2,610.</p> <p>Equity — Mixing Claim — Placer Claims — Waste, Injunction to Restrain — Injunction to Restrain the Working of a Mining Claim — Locator or Mining Claim — Chinamen, Rights op, in the United States.</p> <p>1. A person who seeks the aid of a court of equity to protect his interest in a mining claim located under the mining laws of the United States, must show a substantial compliance with such laws.</p> <p>2. Placer claims may be located and occupied jointly.</p> <p>3. The technical distinction between waste and a mere trespass, has been long disregarded by courts of equity, and the rule now is, that wherever a trespass is attended with irreparable mischief or a multiplicity of suits or vexatious litigation, an injunction will be allowed the same as if it were a case of waste.</p> <p>4. An injunction will be allowed to restrain the working of a placer gold mine located by the complainants under the United States mining acts, while in the possession of persons not qualified to take and hold such lands.</p> <p>5. Under the mining laws of the United States, the locator of a mining claim becomes the assignee of the United States, and so long as he complies with the conditions imposed by them and the license to occupy remains in force, the right of the locator to the possession of the land, and to appropriate to his own use the minerals therein, is full and complete; and he need not take any step to purchase the same unless he thinks proper.</p> <p>[Cited in U. S. v. Nelson, Case No. 15,864.]</p> <p>6. Article 6 of the treaty of July 28, 1868, with China, in effect secures to Chinamen the right to reside in the United States upon the same terms as the subjects of Great Britain and Prance, and this implies the right to follow any lawful pursuit or calling not prohibited to the subjects of these two powers.</p> <p>[Cited in Baker v. Portland, Case No. 777.]</p>

<p>Case No. 2,611.</p> <p>Customs Duties — “Ribboxs. ”</p> <p>In construías the eighth section of the act of June 30, 1S04 (13 Stat. 210), which imposes a duty of sixty per centum ad valorem on “all dress and piece silks, ribbons, and silk velvets, or velvets of which silk is the component material of chief value,” that clause must be construed in the same manner as if the word “ribbons” read “silk ribbons.”</p>

<p>In bankruptcy.</p>

<p>[At law1. Action by Martha Chappelle against Cyrus Olney to recover moneys received by defendant to plaintiff’s use.]</p>

<p>Case No. 2,614.</p> <p>Collision — Laches op Libelant — 1868.</p> <p>[1. A claim for damages sustained by collision on Lake Erie cannot be maintained against a bona fide purchaser of the vessel at mortgage sale, without notice of the claim, more than one year after the collision, when the vessel continued to run on the lakes.]</p> <p>[2. As a general rule, admiralty liens on vessels navigating the western lakes must be prosecuted within one year after such liens could have been prosecuted, or they will be considered stale.]</p>

In admiralty. The libellant shipped at New York in January, 1870, on board the Charles F. Perry, for a voyage to Rosario, in South America, and back to Boston, at thirty dollars a month. At the foreign port he did the work of a stevedore, by the request of the master, and thus saved a considerable sum to the vessel, besides paying a man to do his work as cook. His services as stevedore were much more laborious and valuable than those of a cook.

<p>In admiralty. The libel in this case was filed by John C. Rahming, the owner, and the master and crew of the schooner Geor-giana, in behalf of themselves and all others interested against the schooner Charles Henry and her cargo, to recover salvage. The Charles Henry as well as her cargo was seized, under process, issued according to the prayer of the libel, and thereafter John Dempster Cousins, who was a passenger upon the Georgiana, not fully satisfied with the presentation of the case as made in the libel of the owner, appeared by his own proctor, and asked and obtained from the court leave to set forth his services and demands with more particularity in a supplemental allegation. Subsequently, Dominick Buckley, another of the passengers upon the Georgiana, filed a libel, setting forth his services in effecting the salvage, and process was issued in his behalf. Subsequently, by order of the court, the two causes were consolidated. No one appearing on the part of the Charles Henry or her cargo upon the return of the process, it was accordingly adjudged that the schooner and her cargo be condemned to pay salvage, and a reference was ordered to a commissioner, to take such testimony as the respective parties appearing might offer in support of their allegations, and report the same to the court Upon the coming- in of the testimony taken before the commissioner, the varions libel-lants appeared before the court, by their respective advocates, and presented their views upon the question of the amount of salvage to be awarded, and its distribution among the salvors.</p> <p>There was little or no dispute as to the circumstances attending the saving of the vessel proceeded against, or the part taken by the parties who claimed to be the salvors. The proofs showed that about midday on the 24th of August last, when the Georgiana, bound to New York, was about thirty miles from Cape Henlopen, a wreck was descried, lying in her course. Upon coming up with it, the libellant, Cousins, proposed that it be boarded, and overcoming some slight objection on the part of the master, on account of the sea running, went into the stern boat, which was lowered, and with the master, the cook and two seamen, proceeded to the wreck. It proved to be the schooner Charles Henry, laden with coal, water-logged and abandoned. She was found to be in great disorder, full of water, with one pump choked, and the sea making a clean breach over her. She was, in ¿fact, a derelict in a sinking condition, and, in the opinion of some of the witnesses, would have gone down within six hours if no aid had been afforded her. After trying the pumps, it was determined, upon a consultation between the master and Cousins, to make an effort to free her, and bring her into port. The effort proved successful. By active pumping she was freed from water, and sails were set. A crew, consisting of the mate of the Geor-giana, two passengers, Cousins and Buckley, and the cook, were put in charge, with orders to follow the Georgiana, which latter vessel, by slackening sail, kept her in sight, and led the way, until, after the expiration of two days and eight hours, both vessels arrived safely in the port of New York.</p> <p>The value of the Charles Henry and cargo amounted to about $3,700.</p>

In admiralty. This was an action in rem by the widow of Edwin Rusk against the steamboat Charles Morgan, to recover damages for the death of her husband.

<p>Case No. 2,620.</p> <p>Collision at Pier — Tus and Tow — Hakbor Navigation — Negligence.</p> <p>1. Where a large oil-barge in tow of a tug, the C. R. S., which was endeavoring to turn her in the East river, sagged against vessels lying at the end bf a pier, and the force of the blow drove one of the vessels, a tug with a flaring bow, on and over the bulwark of another tug, doing her damage: TIM, that the oil-barge and her tug, having only sagged against the vessels by force of the tide and against their own efforts, were not guilty of any negligence.</p> <p>[Distinguished in The Harry, 15 Fed. 161.]</p> <p>2. That it is the duty of every vessel lying at a pier to be prepared to withstand such contact, it being one of the necessary incidents of harbor navigation; and that the negligence that caused the damage in this case was in allowing a tug with an unusually flaring bow to lie against the midships of another in such a position that, when pressed together, the strain must all come on the bulwarks of the inner vessel.</p> <p>[Cited in The Echo, 19 Fed. 455: The N. B. Starbuck, 29 Fed. 79S; The Howard. 30 Fed. 282; Mould v. The New York, 40 Fed. 902.]</p>

<p>Case No. 2,621.</p> <p>Prize — Violation op Blockadf..</p> <p>Vessel and cargo condemned for a violation of the blockade.</p>

This was a libel for a collision in the straits of Mackinac, between the schooner Charles Wall, of 691 tons, and the Charlotte Raab, a small three-masted schooner. The collision occurred about ten o’clock in the evening. The night was dark and somewhat cloudy, but not foggy, and the outlines of either vessel could be seen from the other at some distance.

This was a suit in equity [by the Charter Oak Fire Insurance Company], commenced in the superior court of Connecticut, for Hartford county, and removed into this court by the defendants [the Star Insurance Company], under the 12th section of the judiciary act of September 24, 1789 (1 Stat. 79). The plaintiffs now moved to remand the suit to the state court.

In admiralty. This libel was filed by [Syl-vanus G. Chase and others] the owners of the lake boat Frank Carver, against [Humphrey H. Crary and others] the owners of the steam tug Catherine, and the owners of the steam tug Geo. Birkbeck, Jr., to recover the damages occasioned to the Carver while in tow of the Catherine by a collision with a lumber barge in tow of the Birkbeck on the 8th of November, 1854, in the East river.

Bill in equity [by William S. Chase, as-signee, against Benning W. Sanborn and others], praying for an account and an induction for the infringement of an alleged copyright on certain volumes of New Hampshire reports and a digest of decisions in the same state.

<p>Case No. 2,627.</p> <p>Patents — “Buckles ’’ — Validitt.</p> <p>The reissue patent granted Lucius' C. Chase, May 2<j. 1863. for improvement in buckles, held, invalid for want of novelty in the inven#on described and claimed.</p>

This was a bill in equity filed [by Irah Chase, Jr., and Albert Clark, partners as Chase & Co.], to restrain defendants [Matthew Walker, Sr., and Daniel S. Walker, partners as M. Walker & Son], from infringing letters patent [No. 5,006], for “improvement in the process of manufacturing wire grating,” granted to Henry Jenkins, March 6, 1847, reissued June 28, 1S59 [No. 7,471], and extended for seven years from March 6, 1861.

[Appeal from the commissioner of patents. [Application by Chatfield and Dutcher for letters patent for a device for elevating water by buckets. From a decision of the commissioner of patents rejecting the application, the applicants appeal.]

<p>Case No. 2,631.</p> <p>Infringement or Patent — Injunction.</p> <p>A preliminary injunction was granted where the complainant had been long in the enjoyment of his rights under his patent, and there was no doubt as to the defendants’ infringement, and the evidence failed to satisfy the court of the existence of articles alleged to have, been in use before the date of the patented invention.</p> <p>[Cited in Hat-Sweat Manufg Co. v. Davis Sewing Mach. Co., 32 Fed. 402; Carter & Co. v. Wollsohlaeger, 53 Fed. 575.]</p>

<p>Case No. 2,632.</p> <p>Watch ox Vessel in Pout — Charging Expense to Seaman — Custom—Process in Rem without Notice to Owners.</p> <p>1. The court refused to sanction a custom, not supported by strong proof, of having a watch on board vessels in foreign ports at the expense of the sailors.</p> <p>2. Where process in rem is commenced, without notice to the owners who reside within the district, no more costs will be allowed than in the case of a monition to show cause.</p>

<p>Case No. 2,633.</p> <p>Jurisdiction of District Court — Ohio River— Regulation of “Commerce among the States” —Steam Ferry-Boats — Salvage — Compensation.</p> <p>1. The district court of the United States for the southern district of Ohio, as a court of admiralty, has territorial jurisdiction in case of a seizure on the Ohio side of the Ohio river, at high-water mark.</p> <p>2. The court also has admiralty jurisdiction over the Ohio, as a navigable river, by virtue of section 9 of the judiciary act of 1789, as construed by the supreme court of the United States.</p> <p>3. Ferry-boats propelled by steam, and used as such between two cities in different states, are within the scope of congressional legislation, under the grant of power to regulate commerce “among the states,” and are subject to the jurisdiction of the national courts in the exercise of their admiralty powers.</p> <p>[Cited in Murray v. Ferry-Boat, 2 Fed. 90; The St. Louis, 48 Fed. 313.]</p> <p>4. Ferry-boats, or any other property of value, adrift on the Ohio river and in peril, are the subjects of a salvage service.</p> <p>[Cited in Salvor Wrecking Co. v. Sectional Dock Co., Case No. 12,273: Maltby v. Steam Derrick-Boat, Id. 9,000; The Old Natchez, 9 Fed. 477. Approved in same case, Id. 479.]</p> <p>ñ. r,'o constitute a good salvage service, it is enough to show that the property rescued was exposed to danger greater than is incurred in ordinary navigation, and it need not be proved that the danger was imminent or immediate.</p> <p>6. The claim that the property was in possession of prior salvors is not sustained, if it appear that their efforts to save it had not been and would not be successful.</p> <p>7. Those in possessionare estopped from claiming as salvors, if they requested the aid of those who interposed and saved the property.</p> <p>8. Where the facts in a case show a legal salvage service by the libellants, but not of the highest order of merit, they are not entitled to a high rate of compensation.</p>

<p>Case No. 2,634.</p> <p>Municipal Corporations — Opening and Grading Streets—Injury to Adjoining Land.</p> <p>1. A street 50 feet in width was laid out by the proper authority through the land of C., and the damages to C. were assessed. Such damages included remuneration for the land taken, for the deprivation of any right or privilege attached to it, and for the damage done by the lay out to the land connected with, that which was covered by the street. A street of 50 feet in width was a fit and proper width for the public necessities at the locus in quo, the grade was a proper grade, and too much earth was not excavated. But, the public officers charged with doing the work cut the land at the extreme sides of the street perpendicularly, in a manner which would cause the adjoining land of C. to cave into the street, and subject him to expense and damage. On a bill filed by C. to restrain such officers from exea-vating in such manner, on the ground that they were doing the work without reasonable care, because they were not either providing a proper slope in the 50 feet width, or building a retaining wall in such width at their own expense: Held, that they had the right to excavate in such manner.</p> <p>2. In the absence of statutory provisions, a municipal corporation or its agents are not liable for the consequential damage which is necessarily done, in the exercise of reasonable care, to adjoining land not taken for public use, in the execution of a public work imposed by the legislature upon the corporation, for the public benefit.</p> <p>3. A municipal corporation may grade and change the grade of streets, from time to time, when it is necessary so to do, without protecting the earth or embankments of the adjoining proprietors, and is not liable for the consequential damage caused to them in adapting their land to the grade and protecting it.</p>

<p>Case No. 2,635.</p> <p>National Banks in Default — Interest on Claims — Remedy of Depositor.</p> <p>1."Where a national hank is declared in default by the comptroller of the currency, and a receiver of it is appointed by him, under the fiftieth section of the act of June 3. 1S04 (13 Stat. 115), and a sufficient fund is realized from its assets to pay all claims against it and leave a surplus, tne comptroller ought to allow interest on the claims, during the period of administration, before appropriating the surplus to the stockholders of the bank.</p> <p>[See, also, Nat. Bank of Commonwealth v. Mechanics’ Nat. Bank, 94 U. S. 437.]</p> <p>2. An action of assumpsit, by the holder of a claim against the bank, to recover such interest, will not lie asainst the receiver of the bank, or against the comptroller of the currency, but will lie against the bank.</p> <p>3. In such an action, interest is recoverable upon all demands originating in contracts conditioned for the payment of interest, and on all demands for money due and unpaid, by way of damages for the non-payment, after such demands became due.</p> <p>4. Interest is recoverable on a balance due a depositor in such bank, although he has made no formal demand of payment. •</p>

<p>Case No. 2,636.</p> <p>Imprisonment op Bankrupt on Executions — Ef-pect of Discharge — Habeas Corpus — Attacb-mf.nt under Mesne Process — Effect of Decree of Bankruptcy.</p> <p>1. One who has been declared a bankrupt is not entitled, as of course, to be discharged from imprisonment under an execution which issued and was served upon him, and under which he was committed, before the petition in bankruptcy was filed.</p> <p>2. But, .when the bankrupt has obtained his certificate of discharge, he is entitled to be released from imprisonment for the debt by the district court of the United States, and also by the state courts.</p> <p>3. Whether the certificate of discharge relates back to the time of the commencement of the proceedings, and renders an intermediate imprisonment unlawful, thereby founding an action for false imprisonment, — quaere.</p> <p>4. All attachments of the property of the bankrupt upon mesne process, after the commencement of the proceedings in bankruptcy, are avoided by the decree of bankruptcy; the property of the bankrupt being devested out of him, and vested in the assignee, when appointed, by mere operation of law.</p> <p>5. JVhether the bankrupt obtains a certificate of discharge or not. the property passes to the assignee, and is distributable among his creditors.</p> <p>6. An attachment upon property under mesne process, is not, in the strict ■ sense of the law, a lien on the property, although it bears a resemblance to it.</p> <p>7. “When a bankrupt is confined in close custody, he may be produced in court, by a writ of habeas corpus, whenever his presence is necessary for further proceedings in bankruptcy, before the court or a commissioner thereof.</p>

In bankruptcy. The register certifies that this cause is pending before him under a general order of reference entered on the 2d day of February last; that in obedience to such general order of reference he entered an adjudication and issued a warrant to the marshal to give notice of a meeting of creditors for the choice of an assignee on the 2Sth day of March; that, accompanying said general order of reference, a special order of reference was delivered to him, directing…

The declaration contained three counts: 1, On a promissory note, subscribed by the defendant [William Jones], dated 26th November, 1S05. at Canton, by which he promised to pay the plaintiff, by the name of Mr. Cheongwo, 9,102 dollars, for value received, in teas, twenty months after date; and if not paid at maturity, to pay at the rate of one per cent, per month interest, until paid: 2, goods sold and delivered: 3, an account stated.

<p>Case No. 2,639.</p> <p>Removing Timber from Public Lands — Forfeiture of Vessel — Pleading and Proof.</p> <p>1. Forfeiture cannot he enforced [against a vessel, the master of which has taken on board timber removed from public lands, in violation of act of March 2. 1831 (4 Stat. 472)], except ■upon averment in the libel, and proof that the .•"•is charged us a public offense were done by the master of the vessel wilfully, or with knowledge of their culpability.</p> <p>2. That the confessions of the consignee of the vessel of his knowledge in the premises are not admissible to charge the offense on the owner or mate of the vessel.</p> <p>3. That if such proofs could be received, it was less doubtful upon the evidence whether the portions of land upon which the timber was cut, at the time belonged to the United States, and if they did do so, whether the consignee cut or removed the same thereupon, or acquired it knowing that fact.</p>

<p>Case No. 8,640.</p> <p>Joint 'Capture op Prize — Constructive Capture — Prize Act op 1862 — Construction.</p> <p>Joint capture of a prize. Who are entitled to share. Co-operation in a blockade does not constitute the blockading vessels joint captors. Discussion of the English doctrine of constructive captors. Construction of the prize act of 1862 [12 Stat. 606],</p> <p>[Followed in The Atlanta, Case No. 619. Cited in The Aries, Id. 529; The St. John,. Id. 12,225; The Selma, Id. 12,617.]</p> <p>See the Aries [Case No. 520]; The St. John [Id. 12,225]; The Ella & Anna [Id. 4,368].</p> <p>NOTE [from original report]. "We are indebted to the courtesy of the district attorney of the United States for the district of Massachusetts, the Hon. Richard H. Dana, Jr., for the foregoing opinion of the. experienced and learned judge of that district, Mr. Justice Sprague; and we are assured by Mr. Dana, and fully concur in the assurance, “that this opinion of Judge Sprague is of the utmost interest to the navy; that it is the leading case, and is most thoroughly considered.” Nothing which we could add would he esteemed of much value beyond such an indorsement, from such a source, Mr. Dana being not only a good lawyer, everywhere, but especially devoted to admiralty and prize law. But we desire to commend, in a special manner, this opinion of Judge Sprague to the bench and the bar throughout the land, as drawn up with that patient labor and research, which makes it a mine of wealth to all who may possess it. Such a thorough revision and careful analysis of the cases, presenting them in detail, and sufficiently at length to make them intelligible, even to unprofessional readers, renders the opinion, and any opinion drawn up in that authentic and reliable manner, almost invaluable as a matter of convenient reference ever after. There is no one thing wherein the public poorer proves economy, than in requiring so much labor of their judges, in courts of final adjudication, as to render it absolutely impracticable for them to wait long enough, to obtain a full survey of the field lying behind them, before they arc compelled to take a leap into the future, which too often proves in the sequel, but a leap in the dark. — I. F. B.</p>

<p>Case No. 2,642.</p> <p>Collision in the East River — Vessels Crossing — Pleaping—Movement in Imminent Danger.</p> <p>1. Where a propeller coming down the East river had a ferry-boat, which was crossing from New York to Brooklyn, on her starboard hand, and the ferry-boat kept her course, as was admitted by the answer — Bold, that under articles 14, 16 and 18 of the rules of navigation, the propeller would be liable for a collision under such circumstances.</p> <p>2. That the effort on behalf of the propeller to make out a special case under article 19 was not only inconsistent with her answer, but was not sustained on the evidence.</p> <p>3. That under the circumstances it would have been prudent for the propeller to have ported her helm and gone under the ferry-boat’s stern, whereas she did attempt to cross her bows, and that having selected the most hazardous of two courses open to her, she must be held responsible for its failure of success.</p> <p>4. That the excuse that the ferry-boat stopped her wheels and so led the propeller to starboard, is not made out.</p> <p>5. That the fact that the propeller, as she neared the ferry-boat, blew two whistles and received two whistles in reply, does not alter the case. Tho two whistles in reply would amount to nothing more than an indication that the ferry-boat acquiesced in the right so claimed by the propeller to select her own method of avoiding the former. Moreover, the danger was then imminent.</p>

<p>Case No. 2,644.</p> <p>Confession of Supersedeas Judgment.</p> <p>An execution upon a supersedeas judgment, confessed more than two months after the date of the original judgment, will be quashed.</p>

<p>This was a libel in rem, filed in the district court, by the owners of the steam ferry-boat Manhasset, against the steam propeller Chesapeake, to recover damages for a collision, which occurred in the East river, at about nine o’clock a. m. on the 2d of December, 1804. The district court — The Chesapeake [Case No. 2,642] — decreed for the libellants, and the claimants appealed to this court.</p>

This was a motion by F. S. Key, to set aside an inquisition which had been taken and returned to the court, condemning, for the use of the canal, a lot in Georgetown, owned by him. The cause was argued by him and Mr. Jones, on the 23d and 25th of May, 1S29. The statement of the case will appear in the opinion of the court.

An inquisition, condemning more land than ■can be reasonably required for the use of the Chesapeake & Ohio Canal Company, or if the boundaries are not ascertained with certainty, will be set aside by the court. This was a motion to set aside an inquisition condemning land of [John] Mason, in Georgetown, District of Columbia, for the ■use of the Chesapeake & Ohio Canal.

<p>Case No. 2,655.</p> <p>Prize—THb Claim—Proof—Transfer of Enemy Vessel—Running Blockade—Evidence.</p> <p>1. A claim in a prize suit should be one of property merely, and should only put in issue, by a simple denial, the validity of the capture.</p> <p>2. The papers found on board the captured vessel, and the testimony of the witnesses in preparatorio, can alone be considered on the hearing, in the first instance, in the determination of the issue.</p> <p>3. A transfer of an enemy vessel by an enemy to a neutral, in an enemy port, during the ivar, is void.</p> <p>4. In this case the vessel and cargo were falsely represented to be liona fide neutral property, when they were, in fact, enemy property, and as such liable to capture.</p> <p>5. A contingent destination to a blockaded, port must appear on the ship’s papers; otherwise it will be presumed that there was a dishonest purpose in approaching such port.</p> <p>C. In this case there was positive evidence of such dishonest purpose. The alleged purpose of making inquiry as to the raising of the blockade was a mere pretence.</p> <p>7. A neutral vessel, with knowledge of the existence of a blockade, has no right to proceed to a blockaded port with the purpose of inquiring there as to the continuance of the blockade.</p> <p>[Cited in The Empress, Case No. 4,477; Stokely v. Smith, Id. 13,473.]</p> <p>8. The inquiry must be made elsewhere than at the mouth of the port itself.</p> <p>9. Vessel and cargo condemned.</p>

[Proceedings to condemn the ship Cheshire and cargo for an attempted violation of the blockade. The claimants appeal from a sentence of condemnation rendered in the district court. Case No. 2,655.]

In admiralty. This was a suit to recover for leakage of about one thousand two hundred and ninety-six gallons of sperm-oil, out of three thousand three hundred and five gallons, contained in twenty casks of various sizes, and shipped by said bark from Boston to London, in July, 1S58.

[At law. Action by the Cheshire Provident Institution against George H. Johnston upon a promissory note, secured by mortgage, payable to George B. Sargent as agent of Austin Corbin, and assigned by him to Corbin, and by Corbin to plaintiff.

In admiralty. This libel was for tvages of six seamen, earned on a voyage of two months and twenty days, from Boston to Paramaribo, in Surinam, and back to Boston, in the bark Tidal Wave. The only dispute was, -whether seventeen dollars and sixty-seven cents which had been retained from the pay of each man was rightly deducted.

At law. This was an action commenced in 1847, to recover back duties paid under protest, in 1841, to the defendant [Edward Curtis], as collector of the port of New York, on worsted carpet bindings.

<p>Case No. 2,662.</p> <p>Removal — Pro Confesso no Bar — Indispensable Party —Trustee not Such — Removal of Causes — Case in Judgment.</p> <p>1. A pro confesso, taken by complainant at return term, does not operate to prevent the removal of a cause, under the act of 1S75 [IS Stat. 470], into the federal court.</p> <p>2. The jurisdiction of the court cannot be defeated because the plaintiff cannot obtain full relief by the suit brought as to all parties against whom relief may be needed, but only when it cannot be had against a non-resident defendant without the presence of some resident defendant, whose presence is indispensable.</p> <p>3. Where a citizen of Tennessee filed a bill in equity against an insurance company chartered by Missouri to cancel certain policies of insurance, loan and interest notes for an account of premiums and dividends and to enjoin a sale of his land under a deed of trust given to secure the loans, and the trustee was a citizen of the same state with the complainant: held, that the cause was removable as a controversy wholly between citizens of different states, and that the trustee was not an indispensable party.</p> <p>[Distinguished in Chester v. Chester, 7 Fed. 3.]</p> <p>CHESTS OF.</p> <p>[Note. Cases cited under this title will be found arranged in alphabetical order under the quantity or number of chests; e. g. “Chests of Tea. See Six Hundred and Fifty-One Chests of Tea.”]</p>

<p>Case 3STo. 2,664.</p> <p>Removal fkom State Coukts.</p> <p>Where the real controversy is between a city and one of its citizens, a citizen of another state, claiming to be interested in the subject matter of the litigation, has not the right to remove the suit from the state into the federal court.</p> <p>[Cited in Carraher v. Brennan, Case No. 2,-441; Donohoe v. Mariposa L. & M. Co., Id. 3.9S9; First Presbyterian Soc., etc., v. Goodrich Trans. Co., 7 Fed. 201.]</p> <p>• [NOTE. Ayres, the intervener, appealed to (he supreme court, which affirmed the order of the circuit court. After the docket of the appeal, the complainant moved to dismiss, for the reason that the cause was not one from which an appeal would lie. This motion was overruled, the court holding that there was no doubt of its jurisdiction, as by the act of 1875, § 5 (18 Stat. 472), jurisdiction to review such .an order was expressly conferred.</p> <p>[The court then decided the case upon the merits, upon the following grounds, Mr. Chief Jusriee Waite delivering the opinion: That the original bill and cross bill constituted but •one suit; that appellant had no separate dispute with either Gage or the city; that, at most, he and Gage had a controversy with the ■city as to its lien, and, Gage, who was on the .same side of that controversy with him, being a citizen of the same state as the city, the suit was not removable, under the rule settled in the Removal Cases. 100 U. S. 457; Ayers v. Chicago, 101 U. S. 184.]</p>

2 [A bill in chancery was filed in the United States circuit court, alleging that the complainant was a corporation organized and existing under the laws of the state of Wisconsin, and a citizen of that state, and-that there was also a corporation of the same name organized and existing as a corporation under the laws of the state of Illinois; that by a certain agreement heretofore entered into between said respective corporations, commonly called articles of consolidation,…

Bill [against M. E. Cutts, attorney general, and William Christy, treasurer, of the state of Iowa, and Daniel Campbell] for an injunction. On the 23d day of March, 1874, the legislature of the state of Iowa passed an act entitled, “An act to establish reasonable maximum rates of charges for the transportation of freights and passengers on the different railroads of this state.” Acts 1S74, p. 61.

The questions to be determined arise on a demurrer to the petition, which consists of one hundred and thirty-five counts, each of which is as follows: “That on the 1st day of January, 1S70, at Nebraska City, in said county, the said defendant made and issued its certain bond, dated on said day at said place, whereby, for value received, it promised twenty years from date to pay the bearer one thousand dollars at the Broadway Bank in the city of New' York, with interest…

In equity. This was a bill to prevent the collection, by seizure, distress, or otherwise, by Mr. Schneider, the United States collector for this district, of a tax for S29.2S5, claimed to be due to the United States from the complainant, under the Slst section of the internal revenue law of July 1, 1SG2 (12 Stat. 469).

This was a bill in equity to recover damages for past and to restrain the future use by defendants, of a patent- [No. 3,252] re-issued by the United States to Benjamin M Nyce, bearing date the 5th day of January 1S69, for “an improvement in buildings foi preserving fruit and other substances.” The substantial allegations in the bill were, that on the 19th day of March, A. D., 1861, a patent [No. 31,734] was duly issued by the United States to said Benjamin M. Nyce for a new…

<p>Case No. 2,670.</p> <p>Removal — DiveitSE Citizenship — Cohpohations.</p> <p>1. In determining, under the first clause of § 2 of the act of March 3, 1875 (18 Stat. 470), whether a suit is one in which there is a controversy between citizens of different states, the condition of the controversy when the petition for removal is filed is what is to be considered, and not its condition at a subsequent time. There must be a controversy between citizens of different states when the petition is filed, and all the parties on one side of such controversy must unite in the petition for removal, and they must all then be of different state citizenship from any of the parties on the other side of such controversy.</p> <p>[Cited in Smith v. McKay. 4 Fed. 354; Cur-tin v. Decker, 5 Fed. 387, 3SS.]</p> <p>2. A corporation defendant, which is not a real or actual or necessary party, but is a merely formal party, to the controversy in the suit, as suc-h controversy stands when the petition for removal is filed, is to be considered as not a party.</p> <p>3. The controversy is to be judged of, in part, by the pleadings, if any, which had been put in, in the state court, before the filing of the petition for removal.</p> <p>4. In a suit by a corporation of one state against a citizen of another state, it is sufficient, in a petition for removal by the defendant, under the first clause of said § 2, to state, that the defendant is a citizen of such other state, and it is not necessary to state that he was such citizen when the suit was commenced.</p> <p>[Cited in Curtin v. Decker, 5 Fed. 3S7, 3SS.]</p> <p>5. Nothing had transpired, in pleading or evi■dence. since the case came into this court, to show that said formal defendant ought now to he held to be an actual, real and necessary defendant; and a motion to remand the cause was ■denied.</p>

This cause was formerly before this court, and the decision then made will be found reported in 8 tehunn. 474 [Case No. 2,672]. By the interlocutory decree then passed, it was referred to a master to ascertain and report to the court the amount of the claim of Gideon Hatch, which was declared to be a charge on the land stated in the bill.

In equity. This was a bill in equity, filed to restrain defendants [Thomas Adams, William G. W. Jaeger, and Luther Martin] from infringing letters patent [No. 3,824] granted John Gilbert Mini, November 13, 1844, for an “improvement in making lampblack,” and assigned to plaintiff [Richard S. Child]. The facts upon which the decision turned are fully stated in the opinion.

Bill in equity, by an execution creditor under a levy, for discovery. No appearance was entered for William B. Hatch, the execution debtor, and the bill was taken against him, pro confesso.

<p>Case No. 2,674.</p> <p>Patents for Inventions — Infringement—Accounting-Profits.</p> <p>[On accounting for infringement of a patented invention used in connection with printing presses, it appeared that defendant credited other parts of his manufactory with materials supplied from them, so as to allow them profits as independent establishments. Jichi, that such credit was erroneous, and that defendant should account for the entire profits realized.]</p> <p>[Cited in Star Salt Caster Co. v. Crossman, Case No. 13,320.]</p> <p>[In equity. Bill by Cyril C. Child against the Boston & Fairhaven Iron Works for infringement of letters patent No. 98,087, granted to C. Montague, December 21, 1809. There was a decree for libelant, and an accounting ordered to John G. Stetson, as master. See Case No. 2,075.)</p> <p>[NOTE. For decision of an action at law for the same' infringement, in favor of defendant, see Child v. Boston & F. Iron Works. 19 Fed. 258; and. for a decision disallowing proof of the judgment herein as a claim against the defendant in bankruptcy, see In re Boston & F. Iron Works. 23 Fed. 880.]</p>

Bill in equity to restrain alleged infringement of letters-patent [No. 98,087] for improvement in printing-presses, granted Charles Montague, assignor to the complainant [Cyril C. Child], Dec. 21, 1809. The defendant [The Boston and Fairhaven Iron Works] admitted the manufacture and sale of presses containing the patented improvement, hut denied that Montague was the original and first inventor, and denied that it was new.

<p>Case No. 2,676.</p> <p>.Extra Seamen’s Wages for Short Allowance —Burden of Proof.</p> <p>1. Extra or double wages are given seamen when put on short allowances of provisions or water on a voyage, only in case the quantity required by law is not supplied the ship by her master or owner.</p> <p>2. If the ship has a proper supply laden on board, and the crew is insufficiently furnished on the voyage, their remedy is by action for the particular wrong, and not for double wages.</p> <p>3. All the crew may unite in a suit for double wages because of a short allowance of bread, and each is a competent witness for his fellows.</p> <p>4. It devolves upon the libellants, in such action, to prove both that a short allowance was served them, and that the vessel had an insufficient supply laden on board.</p> <p>[Cited in The John L. Dimmick, Case No. 7,-355.</p> <p>5. If they fail in maintaining their action, and it appears there was no colorable cause for bringing it, they will be charged with full costs of suit.</p> <p>6. When one of the libellants unites a demand for contract wages unpaid him with his claim for short allowance, and obtains a decree for those wages, the court will only allow him proportionate costs against the vessel on that demand, not including witnesses fees to his co-libellants, and will order full costs against him in connection with his co-libellants upon the other branch of the litigation.</p>

<p>[In equity. Cross bill by Francis Childs against Samuel Corp.]</p>

<p>Case No. 2,678.</p> <p>Vbsseu Owneiis — Rights of Majoiuty in Inteii-est.</p> <p>[A majority in interest of shipowners may dismiss the master, although a co-owner, at any time without cause.]</p>

The “patent act,” as it is called, of July 4th, 1836, § 15 (5 Stat 123), “permits” a defendant, in suits brought for infringement, to plead the general issue in a variety of cases, which the act specifies, and to give any special matter in evidence of which he may have given thirty days’ notice to the plaintiff.

This cause came on upon a case agreed. Robert Denison imported, in 1801, a cargo of goods, in the Betsey, of which he was owner, which arrived at Baltimore, consigned to Edward Denison, who resided at Baltimore, and carried on trade under the firm of Robert & Edward Denison; Robert residing at Philadelphia. The invoice showed the goods to (have been shipped by the order, and for the account of Robert Denison.

<p>At law. This was an action of assumpsit, in which the plaintiff [Enoch L. Childs] declared specially on two contracts in writing, whereby he agreed to build the bridges and depots on the line of the defendant’s railroad, and also in a general count for work, labor, and materials. The contract provided, that he was to be paid for the bridges the sum of one hundred and three thousand dollars, twenty-five thousand dollars whereof was to be paid in shares of the capital stock of the corporation, and the residue in money. The payments were to be made monthly, upon certificates of the engineer of the proportion of the contract price earned during the preceding month, eighty per cent of such certified amounts being paid wi.hin ten days after the presentation of each certificate, and the remaining twenty per cent on the completion of the entire work. T. e depots were to be paid for wholly in money, at an agreed price for the whole work, upon similar monthly estimates. In the progress of the work it was ascertained, that it was necessary to rebuild one of the spans of one of the bridges, and to elevate it, to permit the public to use the river, and their contract was made touching such new work, for which the plaintiff was to be paid a fixed sum, seventy-five per centum in money and the residue in stock. The plaintiff alleged and offered evidence tending to prove that l e had performed all these contracts, and had done a large amount of extra work upon, and furnished many materials for, the bridges and depots, not provided for by either of the contracts, and for which he was entitled to recover upon the general count for work, labor, and materials. The jury were instructed that he had a right to recover as upon a quantum meruit, for any work and materials done and provided which were not embraced within either of the. contracts; and the question occurring whether he was to be paid therefor wholly in money, or partly in money and partly in stock, it was agreed that the jury might find the amount, if any, which the plaintiff might be-entitled to recover, and the value of the stock at the time it was demanded, and the court should afterwards decide whether the extra work and materials were to be paid wholly in money, and amend the verdict accordingly. The jury having so found, the plaintiff moved to amend the verdict, and also for a new trial, because the jury had fixed the value of the stock at only twenty-five per cent of the par value, which, it was insisted, was contrary to the evidence.</p>

<p>This was an action on a promissory note for $5,000, made by the defendants [Watson A. Fox and Elijah K. Bruce], payable “to the order of the Columbus Insurance Company, two years after date, on demand, with interest payable semi-annually.” After a verdict for the plaintiffs [the Chillicothe Branch of the State Bank of Ohio], the defendants moved for a new trial, on a bill of exceptions. The facts in the case sufficiently appear in the opinion of the court.</p>

<p>Case No. 2,684.</p> <p>Ejectment op Patentee — Occupying Claimant —Compensation rou Improvements.</p> <p>1. An entry of land within the Virginia military district of Ohio, and a survey of the same before the extinguishment of the Indian title, is made void by certain acts of congress.</p> <p>2. A person having such a claim is entitled, having a patent, to compensation for his improvements such as the occupying claimant law, he having acted in good faith.</p>

<p>[At law. Action by Richard H. Chinn against Robert Hamilton, executor of Samuel P. Carson, deceased.]</p>

This was an action at law brought [by Robert T. Chisholm] upon ten bonds for five hundred dollars each, purporting to have been issued by the city of Montgomery. • The defense was the want of power in the city to contract the debt for which the bonds were given, and to issue the bonds. There was no dispute between the parties about the facts in the case, and an agreed statement of the same was submitted to the court.

<p>Case No. 2,687.</p> <p>Equitable Li ex — Trust axd Trustee.</p> <p>1. Certain real estate in Georgia was conveyed to Edward Willis, as trustee, in trust to and for the sole and separate use, benefit and behoof of Elizabeth L. AYillis, his wife, “for and during the term of her natural life, free from the debts, liabilities or contracts of her present or any future husband, with remainder at her death to her children then in life by the said Edward begotten; * * * but, should the said Elizabeth L. die, leaving no child or issue of a child by the said Edward begotten, then with remainder to the said Edward and his heirs in fee simple: provided always, that the trustee for the time being, may at any time, by deed, in which Elizabeth L. AVillis voluntarily joins, sell and convey, mortgage, or exchange the premises aforesaid, re-investing the proceeds of such sale subject to the same uses and trusts.” On May 30th, 1870, AYillis. as trustee under the foregoing deed, joined -with bis wife in conveying the premises to one Rogers, for 83000 cash, and a note of Rogers for $3000. This note and $2715 of the $3000 cash were received by Willis, and were by him used for the benefit of the firm of AYillis & Chisolm, of Charleston, S. C., of which he was a member. On June 30th, 1870, he delivered to his wife a deed of real estate, which had been executed by one Johnston to the firm, with this endorsement on the deed, made by him: “For value received, we hereby transfer ali our right, title, and interest to Mrs. E. L. Wiliis, to better secure her for money deposited with us, (Signed) AVillis & Chisolm.” The money referred to was the proceeds of the conveyance to Rogers. Bankruptcy proceedings were taken against the firm in January, 1872, and an assignee was appointed. Mrs. AVillis claimed a lien on the real estate conveyed to the firm by Johnston. On the assignee’s application, that real estate was sold, free from the lien, and the proceeds wrere paid to the assignee to abide'the determination of the court as to the lien of Mrs. AA:illis: Uclil, that Mrs. AVillis had only a life interest in the real estate conveyed to her husband, as trustee, or in the proceeds thereof; that she, therefore, had no title to the proceeds of the conveyance to Rogers; and that she. therefore, had no money on deposit with the firm of Willis & Chis-olm, on June 30th. 1S70.</p> <p>2. That her claim, whatever it was. was against AVillis alone, and he could not appro-printe the firm’s property, as against the firm’s creditors, to secure such claim; and that she, therefore, had no claim or lieu on the fund in question.</p>

The plaintiffs [Chittenden & Co.] were citizens of New York, and the defendants [Dar-den & HolstonJ citizens of Alabama. The action was commenced by a writ of attachment issued by a commissioner of the United States circuit court, on Nov. 23, 1S74, which was levied on a stock of goods and other property of the defendants in West Point, Georgia, which is within this district.

<p>Case No. 2,689.</p> <p>Navigatiox — Negligence—Damages fkom Swei.l.</p> <p>1. Where a steamboat passed a tow of boats in a narrow channel without much reduction of speed, and a boat in the tow was damaged by a blow from another boat in the tow, caused by the swell of the passing boat; Hchl, that the steamboat was bound to know the depth of water. and whether her swell would endanger the tow.</p> <p>[Cited in The Daniel Drew. Case No. 3.-565; The Drew, 22 Fed. S55.]</p> <p>2. That her right to pass at a given place depended on her ability to do so without causing injury.</p> <p>[Cited in The Drew, 22 Fed. S55.]</p> <p>3. That the attempt to pass when she did was negligence.</p> <p>4. That the passing at such speed was negligence, and enough of itself to render the boat liable for the damages.</p> <p>[Cited in The Daniel Drew, Case No. 3,-505.]</p> <p>[NOTE. The claimant appealed to the circuit court, where the decree was affirmed. See Case No. .2,690.]</p>

<p>Case No. 2,690.</p> <p>Negligent Navigation* — Damages fkom Swell.</p> <p>1. A tug, with five boats in tow behind her, in two tiers, three in the first tier, and two in the second tier, was passing up the narrow part of a harbor, when a side-wheel steamboat, going in the same direction, went by the tug and her tow. In doing so, her suction dragged back the boats in the second tier, so as to break some of their lines, and then the swell she created drove them against the sterns of the boats in the first tier, so that the middle boat in the first tier was damaged: Held, If the steamboat desired to pass at the speed she had maintained up to the time she created the swell, she ought to have passed at a greater distance.'</p> <p>2. If the width of the channel was such that she could not pass at a greater distance, she should have reduced her speed in due season- to prevent so heavy a swell.</p> <p>[Cited in The Massachusetts, Case No. 9,-25S; Andus v. The Saratoga, 1 Fed. 733; The Minnie, 20 Fed. 541; The Rhode Island, 24 Fed. 295.]</p>

] In admiralty. Libellants [Daniel L. Choate and others] were the owners of the ship Sciota, and they instituted this suit against the respondent [Francis B. Crowninshield] in the district court [case unreported] to recover the balance of the freight alleged to be due to them on seven hundred and seventy-two bales of cotton which they transported in that ship from New Orleans to Boston,, and there delivered to the respondent, as the consignee of the goods.

Admiralty appeal from a decree of the district court of Massachusetts [unreported]. The libel was brought by [Samuel W. Meredith] the master of a schooner, for demur-rage, under the provisions of a bill of lading of a cargo of coal consigned to the appellants [Alden Choate and others].

At law. Assumpsit [against James B. Mason and others, executors of John Brown] to recover the amount of a promissory note, given by one Colvin Dana in behalf of the testator.

At law. This was an action brought by Christ, Jay & Hess against Joseph B. Baker, collector of customs, to recover the difference between the duties of fifteen and twenty-four per cent, which latter rate had been exacted by the collector upon certain invoices of blankets imported from England by the plaintiffs, and which they, the plaintiffs, alleged were entitled to be entered at the former rate. The tariff act of 1S46 [9 Stat, 42] arranged articles in schedules.

<p>At law. This was an action [by George Ghrist and others] against [Hugh Maxwell] the collector of the port of New York, to recover back an excess of duties, and a penalty paid on an invoice of woollens. The owners of the goods, who were the manufacturers of them, consigned an invoice of wool-lens to the plaintiffs for sale, on which duties and a penalty were exacted at the customhouse, July 17th, 1852, amounting to $4,712.-10. This action was brought to recover back $530.60 of that sum, with interest, composed of these particulars: The invoice value was advanced $414 by the appraisers, and a duty of 30 per cent, was exacted thereon, viz., $124.20; additional duty or penalty of 20 per cent, on $2,007, $401.40; fee paid merchant appraiser, $5; being a total of $530.60. The. entry was made by the plaintiffs on the 28th of June, 1852. The invoice price was raised 25 per cent, by the appraisers. On the 16th of July, the plaintiffs notified the defendant, in writing, of their dissatisfaction therewith, and on the same day made a protest in writing, setting forth, among other things, that the collector had failed to order a reappraisement, as required by law. On the 12th of July, the oath prescribed by the treasury instructions was administered by one of the principal appraisers to a merchant, and, on the 13th, the merchant, in conjunction with the general appraiser, proceeded, as they stated in their return, to act upon the appeal of the plaintiffs, and reappraise the goods, pursuant to the act of congress of March 3d, 1851 (9 Stat. 629). The duty and penalty sued for were paid on this reappraisement. On the argument, the plaintiffs took fourteen exceptions to the regularity and legality of the proceedings in the custom-house.</p>

<p>Case No. 2,700.</p> <p>Marine Insurance — Ratmext of Loss.</p>

At law. This action, which was concluded on Saturday, was brought [by Christ, Jay, & Hess against Augustus Schell] to recover the difference between the duties of fifteen and twenty-four per cent., which latter rate had been exacted by the collector upon an invoice of certain manufactures of wool, styled in the entry and invoice Gentian blankets. The tariff act of 1S46 [9 Stat. 42] arranged articles in schedules.

<p>Case No. 2,703.</p> <p>Bankruptcy — Insolvent Debtor — Suffering Seizure and Sale on Execution — Suit by Assignee—Measure of Damages.</p> <p>1. An insolvent debtor, within four months before the filing of a petition in bankruptcy, suffered his property to be seized and sold on execution by a creditor who had reasonable cause to believe the debtor insolvent at that time. Held, that the assignee in bankruptcy was entitled to a judgment against the creditor for the value of the property seized on the execution.</p> <p>2. In this ease the value of the property was fixed at the amount the creditor authorized to be endorsed upon the execution.</p>

[In equity. Suit by John Christman and P. Elinendorf Sloan against John A. and Moses Rumsey, for the alleged infringement of re-issued letters patent No. 5,804. The original patent was granted to John Christman, November 28, 1865, and is numbered 51,143.]

<p>Case No. 2,705.</p> <p>Collision in Dock — Negligence-Lines—Costs.</p> <p>1. A small schooner, the C. C., moored for the winter outside another vessel at a pier in Haverstraw bay. broke adrift during a storm, and. before fresh lines were made fast so as to hold her, ran into a canal boat lying on the other side of the slip, broke her fastenings and beached her. The canal boat was not in charge of any person, and before the owner came back to the town had become a wreck. He made some effort to discover who did the damage, but could not find out anything for more than a year. Then he libelled the schooner: Held,, that, upon the evidence, the schooner was in fault, not being properly fastened, and not using due diligence in getting out fresh lines when her bow fasts gave way, and therefore the libellant must recover his damages.</p> <p>2. Lines, intended to hold a vessel, so fastened that they must be cast off when a strain comes upon them, are no lines.</p> <p>3. Costs must be awarded the libellant, notwithstanding his delay in bringing his suit, because of the willingness shown by the claimant to keep him in ignorance as to who did the damage.</p> <p>[NOTE. For decision overruling exceptions to the commissioner’s report as to damages, see Case No. 2,700.]</p>

<p>Case No. 2,706.</p> <p>Collision — Damages—Subsequent Injury.</p> <p>1. A schooner, having parted her lines during a storm, as she lay at a pier, was held liable for the damages occasioned to a canal boai against which she was driven. The canal boat had no one on board. She was injured by the collision. Her lines were also parted by the collision, and she was left so as to be subject to additional injury from the storm. The commissioner. to whom it was referred to report the damages sustained by the canal boat by the collision, reported as such damages the value of the boat as being totally lost. Exceptions were filed to the report. Held, that the schooner was liable for all the damages sustained by the canal boat, both from the collision and from the storm subsequently.</p> <p>2. That, on the conflict of evidence, the court would not disturb the finding of the commissioner who had had the witnesses before him.</p>

<p>Case No. 2,707.</p> <p>Libel ron Repaius.</p> <p>Where a vessel goes from her home port to another state for the express purpose of being repaired, and the owners have no personal credit, a libel will lie against her at her home port for the balance due for such repairs.</p> <p>[Cited in The James Farrell, 30 Fed. 501.]</p>

<p>Case No. 2,708.</p> <p>Rescission op Contract op Sale — Return of Subject Matter — Action on Promissory Note —Defenses.</p> <p>1. To rescind a contract for the sale of a chattel, the property must be returned, unless it be valueless to both parties.</p> <p>[Cited in Lyon v. Bertram, 20 How. (61 U. S.) 155.]</p> <p>2. A plea to an action on a note given for the consideration, which avers that the goods purchased are of no value to defendant, is not good.</p>

<p>Case No. 3,709.</p> <p>Liabilities of Common Carriers — Varying Bill of Lading — Custom and Usage.</p> <p>[1. Where the loss of a portion of a cargo is caused by a “danger of navigation,” within the meaning of that term in a hill of lading exempting the carrier from liability for a loss so occasioned, the carrier is entitled to freight upon the portion of the cargo actually delivered.]</p> <p>[2. The general usage and custom, in the transportation of goods by water, to stow them under deck, annexes to a clean bill of lading; and carriage on deck is such a violation of the contract as will render the carrier liable for loss by a “peril of the sea,’’ notwithstanding that the bill of lading exempts the carrier from liability for loss from such a cause.]</p> <p>[3. This legal import of the bill of lading implied by the general custom may be varied by proof of the custom of a particular trade, and the contract then withdrawn from the operation of the general rule requiring carriage under deck.]</p> <p>[Cited in The William Gillum, Case No. 17,-693.]</p>

<p>Case No. 2,710.</p> <p>Composition with Creditors — Validity—Secret Arrangement.</p> <p>If a debtor in embarrassed circumstances enters into an arrangement with all his creditors to pay them a certain proportion of their claims, in consideration of a discharge of their demands, and he privately agrees to give a better or further security to one than to the others, the contract with the other creditors is void.</p>

At law. Assumpsit on a policy of insurance on the schooner Topaz for three months, the risk to be continued at the same rate, if, at the time, she shall not have arrived at Providence. The loss was alleged to be by perils of the sea and stranding. Plea, the general issue. At the trial it appeared that the policy was underwritten on the 2d of April, 1810.

<p>Case No. 2,710a.</p> <p>Advances to Seaman by Broker — Liability of Vessel.</p> <p>[A vessel is liable for authorized advances to a cook, made by the broker who shipped him, although the cook subsequently deserts, as his continuance on board after being accepted is at the vessel’s risk.]</p>

<p>[In admiralty. Libel by Samuel W. Church and others, owners of the bark Empress, against $1,712.32 salvage money in the bark.]</p>

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

<p>[In admiralty. Libel by George Churchill and others against the ship British America to recover damages caused by collision.)</p>

<p>Case No. 2,716.</p> <p>Lien on Foreign Vessel for Supplies — Waiver —State Statute.</p> <p>1.Vessels belonging to one state when in the ports of another, are deemed so far foreign that a lien for necessary supplies is given by the general maritime law.</p> <p>[Cited in The E. A. Barnard. 2 Fed. 722.]</p> <p>2. The statute of New York was not intended to impair such liens; and if it were so intended,, it would be nugatory. Such liens are beyond the reach of state legislation.</p> <p>3. Taking the negotiable note of one of the owners, on time, is a waiver of such lien, upon the authority of The Nestor [Case No. 10,120].</p> <p>[NOTE. Libellants appealed to the circuit court, where the decree of the district court was reversed, and a decree entered for libellants. See Case No. 2,717, next following.]</p>

[Appeal from the district court of the United States for the district of Massachusetts. In admiralty. Held: that the debtor’s own note does not extinguish the lien; and the principle, in the present ease, is precisely analogous. 15 Yes. 347; 1 Wash. C. C. 191 [Harris v. Burchan, Case No. 6.117], 6th. There is no pretence of any equities by third persons, purchasing without notice, except as to one quarter owned by Mack.

<p>[In admiralty. Libel by John r. Smith and others against the brig Cimbus and cargo, for salvage.]</p>

In the matter of the application of the Cincinnati Enquirer Company for an order allowing them to examine the books and records of the court. Ex parte on demurrer to the petition.

<p>[In admiralty. Libel by Henry N. Wiekes, against the steamboat Circassian for supplies furnished in the home port.]</p>

In admiralty. On the 21st of September, 1SGG, the steamship Circassian returned to the port of New York, from a voyage to Antwerp. Held: that it is the right and duty of the court of the United States to enforce its possession when it is prior, as against a state officer. Slocum v. Mayberry, 2 Wheat. [15 U. S.] 1. 2.

In admiralty. The libel in this case was filed by James Adams to recover for stevedore services performed in taking in, storing, and in breaking out and landing cargo of the steamer Circassian. Exceptions were filed to it upon the ground that the services were not of a maritime character, and not within the jurisdiction of the court.

<p>Case No. 2,723.</p> <p>Salvage — Pleading.</p> <p>1. Labor in unloading the cargo of a ship, which is on fire and in danger of destruction, attended with danger to life, and of unusual severity by reason of the danger to the ship, is not simple stevedore’s services, and would be ground for sustaining an action in admiralty to recover compensation for them.</p> <p>[Cited in Francis v. The Harrison, Case No. 5,038.]</p> <p>2. The contract to render such services is none the less a maritime contract, because the compensation did not depend on the result.</p> <p>[Cited in The Kate Tremaine, Case No. 7,622.]</p> <p>3. Where a libel had been dismissed on exception, but leave had been given to amend, and a new libel was filed setting out a valid cause of action, but adding a second cause of action, which was substantially a repetition of the first libel which had been dismissed: Held, that this was an irregular and improper mode of pleading, and the libel must be dismissed, as not within the spirit of the order giving leave to amend.</p>

<p>In admiralty. This was a libel by Daniel Steineman and Hermann Ludwig, composing the firm of Daniel Steineman & Co., of Antwerp, against the steamship Circassian, to enforce payment of a bottomry bond for the sum of 61,133 francs, given by the master to the libellants in the port of Antwerp.</p> <p>The material facts were as follows: The Circassian was an ocean steamer, owned by one William Salem, a resident of New York, and was by him dispatched to Antwerp, as the first vessel of a line of steamers which it was proposed to establish between the ports of Antwerp and New York. The intention was to have such line conducted by a corporation, and such a corporation, called the Continental Mail Steamship Company, had been organized, and its officers designated; but its capital was not yet paid in, and it had neither the title nor the possession of the Circassian, or any other steamer. The Circassian, accordingly, went out under the command of a master appointed by Salem, her owner. Herman Troost was on board, in the capacity of secretary of the Continental Mail Steamship Company, and was also authorized by the owner to make the necessary arrangements, on the part of the ship, for the opening of the line in Antwerp. Upon the arrival of the steamer in Antwerp, the libellants were duly appointed agents of the proposed line, and the vessel ■was placed in their hands, as agents and consignees. They collected the inward freight, made arrangements with the government for the carriage of the mails, advertised the vessel to sail with the mails and passengers on a day certain, and procured for the vessel, furniture, bedding, provisions, &c., necessary and proper for a passenger steamer on the intended route. Passengers were also engaged, who paid their passage-money in advance. Freight also was shipped, on part of which the freight was paid in advance. After the vessel had fairly entered upon the adventure, and passengers had been engaged, the vessel was seized under an attachment issued to collect a personal debt of Salem, the owner; he being then insolvent, and his paper under protest in Antwerp. Efforts were at once made in court to procure the discharge of the attachment, but without success. Efforts to procure money sufficient to discharge the debt, for which the attachment was issued, were also made, and the master and Troost went to London for that purpose, but failed, An additional embarrassment arose out of the fact that the breaking out of the cholera had interfered with the engaging of passengers, so that, as the day of sailing approached, it appeared that the total amount of freight and passage-money collected .was insufficient to pay the advances actually made by the agents towards fitting out the vessel for the voyage. When the sailing day arrived, the alternative was thus presented to the master of procuring, at once, the amount of the attaching creditor’s claim, or of announcing that the departure of the steamer must be postponed until the termination of the legal proceedings by a judicial sale of the owner’s interest in the vessel, which, with a vessel situated like this, was equivalent to a breaking up of the voyage, an abandonment of the line, and a termination of the prospect of a regular employment for the steamer on the proposed route. The result of such a breaking up of the voyage, or even of any extended delay in the departure of the steamer, would have been to encumber the vessel with maritime liens to the passengers and freighters, for damages and freight pre-paid, which would, in all probability, have far exceeded in amount the debt for which the vessel was attached. In this emergency it was agreed between the master and Steineman & Co., the libellants, that they should procure the release of the vessel from the attachment, by guaranteeing the payment of the demand, and should be secured therefor, and also for the amount of their previous advances, by a bottomry bond upon the vessel. The release of the vessel was accordingly effected as thus proposed; the master executed to Steineman & Co. the bottomry bond in suit, and the steamer sailed on her appointed day, with the cargo and passengers which had been engaged. The voyage was performed in safety. Upon the arrival of the vessel in New York, she was taken possession of by Ernest Fiedler, who held a large mortgage upon her, which he proceeded to foreclose, and who, when she was proceeded against in this action, appeared as claimant, and disputed the validity of the bond.</p> <p>1. The bond was absolutely necessary to protect the interest of the respondent, who was a mortgagee, inasmuch as the ship was liable for the engagements for freight and passage entered into by the captain, in the regular course of business, and within the scope of his authority as master. As to this liability the following authorities are quite conclusive: The Phebe TCase No. 11.CKUJ; The William & Emmeline [Id. 17,GST]; The Freeman v. Buckingham, IS How. [59 U. S.] 1S2; Thomas v. Osborn, 19 How. [GO U. S.] 22; Jackson v. The Julia Smith [Case No. 7,136].</p> <p>2. The general principle that the master cannot give a valid bottomry bond to a creditor, to secure an antecedent debt, where that is the primary object of the bond, and without the existence of other circumstances making it necessary, is not denied, but fully conceded. The principle is sustained by numerous authorities. Greeley v. Smith [Case No. 5,750]. The same general rule was laid down in Hurry v. The John & Alice [Id. 6,023], where it is accurately said, that the money must be advanced “for a purpose necessary to enable the master to complete the voyage he was about to perform at the time the necessity existed for making the contract.”</p> <p>3. It is obvious that this rule can have no application to a case where the primary object is not to secure an antecedent debt, and where the contract is not with the creditor, but where, on the contrary, the advance is absolutely essential to enable the master to “complete the voyage he was about to perform when the necessity arose,” and likewise essential to enable the ship to fulfil her engagements, and escape condemnation for a failure to do so; and where the advantage to the creditor is incidental, but unavoidable. While necessity may be said to be the mother of bottomry bonds, yet the necessity itself may spring from innumerable causes. The law only requires that its existence should be shown, in order to pronounce the bond valid. The origin of that necessity is a comparatively unimportant consideration. “The advantage of allowing the master to take up money on bottomry consists in its enabling him to procure assistance when no other resource is at hand, and the adventure would be frustrated if no other resource was afforded.” Smith Merc. Law, p. 418. “Necessity, to use the expression of Lord Stowell, is the vital principle of hypothecation, and the court of admiralty will consider every circumstance; will go into the whole history of the voyage, in order to determine whether there be that necessity without which an instrument of hy-pothecation is void.” Id. p. 419. “Necessity creates the law, it supersedes rules, and whatever is reasonable and just in such cases is likewise legal.” Sir Wm. Scott in the case of The Gratitudine, 3 C. Eob. Adm. 240, 2GG. See, also, The Nelson, 1 Hagg. Adm. 169; The Radamanthe, 1 Dod. 201; The Gauntlet, 3 W. Eob. Adm. 82. “That is a sufficient necessity which would induce an owner to do it on the spot.” The Fortitude [Case No. 4,-953J. “The master may hypothecate the vessel in a foreign country, to enable him to return home, though the origina) voyage was broken up by capture, and the compulsory sale of the cargo.” Crawford v. The William I’enn [Id. 3,373]. “In all these cases much must be left to the .master’s discretion, and he must exercise it conscientiously, for the general interest. If he acts bona fide, and with reasonable care, the rights of the parties are bound up by his acts, although it should afterwards be found that he had committed an error of judgment, and might have acted more beneficially in another manner.” Judge Story in The Packet [Id. 10,654]. Bottomry bonds are the creatures of necessity and distress, and may be expected, therefore, to assume different shapes, which cannot be limited except by the condition of a faithful and beneficial discharge of the authority exercised in granting them, as being necessary for the preservation of the property. The Vibilia, 1 W. Eob. Adm. 7.</p> <p>4. We come now to consider, in the light of the foregoing authorities, the precise question, whether, in any case, a bottomry bond may be given to obtain the money necessary to liberate a ship from arrest, where the cause of arrest is a claim constituting per se no lien on the ship, and to secure which a valid bottomry bond could not be voluntarily given. In examining this question, it will appear: 1. That in no case, English or American, is it decided that a valid bottomry bond cannot be given to relieve a ship from such arrest. 2. That in all the American cases, in which the question has arisen, it has been held that a yalid bottomry bond may be given, if necessary to relieve the ship from such arrest. 3. That a stronger case of necessity would not be likely ever to arise than the one which gave birth to this bond.</p> <p>The attention of the court is invited first to the American doctrine on this subject. Mr. Parsons says: “Nor can a master make this bond merely to secure former debts of the owner, but might, perhaps, if it were the only way to liberate the ship from arrest and sale for those debts.” 1 Pars. Mar. Law, 417. And again, at page 423: “So we hold, generally, that if the liberation of the ship from arrest for debt is a good cause for bottomry, yet, if the attaching creditor is himself the obligee, the bond is invalid.” Judge Story was clearly of the opinion that the master might raise money on bottomry to redeem a ship from actual arrest, while “a mere threat to arrest the ship for pre-existing debt would not be sufficient, nor could a valid bond be executed to the creditor himself.” This opinion must be taken as the opinion of the whole court, inasmuch as thdre was no dissent from the judgment, or the reasoning on which it was founded. The Aurora, 1 Wheat. [14 U. S.] 105. A bottomry bond is good if bona fide made in a foreign port to relieve a ship under arrest at the suit of a foreign creditor, but it is doubtful if the creditor himself could acquire a valid title thereby. Abb. Shipp, p. 157, note. In the case of The Boston [Case No. 1,669], decided by Judge Betts in 1832, the precise question was involved, and was decided. Certain creditors of the ship for debts incurred on a previous voyage threatened to arrest her, whereupon another person bought the debts, and to secure them, took a bottom-ry bond. In the course of a very elaborate opinion, the judge says: “The pre-eminent security of bottomry, with its high privileges, is sanctioned only when a ship is under positive arrest, and cannot take effect when the money is advanced only to avert a menaced arrest” It is plain, therefore, that according to the received American doctrine, this bottomry bond was authorized by the necessities of the ship, and is valid.</p> <p>The English rule is thus stated in Mac-lachlan on Shipping: “The want which exacts the loan must be such as, if not supplied, would prevent the prosperous completion of the voyage, not extending to the master’s own debts, or the discharge of his person from prison, or even the liberation of the ship herself from arrest without other circumstances combined.” In Smith v. Gould, 4 Moore, P. C. 21, Lord Campbell expressed the opinion that a master might hypothe-cate his vessel in any case, where it might be arrested and sold for a demand for which the owner would be liable. In an earlier case, The Augusta, 1 Dod. 283, Sir William Scott uses this language: “It has been said that the party might, by the law of Russia, have detained this ship till the money was repaid, but 1 do not think that circumstance alone will be sufficient to convert this into a case of hypothecation.” In The Lochiel, 2 AA'. Rob. Adm. 44, Dr. Lushington says: “Lord Stowell, when he decided the case of The Augusta, entertained great doubt, in the first instance, whether a vessel could be legally hypothecated merely to avoid her detention, but upon subsequent consideration, he was inclined to hold that it might be an additional reason for hypothecation, and that opinion I also adopted in a case that came under my own consideration, that of The Vibilia [1 AY. Rob. Adm. 7].” This case was decided in 1843. In 1849, The Osmanli was decided, a case that will doubtless be mainly relied upon by the respondent, but which is in nowise hostile to the claim of the libellant in the case at bar, as to the point actually involved and decided. Mongredieu owned the larger share in, and had the management of the ship. Messrs. Duckworth & Co. were the agents of the ship at Malta. On the occasion in question she put into Malta, and applied to the agents for coal, who, instead of supplying it, arrested the ship for a balance of Mongredieu’s account current Leonard, the managing partner of Duckworth & Co., persuaded the master to give a bottomry bond, and undertook to find a person to advance the money. He did so. Messina nominally advanced the money, and the bond was given to him. There were no peculiar circumstances in the case. After laying much stress on the fact that the bond was, in substance, a bond to the ship's agents to secure an antecedent debt, the court declared it invalid. 3 AV. Rob. Adm. 198.</p> <p>From these authorities, then, it would seem to be a fair and accurate statement of the present English rule on this subject, to say that, independent of other circumstances rendering it necessary and proper, a valid bottomry bond cannot be given, directly or indirectly, as security for an antecedent debt. But a valid bottomry bond may be given to relieve a ship from arrest, where that is the primary object, and the security of the debt an incident, or. as it were,' an accidental circumstance, the circumstances of the ship being such as to render it prudent and judicious to obtain her discharge in this mode. And it will, therefore, upon careful examination, appear that there is really no or very little conflict between the English and American courts, the latter being, if anything (as they always are in admiralty cases) rather more liberal and catholic than the former. And it may be safely asserted that under this rule, the bond in question would be sustained owing to the overpowering necessity that gave birth to it. This class of bottomry bonds bears a very strong analogy to a ransom bill. The creditor in the former derives a benefit from the necessity which he has imposed upon the ship, as does the captor in the latter; but the obligation is given, not that this benefit may be received, but that the ship may go free.</p> <p>5. It is to be inferred from the answer that it is to be contended that it was the duty of the master to communicate with his owners, but inasmuch as his owners were in New York, and he was in Antwerp, it is submitted that this point is quite destitute of plausibility. I Pars. Mar. Law, p. 414 et seq.</p> <p>1. The bottomry bond, so far as it embraces the sum of 10,575 frs., the general balance of account between the steamship Circassian, and the libellants, her consignees, is invalid for the following reasons: Advances having been made, even though by a stranger, it is too late to secure them by a subsequent bot-tomry, unless that security was in contemplation at the time the advances were made, or unless the advances were made upod the exclusive credit of the ship; and in respect to consignees, no presumption arises, that in making advances they do so either relying upon the credit of the ship, or in contemplation of the security of a bottomry bond. On the contrary, the true rule is, that in order to enable a consignee to secure himself by a bottomry, if, indeed, he can do so in any case, he must give notice of his intention to do so, before making the advances. 3 Kent, Comm. 460; The Augusta, 1 Dod. 2S3; The Jane, Id. 401; The Hunter [Case No. 6,904]; The Hero, 2 Dod. 143; The Lord Cochrane, 2 AV. Rob. Adm. 320; The John & Alice [supra]; Hurry v. Hurry [Case No. 6,922]; Liebart v. The Emperor [Id. 8,340]; Selden v. Hendrick-son [Id. 12,039], and cases cited; The Yuba [Id. 18,193]; The Panama [Id. 10,703]. Here the advances were made by Steineman & Ludwig, relying upon the funds which they had, and would receive as consignees, and before a bottomry bond for them was in contemplation.</p> <p>2. The lender on bottomry must exhibit an account of the items advanced, with sufficient proofs to support them, to enable the court to judge of their necessity, and in order that they may be separately weighed and considered. The Aurora, 1 AVheat. [14 U. S.] 96; The Bridgewater [Case No. 1,865], and cases cited. The only account exhibited, in the case at bar, is the general one, amounting to frs. 52,886. It shows, in a great measure, only the kind of supplies and materials furnished, and not the things, nor their amount. “Ship chandlery,” to the amount of frs. 7,873.04, and “cash to captain, frs. 12,300,“ are general terms. The court can form from ■them no opinion as to the necessity of such expenditure. It is incumbent upon the creditor who claims an hypothecation, to prove both the actual existence of the necessity of those things which give rise to his demand, and that the funds requisite to obtain those things could be procured in no other way than by the execution of a bottomry bond. The Aurora, 1 Wheat. [14 U. S.] 9G. (a) As to the necessity of the items, it must be shown that the expenditure was for the safety or security of the ship, or for repairs or necessaries which were reasonably fit and proper for the completion of the voyage, and such as a prudent owner would have ordered, under all the circumstances, had he been present. Prince of Saxe Cobourg, 3 Hagg. Adm. 392, 3 Moore, P. C.; The Reliance, 3 Hagg. Adm. 74; Selden v. Hendrickson [Case No. 12,639], and cases cited; The Orelia, 3 Hagg. Adm. 75; Rucher v. Conynham [Case No. 12,106]; The Hersey, 3 Hagg. Adm. 404; Hurry v. Hurry [supra]; The John & Alice [supra]; The Augusta, 1 Hod. 2S7; The Medora [Case No. 9.391], and cases cited; The Osmanli, 3 W. Rob. Adm. 198; The Lord Cochrane, 2 W. Rob. Adm. 320; The Aurora, 1 Wheat. [14 U. S.] 96; The Virgin, 8 Pet. [33 U. S. 538]; The Fortitude [Case No. 4,953]; 3 Wash. C. >C. 484 [Crawford v. The William Penn, Case No. 3,373]; Wainwright v. Crawford, 4 Dali. [4 U. S.]. 225; Merwin v. Shailer, 16 Conn. 489; 3 Kent, Comm., and cases cited; 1 Pars. Mar. La-w, p. 422, and cases cited; Burke v. The M. P. Rich, Cliff. R. 314 [Case No. 2,161], and cases cited, (b) Libellants having failed to exhibit an account of the items covered by their general balance of account, must show the actual existence of the necessity of their •entire expenditure, in order to sustain the bot-tomry given to sustain a general balance. This they fail to do. (c) Nor can the bot-tomry bond be sustained on the plea that the •consignees might have arrested the ship for them advances by the general maritime law. They must meet the same question of necessity as to the items furnished, in order to sustain their claim to a maritime lien, that they have to meet in order to sustain a bot-tomry bond (Pratt v. Reed, 19 How. [60 U. S.] 359); and a mere liability to arrest will not sustain a bottomry bond (The Osmanli, 3 W. Rob. Adm. 19S; The Prince George, 4 Moore, P. C. 21; The Augusta, supra; The Royal Arch, Swab. 279), nor will a mere threat to arrest the ship, though it be for a debt of the ship (The Aurora, supra; The Boston [Case No. 1,669], and cases cited). <d) Advances to the officers and crew are not such necessaries as will justify the giving of a. bottomry bond. The Cognac, 2 Hagg. Adm. 385; Furniss v. The Magoun [Case No. 5,163]. In the former case, advances ■paid before the termination of the voyage, and included in a bottomry bond, were disallowed, on the ground that it was a premature payment, and might never become due, and, if paid in this form, might fall upon the owners of the cargo. In the case at bar, if such advances were allowed, they would fall upon a prior mortgagee. And, on the general principles of maritime law7, the W'ages of the crew are made to depend upon their fidelity to the ship when she is in distress. 3 Kent, Comm. 274, and cases cited; 2 Pars. Mar. Law, 589, and eases cited; Abb. Shipp. Marg. p. 173. (e) The libellants cannot avail themselves of the words “fit and proper,” found in the opinion of Judge Story, in the case of The Fortitude, supra, for these words are qualified by the expression, “such as a prudent owner w7ouid have purchased, had he been present.” The conduct of the consignees, in the case at bar, was far from prudent. With the ship under attachment for frs. 39,000; forewarned, by the prevalence of cholera, that their expectations of procuring a full complement of passengers would not be realized; professedly aware of the impossibility of raising funds upon the credit of the owner of the ship, or of the Continental Mail Steamship Company; and fully aware of the existence of Mr. Fiedler’s mortgage for $90.000 on the ship, they made no effort to check the reckless expenditure proven in this case, but paid bill after bill, without investigation or inquiry, and, at the last moment, sought to save themselves from loss, by shifting it upon the shoulders of the mortgagee. Such conduct, if it be not willfully fraudulent, is so grossly negligent as to be virtually so. Libellants have entirely failed to prove any effort to obtain the money necessary to cancel their claim for general balance of account in any other way than by the giving of a bottomry. As to the. general balance of account, there is no evidence of ¿he necessity of a resort to bottomry, in order to secure it. It does not follow that, because no one would advance frs. 39,000, without the security of a bottomry bond, that the sum of frs. 17,000 could not be raised without that security; and, indeed, libellants nowhere say or pretend that it could not.</p> <p>3. The bond in suit is not only clearly invalid. so far as it sought to secure the general balance of account, but it is equally invalid as to the amount raised upon it to release the vessel from arrest for the debt of Salem. The attachment of the vessel at Antwerp was to enforce the payment of a debt due from William Salem, growing out of bills of exchange drawn on him, and protested for non-payment. By the general maritime law, such debt did not constitute a maritime lien upon the Circassian, nor is there any evidence that it did by the laws in force at Antwerp. The prayer of the request to seize the Circassian invokes a principle of equity, that creditors may be protected by the “order of the courts of the country where the personal property or real estate of a foreign debtor is situated, even though the creditor be also a foreigner.” In every respect, so far as the papers disclose, tlie proceedings at Antwerp were precisely identical witli our state proceedings by attachment against non-resident debtors, and could no more constitute or give rise to a maritime lien, than could an attachment, issued out of the courts of the state of New York against a non-resident debtor, and levied upon his interest in a foreign ship. Therefore, only the interest of William Salem, over and above the mortgage, could have been attached, or sold, had the proceedings so commenced terminated in a judicial sale. The vessel was not seized under a law giving a specific lien upon the ship, as con-tradistinguished from a lien upon the interest of the owner in the ship, and the cases in which the master may hypothecate his ship to procure Tier discharge from arrest to enforce such lien do not apply. In such cases, good sense and equity support the bot-tomry, because: (a) It has been given in discharge of a debt, by which the ship has been preserved, or its value enhanced — i. e., a debt for repairs, supplies, or to relieve the vessel from distress, enable her to perform her voyage and earn freight — and has imposed no new burden upon the ship. In such a case, the lien has only changed its form from a tacit to an express one, with the addition of maritime interest, (b) The liability of a ship, in specie, for supplies and repairs furnished in a foreign port, and for advances made to relieve her when in distress from casualties incident to navigation, may be presumed to be known to all interested in her; and the law presumes their assent, when, under such circumstances, her master, unable to communicate with her owners, gives a bottomry for her relief. In the case at bar, however, the above reasons do not apply. Here, the question is simply, can a general creditor, finding a ship of his insolvent debtor in a foreign port, by means of an attachment, turn his debt from a simple contract debt into a maritime one, and thus secure the advantage of maritime interest, and the security of a bottomry? This proposition cannot be maintained. (1.) It would be unjust, and productive of irreparable damage and confusion of rights and remedies, if a creditor could, at his option, enforce and secure his simple contract debt against a debtor happening to have a ship, or an interest in a ship, in a foreign port, by converting it into a maritime lien, by hy-pothecation, upon the entire ship. If he could do this, then, whether the debt were valid or invalid, honest or dishonest, outlawed or still existing, usurious or otherwise, the sacred obligation of bottomry would exist therefor; and, made payable at the end of a voyage other than to the home port, it would be enforced, without an opportunity to the owner to defend himself against a claim, which, in the place where the contract was made, could never be enforced. “It would seem against the policy of the law,” says Judge Story, in the case of The Aurora, “to permit a party in this manner to obtain advantages from his contract, for which he had not originally stipulated. It would hold out temptations to fraud and imposition, and enable creditors to practice gross oppressions, against which even the vigilance and good faith of an intelligent master might not always be a sufficient safeguard in a foreign country.” These results would follow, whether the bond were given directly to the creditor or to a third person. If, in the latter case, the bond could be allowed, the creditor would only need to secure the services of a friend, who should appear upon the scene as a stranger, and, after the plunder was secured, divide the profits with his principal. Rarely, if ever, could the collusion be proved to the court. (2.) In the case supposed, the rights of part owners must be overridden, and the bottomry, given to release the vessel from arrest for the debt of one part owner, must be enforced against the whole ship. The only remedy of the part owner, whose property has thus been, through the prostitution of legal process, appropriated to pay another man’s debt, is a civil action against a probably insolvent debtor. (3.) If the creditor be rapacious, or the debt exceed the value of the ship, then the cargo must be embraced in the bottomry bond; for, where the master may hypothecate the ship, he may the cargo also. (4.) Not only the foregoing consequences would result from the proposition that a bottomry bond may be given to release a vessel in a foreign port from an arrest for a general debt of her owners, but, as in the case at bar, mortgagees who in good faith have advanced their money to the owner upon the security of the ship,, are robbed of their priority, and postponed to subsequent general creditors, who, in their contracts, trusted to the personal credit of the owner, without any security. And, generally, it is not too much to say, that to maintain such a doctrine, would be to overturn well-settled principles of the maritime law, to the great detriment of commerce, and the security of property in ships and vessels. The bond in the ease at bar is not only void upon principle, so far as it includes the moneys given to release the vessel from arrest, but is also void according to the decisions in the following cases: The Osmanli, 3 W. Rob. Adm. 198; The Aurora, 1 Wheat. [14 U. S.] 90. Even if the bond could be sustained upon principle or authority as to the frs. 39,000, there is no proof of any debt due from Salem to the attaching creditor, or that the proceedings commenced by the attachment ever established any such debt, or indeed ever proceeded to a judicial determination, or that the libellants ever paid or were called upon to pay the debt, or any part of it, or to make good their guaranty to the attaching creditors, or any part of it. They stand only in the relation of sureties to Salem, their principal. They show neither that Salem has been called tip-on to pay the amount of the debt, nor that they have paid it, in his default, as sureties.</p> <p>4. The evidence shows clearly that, although means existed, and were available, by which the master and consignees of the Circassian could have communicated with the owners in New York, and received their advices as to giving a bottomry bond on the ship, long before the appointed day for sailing, and long before the giving of the bond, no such communication was made or attempted. The testimony is positive, that they telegraphed to the owners in New York the arrival of the Circassian at Antwerp, and that by the same means they could have asked instructions as to the proposed bot-tomry bond. They should have done so. However great the necessity, and notwithstanding the presumption or probability that the owner cannot respond, the authority of the master to execute a bottomry, arising as it does clearly ex necessitate, does not exist when he can communicate with the owner. There is no pretence of an attempt to do so in this case, nor any excuse for its omission. The omission to do so is fatal to the validity of the bond in suit. La Ysabel, 1 Dod. 274; Royal Arch, Swab. 275; Wallace v. Fielden, S W. Rob. Adm. 243; same case, 7 Moore, P. C. 398; The Bonaparte, S Moore, P. C. 4G0; The Lord Cochrane, 2 W. Rob. Adm. 333; The Hamburg 133 Law J. Adm. 116].</p>

<p>Case No. 2,725.</p> <p>Marshal’s Costs — Custodt Pees — Property Heed-under Several Processes.</p> <p>1. Where the marshal holds property under several processes in admiralty, the proper rule, as to the per diem custody fee, is to divide it equally, for each day, among the cases wherein, the vessel was held by process in force on that day, saving to the marshal, in case any party fails to pay his proper proportion, a remedy therefor against the other parties.</p> <p>2. No compensation for custody of property held by the marshal under process, in admiralty, can be made to him, beyond $2.50 per day.</p>

[Appeal from the district court of the United States for the southern district of New York.] This was an appeal from a decree of the district court, dismissing a libel in rem. The opinion of the district court was as follows: [The original report contains the opinion of the district court in full. For this opinion, see Case No. 2,720a.]

[Proceedings by the United States to condemn the British steamship Circassian, Hunt■er, master and claimant, and her cargo, as a prize. Decree of condemnation.]

<p>Case No. 2,728.</p> <p>Circuit Courts — Scheme of Organization — Districts of Missouri.</p> <p>1. The organization of the circuit court for the districts of Missouri is peculiar, and is provided for by the act of March 3, 1S57 (11 Stat. 197).</p> <p>2. By this act it was provided that Missouri should be divided into two districts, with but one circuit court for both, and that the two judges of the district court should sit in the circuit court: Held, that the act of April 10, 1869 (16 Stat. 44), creating the office and providing for the appointment of circuit judges, and declaring who should hold the circuit courts, did not exclude either of the district judges from the right still to sit in the circuit court.</p> <p>3. The scheme of the organization of the-national courts by the judiciary act and the purpose of congress in creating the new circuit judgeships, commented on by the circuit judge.</p> <p>NOTE. Confirmatory of the correctness of the foregoine view, see the act of July 1, 1870 (1C Stat. 179), passed since the above .opinion was delivered.</p>

<p>Case Wo. 2,729.</p> <p>Removal — Jurisdiction—Citizen or State and Foreign Citizen — Citizen op District or Columbia.</p> <p>1. A citizen of the District of Columbia brought a suit, in a state court, against a subject of Great Britain. The defendant removed the case into this court, under section 2 of the act of March 3d, 1875 (18 Stat. 470). Held, that, as the suit was not one between a citizen of a state and a foreign citizen or subject, it could not be removed.</p> <p>[Cited in Darst v. City of Peoria, 13 Fed. 5G4; Glover v. Shepperd, 15 Fed. 836.]</p> <p>2. A citizen of the District of Columbia is not a citizen of a state.</p> <p>^XOTE [from original report in 57 How. Pr. 175]. Before making the above application in the United States court, the plaintiff applied in the state court to vacate the ex parte order for the transfer upon the ground it was improvidently made, and the following opinion was filed thereon:</p> <p>McAdam, J. The record in this action has been removed to, and filed in, the United States circuit court on the usual petition and bond. Any order I might now make in the premises would be coram non judice (see Dill. Rem. Causes, p. €7, note; Kanouse v. Martin, 15 How. [50 Ú. S.] IDS; Insurance Co. v. Dunn, 19 Wall. [86 U. S.] 214: Livermore v. Jenks, 4 How. Pr. 479; Mahone v. Manchester & L. R. Co., Ill Mass. 72; Stevens v. Phoenix Ins. Co., 41 N. Y. 149), for, as Judge Allen (in Bell v. Dix, 49 N. Y., at page 237) says: “It is a novel proceeding for a suitor to apply to a court from which the record and cause have been removed for relief which the court having jurisdiction can only effectually grant.” Having no jurisdiction. it would be unbecoming to say one word upon the merits of the application either pro or con, although I have fixed impressions in regard to the matter. If the United States court determines to remand the record to this court, the order will be respected and enforced.</p>

] Libel in admiralty. The libel states in substance as follows: That on or about the 22d day of October, last past, the libellants were the owners of a certain package, containing a large number of bank bills, issued by the president, directors and company of the Pacific Bank, in Nantucket, the particular denominations of which the libellants are unable to set forth, but the whole sum and amount whereof was $1,000, of the lawful money of the United States of America, and,…

This was a petition addressed to the supervisory jurisdiction of the circuit court, under the second section of the bankrupt act. Certain property of York & Hoover, the bankrupts, having been sold and the sale confirmed by the district court, sitting in bankruptcy, tills petition was filed to reverse the decree confirming the sale. [A motion to dismiss this appeal was previously denied.

[Bill of review of the proceedings in the district court of the United States for the western district of Pennsylvania, in the matter of Harbaugh, Mathias, and Owens, bankrupts, upon the petition of the Citizens’ National Bank, asking the joinder of additional alleged members of the firm as bankrupts.

<p>Case No. 2,734.</p> <p>Constitutional Law — Limits op Taxing Power —Aid to Phi vate Enterprises.</p> <p>1. Taxation can only he authorized for public as distinguished from private purposes.</p> <p>[See note at end of case.]</p> <p>2. A statute which authorizes a municipality to issue bonds, that can only be paid by taxation, for the benefit of a manufacturing enterprise of private persons, is void, because it violates the fundamental rights of property, since the purpose is essentially private in its nature, although the public may be incidentally benefited.</p> <p>[Cited in Jarrott v. Moberly, Case No. 7,223.]</p> <p>[See note at end of case.]</p> <p>NOTE [from original report]. Before the decision in the Iola Case [Case No. 3,061], it is estimated that over $2,000,000 of bonds had been issued in Kansas to aid private enterprises, such as hotels, manufactories, etc., and at the time that decision was given, preparations to issue large amounts of Bimilar bonds were making.' To the judgment in that case and the Topeka Case, writs of error were prosecuted and both were affirmed by the supreme court in February, 1874. The opinion of the court was given in the Topeka Case, which was very carefully prepared by Mr. Justice Miller, and contains the sanction of that high tribunal to sound principles of constitutional law. which have been too often overlooked or disregarded in this country.</p> <p>[NOTE. The judgment entered in accordance with this opinion was affirmed by the supreme court on a writ of error prosecuted by the plaintiff, Mr. Justice Miller delivering the opinion of the majority of the court. The reasons of the affirmance were that the statute authorizing the town to issue the bonds in aid of a private manufacturing enterprise was void, because the taxes necessary to pay the bonds would, if collected, be the transfer of property of individuals to aid in the projects of gain and profit of others, and not for a public use, in the proper sense of that term, and also because the legislature had no power to pass the statute in question. Loan Association v. Topeka, 20 Wall. <87 TI. S.) 050.]</p>

<p>Case No. 2,736.</p> <p>Bowers op Banking Corporation — Restriction as to Location and Business.</p> <p>1. Where a banking corporation, whose location and place of business was at Columbus, Ohio, had power by its charter to deal in bills of exchange, without restriction as to place: Held, that it could purchase such bills at Cleveland, Ohio, for the purpose of remitting to New-York the proceeds of paper belonging to the hank, collected at Cleveland.</p> <p>2. And it could even deal generally in exchange at Cleveland, through an agent there, -.with the funds thus collected and remitted.</p> <p>3. The eases of Bank of Augusta v. Earle, 13 Per. |38 1 . 8.] Ms), and of Tombigbee R. Co. •v. Kneeland, 4 How. [45 U. S.] 16, quoted and approved.</p> <p>4. The City Bank of Columbus, under the acts of Ohio incorporating it, passed March 17, 1838. and March 6, 1S45, and under the general banking law of Ohio, passed February 24, 1845, ■is restricted to Columbus as its location and .place of business. (Per Conkling, J.)</p>

At law. Assumpsit, tried before Mr. Justice Nelson and Judge Conkling, in October, 1847, at Albany. The action was on two bills of exchange, each for $1,000, drawn by one Haskell, at Cleveland, Ohio, on “Messrs. Wm. Beach & Co., Auburn, N. Y.,” payable at the Bank of Commerce in New-York, to the order of and endorsed by Haskell; one dated February 2d, 1846, and payable four months after date, and the other dated February 10th, 1846, and payable three months after date.

Plaintiff’s prayer: If the jury shall believe, from the evidence, that the plaintiff took the-bank-note which is the subject of this action, for a valuable consideration, in the usual course of the plaintiff’s business as a bank, fairly and bona fide, without notice or knowledge that said bank-note had been lost or stolen, or that any former holder had. been illegally dispossessed of it, then the plaintiff is-entitled to recover.

<p>Case No. 2,739.</p> <p>Interpleader by Bank — Enjoining Suit in State Court — Enjoining Prosecution in Federal Court.</p> <p>1. Upon the general principles of equity jurisprudence, a bank may, in a proper case, have relief by bill of interpleader against separate and adversary parties who claim title to moneys therein deposited.</p> <p>[Cited in Foss v. First Nat. Bank of Denver, S Fed. 190.]</p> <p>2. This court has no power to restrain or interfere with a suit prosecuted and pending in a state court, by enjoining the further prosecution of such suit.</p> <p>[Cited in Fisk v. Union Pac. R. Co., Case No. 4.S27; Reinach v. Atlantic & G. AY. R. Co., 58 Fed. 44.]</p> <p>3. But this court, in executing a jurisdiction vested in it, may, in a case of which it has cognizance, act upon parties who are suitors in a state court in relation to the same subject matter, so far at least as to compel their submission to such judgment as this court may render in the case.</p> <p>4. Where funds were deposited in a bank, and afterwards S., claiming the funds as his property, commenced a suit for their recovery in a state court against the bank and Y., the depositor of the funds, and, while that suit was pending, Y. commenced two suits in this court against the bank, to recover the funds and damages for their detention, the bank having no interest in the funds: Bold, on a bill filed in this court by the bank against S. and Y., that although this court would not decree an interpleader in the case, or enjoin the suit in the state court, yet it would enjoin the prosecution by Y. of his suits in this court, until the final decision of the suit in the state court.</p> <p>[Cited in Foss v. First Nat. Bank of Denver, 3 Fed. 190; Harrison Wire Co. v. Wheeler, 11 Fed. 207.]</p> <p>5.This court would give the parties the option to consent by stipulation to interplead in this court on the subject matter, and, in case they did so, would allow the bank to pay the funds into court, first deducting such costs and expenses as the court should allow.</p> <p>NOTE [from original report]. Order. The bill in this case having been read, and counsel for the respective parties having been heard, and the premises being fully considered, and it appearing to the court that the plaintiffs hold the assets and funds in the bill mentioned for the true owner, without having or claiming any right or interest therein, and that they are ready and willing to deliver the same over to whosoever may have right thereto; and it appearing to the court that the defendants Elizabeth Skelton and Mary Ann Frazer have heretofore filed their bill in the court of chancery of the state of New-York against the plaintiffs and the defendant Philip R. Yonge, alleging the full right and title to the said funds and assets to be vested in and to belong to the said Skelton and Fra-zer; and it appearing to the court that the plaintiffs and the said Yonge entered their respective appearances in said suit in said court of chancery, and that said suit is still pending and undetermined; and it further appearing to the court that after such suit was instituted the said Yonge commenced in this court, in his own name, two separate actions at law against the plaintiffs, one in trover, in which he seeks to recover the value of the said funds and assets, and the other in assumpsit, in which damages are demanded for the detention of the said assets, and that the plaintiffs have appeared in the said actions, and the same are yet pending and undetermined in this court: It is, therefore, considered by the court that the plaintiffs are entitled, to relief in this court in the premises; but, inasmuch as the suit instituted against the plaintiffs by the said Skelton and Frazer is prosecuted in the court of chancery of the state of New-York. and the proceedings before that tribunal are not within the cognizance of this court, or subject to its control," it is considered by the court, that so much of the prayer of the said bill as seeks an interpleader in the premises, and prays the same to be decreed by this court against the above named defendants, ought not to be granted, and it is, therefore, ordered, that the same be denied. It is further ordered, that an injunction issue, according to the prayer of the bill, against the-.said Yonge, restraining him from further prosecuting his said actions at law, or either of them, instituted in this court against the plaintiffs, until the final decision of the said suit pending in the court of chancery of the state of New-York, unless the said Yonge and Skel-ton and Frazer shall, within twenty days from the date of this order, file their stipulation in writing in this court, electing to interplead between themselves in this court, in respect to the subject matter aforesaid; and, in case of such interpleader between the said parties, it is ordered that the said plaintiffs thereupon pay into this court the funds and assets aforesaid, first deducting therefrom such their costs and expenses as shall be allowed them by the court.</p> <p>[NOTE. For denial of a motion to dissolve the injunction granted by the foregoing order, see Case No. 2,740.]</p>

<p>Case No. 2,740.</p> <p>Jurisdiction — Enjoining Suits — Rights of Suitors in Federal Courts.</p> <p>1. This court has power, in a proper case, to-prohibit a non-resident plaintiff from prosecuting an action against a defendant residing within this state.</p> <p>2. A party entitled to sue in this court by reason of a constitutional qualification, acquires no right to any standing here different from what he would have in any other tribunal competent to take cognizance of his case.</p> <p>3. W’henever. therefore, jurisdiction over his case has attached, this court will proceed with it conformably to the general principles of law, and to the usage and practice of the court.</p> <p>4. The circuit courts of the United States have power to control and stay actions pending before them, either by order on the common law side of the court, or by injunction on the equity side.</p> <p>5. But they will not exercise such authority over actions pending in a state court, nor will a state court interfere with actions pending in the federal courts.</p> <p>6. The decision in this same case [Case No. 2,739], that this is a proper case for this court to stay by injunction an action at law pending here, reviewed and affirmed.</p>

<p>Case No. 2,741.</p> <p>Power of Sale bt Pledgee — Condition Precedent-Waiver bt Act of Pledgor.</p> <p>1. Where the giving of a certain notice is made the condition precedent of the execution of a power of sale, and performance of the condition has been rendered impossible by the act of the party for whose benefit it was made, the power may be executed without the giving of the notice.</p> <p>2. Certain bonds were pledged by a bank as security for the performance of an agreement between the bank and the pledgee, and the pledgee was empowered to sell the bonds in •case of breach of the agreement by the bank, on thirty days’ notice to it of the intended sale, and credit the proceeds on a debt due from the bank. The bank afterwards failed, closed its place of business, and thereafter transacted no business, and had no office nor acting officers; and did not perform the agreement. About three years afterwards, the pledgee sold the bonds in good faith at their market value, without notice to. the bank. Held, that the giving of the notice had been rendered impossible by the act of the bank, and that neither the pledgee nor its agent in the sale was liable for a conversion of the bonds.</p>

<p>Case No. 2,742.</p> <p>Assignment of Debt bt Creditok of Insolvent to Debtor of Same — Offset.</p> <p>A creditor of an insolvent who has reasonable ground to believe him to be such, can assign his demand to a debtor of the insolvent whose debt is not yet payable, so as to enable the latter to offset the demand so assigned to him against the debt due from him to the insolvent, the latter debt having become due and payable at the time the offset is claimed.</p> <p>[Cited in Hitchcock v. Rollo, Case No. G,-535; Hovey v. Home Ins. Co., Id. 6,743; Lloyd v. Turner, Id. 8,436; Mattocks v. Lovering, 3 Fed. 213.]</p>

Bill filed against the city and tax collector of Paducah to enjoin the collection of a tax upon national bank shares. The legislature in 1SC7 passed an act to tax the shares of national banks, but provided that the same should not exceed that upon state bank shares. The. amount so assessed under the state law7 wms fifty cents per share. This amount complainant had paid for years to the state on its shares. The city of Paducah in 1S71 levied a tax of $1.05 on all bank shares.

<p>Case No. 2,744.</p> <p>Marine Tort — Running over a Seine — Negligence..</p> <p>1. A steamship, coming into New York, in charge of a pilot, ran over a seine, in which had been inclosed a quantity of fish which are caught for the manufacture of fish oil and guano. A libel was filed against her, to recover damages: Held, that, inasmuch as it appeared that the steamship was in a regular course of navigation, and that the seine was in such a part of the channel that, if the steamship had deviated to go around it. she would have been in danger of grounding, the seine was an obstruction to navigation;</p> <p>2. As the seine was put in the way while the ship was in sight, coming in. and as no negligence was shown on the part of the ship, the libel must be dismissed.</p>

In admiralty. This was a libel by Robert Brittain, a seaman, for additional wages. The vessel libelled was employed in trade between the port of Sarnia, in Canada, and the city of Chicago, in connection with the Grand Trunk Railroad. On the twenty-fourth day of May, 1870, at Chicago, the libellant shipped on board as first mate on verbal contract with the master, at seventy dollars per month, no shipping articles being signed.

This was- a libel by John Ryall, administrator, <S:c., of John Ryall, Jr., alleging, that, in 1871, John Ryall, Jr., who was a child of five years of age, took passage on the steamship City of Brussels, with his mother, at Liverpool, to be carried to New York, for a good consideration, that, while on the voyage, the child was poisoned by carelessness on the part of the officers of the vessel, and died on board, and that the libellant had been appointed administrator; and it…

<p>Case No. 2,747.</p> <p>Collision at Sea — Steamer and Schooner— Fog — Speed—Damages.</p> <p>1. A schooner was sailing about south half west, the wind being about east south-east. The night was foggy. The green light of an approaching steamer was seen about two points on her starboard bow, and the schooner kept on without chancing her course till the collision which ensued. The steamer was going between eight and nine knots an hour. The light of the schooner was seen about a quarter of a mile distant, on the steamer’s starboard bow. Her engine was stopped and reversed, and, being a propeller, she turned her head to starboard at right angles, and her stem struck the schooner on her starboard side. Two of the schooner’s crew, when the vessels were together, jumped aboard the steamer. The schooner also received damage by chafing, while the vessels were together, and the steamer charged negligence upon her, in not adopting proper and speedy measures to free herself: Bdd, that the collision was caused by the too great speed of the steamer in the fog.</p> <p>[Cited in The City of Panama, Case No. 2,-764.</p> <p>2. The loss of men by the schooner under the circumstances, if crippling her, was chargeable to the steamer, she being in fault for the collision.</p> <p>8. The steamer was also responsible .for any injury caused to the schooner by chafing while the vessels were together.</p>

<p>In admiralty. These were two libels filed by [Hudson S. Rideout aud others and Charles Robinson, respectively] the owners of the schooner Alice S. Oakes and her cargo, against the City of Hartford and the Unit, to recover for the loss of the schooner and her cargo, by a collision with the City of Hartford, in the East river, on the morning ■of the 27th of March, 18G9. The schooner was in tow of the Unit, lashed on her port side, another schooner being lashed on the starboard side of the tug. and was bound up the East river towards Hell Gate, while the steamboat was bound down the river to her berth. The facts sufficiently appear in the opinion of the court</p>

<p>Case No. 2,749.</p> <p>Collision in Hell Gate — Steamer and Schooner-Keeping Course — Choice op Courses.</p> <p>1.A steamboat going eastward against an ebb tide, through Hell Gate, at night, as she approached the bend in the channel at Hal-lett’s Point, saw the red light of a schooner coming through the Gate. The wind was about north northwest. The light was seen on the-starboard bow of the steamboat. The latter went on and ported her wheel, so ns to go around the Point and meet the tide head on. Just before she reached the tide, the schooner, being then about two or three hundred feet from the steamboat, and on the steamboat's port bow,, starboarded her helm, and let go her sheet, to turn around the Point into the channel in which the steamboat was. This movement brought the green light of the schooner into view from the steamboat, and shut in her red light, whereupon the engine of the steamboat was stopped, and her helm was put amidships, but the vessels came into collision, the stem of the steamboat striking the starboard side of the schooner aft of the main rigging. Edil, that, in that difficult and dangerous channel, the steamboat was in fault in not waiting, before turning Hallett’s Point, until she knew whether the schooner was intending ,o turn into the channel in which the steamboat ivas, or not.</p> <p>[Cited in The City of Springfield, 26 Fed. 161;: The Dasori, 47 Fed. 331.]</p> <p>2. Although the schooner intended all the time to take the east channel, and took the necessary and proper steps to turn into it, and in that sense kept her course, yet, seeing the steamboat as she did, and knowing that the latter had but one course to take if she kept on, while she herself had the choice of turning into the east channel or taking either one of two other" channels, she was in fault in not holding herself' up to the wind, and refraining from starboarding and letting her sheet go, until she had gone by the steamboat.</p> <p>[Cited in The Iron Chief, 53 Fed. 512.]</p> <p>3. Both vessels were in fault, and the damages must be apportioned.</p> <p>[NOTE. A subsequent decree awarded costs to libellants. See Case No. 2,750.]</p>

<p>Case No. 2,760.</p> <p>Collision — Costs—Apportionment of Damages.</p> <p>In a collision case, both vessels were held to have been in fault, and an apportionment of the damages was decreed. No cross-libel had been filed, and the libellant recovered half his damages. He now applied for costs: EcH, that the general rule in this district, in such cases, is that costs will be allowed to the party who recovers.</p> <p>[Cited in Vanderbilt v. Reynolds, Case No. 10,-831); The Hercules, 20 Fed. 205.]</p>

<p>Case No. 2,751.</p> <p>Rate of Wiiaufage at Bulkhead — Costs.</p> <p>A steamboat, 272 feet long, occupied a berth at a bulkhead in the city of New York for 28 days. The bulkhead was owned by three parties. B. owned one hundred feet of it, all of which was occupied by the steamboat or by lines which ran from her bow forward to a spile at the corner of the bulkhead. F. owned the hundred feet next, all of which was occupied, and K. owned one hundred and fifty feet next, seventy-five feet of which was occupied. The rate of wharfage which, by the statute of the state of New York, the steamboat would be called on to pay for a single berth was $9.50 a day. B. filed a libel, claiming to recover of her for wharfage $9.50 a day. The owners of the steamboat claimed that he was only entitled to his proportionate share of the $9.50 a day and tendered and paid into court $89.22: Held, that the libellant was not entitled to recover $9.50 a day, but only his proportionate share of that sum, viz., 100-275 of it, and without costs.</p> <p>[Cited in The "William H. Brinsfield, 39 Fed. 219.]</p>

<p>[Appeal from the district court of the United States for the southern district of New York.</p> <p>[In admiralty. Libels by Hudson S. Ride-out, owner of tlie schooner Alice S. Oakes, and by Charles Robinson, owner of her cargo, against the steamboat City of Hartford and the steam tug Unit, to recover for a loss sustained by collision. The district court decreed in favor of libelants against the City of Hartford, ordered a reference to ascertain the damages, and dismissed the libels as to the Unit. See Case No. 2,74S. Prom this decree an appeal was taken to this court.]</p>

<p>In admiralty. In this case a libel was filed, in the district court, by the owners of the schooner Alice S. Oakes against the steamboat City of Hartford, and the steam-tug Unit, and a separate libel by the owners of the cargo of said schooner, against the same two vessels, to recover for the loss of the schooner and of her cargo, by a collision between the schooner and the steamboat, the schooner being, at the time, in tow of the steam-tug. The district court decreed against the steamboat, in each case, and dismissed the libels as against the steam-tug [Case No. 2,748]. On appeal [Id. 2,752], the circuit court held the steamboat and the steam-tug to have been, both of them, in fault, for the collision, and decreed a contribution, by each, of one-half of the amount of the loss, but directed further argument on the question whether, as the value of the steam-tug was less than one-half of the damages sustained by the libellants, in the two eases, the libellants could have recourse to the steamboat, for the deficiency, in addition to recovering against the steamboat the one-half of such damages.</p>

<p>Case No. 2,766.</p> <p>Seamen — Articles—Repeal — Shipping Commissioner’s Act.</p> <p>1. By the maritime law, as well as by the act of 20th July, 1700 (1 Stat. 131; Rev. St. § 4520), a written contract is required to be made on the shipment of seamen. That requirement of the act of 20th July, 1790, was not repealed by Act June 7, 1872 (17 Stat. 262).</p> <p>2. In the year 1873, a steamship bound from New York to the West Indies and Mexico, caused a crew to be shipped for that voyage by written shipping articles executed on board the ship before a notary public, and not before a shipping commissioner. Held, that this was in violation of the 13th section of the act of June 7, 1872, and that the ship had incurred the penalty provided by the 14th section. See sections 4512, 4513, Rev. St.</p> <p>[NOTE. The claimants appealed to the circuit court, where the decree of the district court was affirmed. See Case No. 14,797.]</p>

<p>Case No. 2,757.</p> <p>Collision on the Sound — Steamer and Schooner — Lookout.</p> <p>1. A schooner bound east and a steamer bound west came in collision in Long Island Sound in the night. Both vessels had proper lights set. The schooner averred that she was heading east half north; that the steamer was seen ahead a little on her port bow; that the-schooner was kept on her course, and the steamer changed her course to the southward across the schooner’s bows, and thus caused the collision. The steamer averred that she was heading due west, and that the schooner was seen ahead a little on the steamer’s starboard bow, and that the schooner changed her course to the southward and ran into the steamer! Held, that, on the evidence, the story averred on behalf of the schooner was correct, and that, she having kept her course, it was the duty of the steamer to have avoided her, and that the steamer, having failed to do this, was liable for the collision.</p> <p>2. Although the schooner had no lookout except her master, who was on her quarter-deck, yet, as the steamer was seasonably seen and kent in view and the schooner was kept on her course, there was no fault in reference to the lookout, which either charged the schooner with the collision or relieved the steamer from her responsibility for it.</p>

In admiralty. This was a libel in rem, filed by Pennell Churchman and others, in the district court, against the steam-propeller City of New York, to recover the price of 130 tons of coal, furnished to that vessel at Porto Cabello, on the isthmus of Darien. The propeller, at the time the coal was furnished to her, was under charter to the firm of Haight & Palmer, of New York. The purchase price of the coal was §2,080.

<p>Case No. 2,759.</p> <p>Collision — Steameh and Vessel at Anchor— Fog — Lookout—Speed—Lio hts.</p> <p>1. A steamboat, under way, colliding with a schooner at anchor in a customary anchorage nluee. heM to be presumptively in feult and bound to excuse herself, by showing either that the schooner was in fault or that the accident was inevitable.</p> <p>[Cited in The Florence P. Hall, 14 Fed. 417; The Rockaway, 19 Fed. 451; The Echo, Id. 454.]</p> <p>2. There being a fog, the steamboat was also held to be in fault for not having a lookout on her bow.</p> <p>8. The steamboat was also held in fault for being out of her proper track and for running at too great a rate of speed.</p> <p>4. The schooner was held in fault for having her light in such a position that it was hidden from view by her sails, which were set.</p>

<p>Case No. 2,760.</p> <p>Common Carrier — Loss bi Collision — Fire-Bill of Lading.</p> <p>1. A steamer and a schooner collided on Long Island Sound, in the night. The steamer was bound from New York to New Haven, and the schooner was closehauled, on a course nearly at right angles with the steamer’s course, and kept that course unchanged. The steamer also kept her course unchanged, until close upon the schooner, which she did not see, as she claimed, until it was too late to avoid her. The schooner struck the steamer on her starboard side, making a large hole in her, into which the water rushed. At'hen it reached the lower furnaces, flames burst out, and soon enveloped the boat. As the fire burnt off her upper works, and as she filled, she slowly sank, rolling over as she filled. Libels were filed against her, by several owners of the cargo on board. Some of the cargo was shipped on simple receipts, and some on bills of lading containing the following clause: “Dangers of the seas, fire, water, breakage, leakage, and all other accidents excepted — the risk of all which, it is stipulated, shall be borne by the owner.” Beld, that, if the schooner was not seen, as claimed by the steamer, until it was too late to allow of any change of her course, there was negligence on the part of those in charge of the steamer, in not seeing her sooner.</p> <p>2. The restriction in the bills of lading could not relieve the vessel from loss occasioned by such negligence.</p> <p>[Cited in The Montana, 17 Fed. 379.]</p> <p>3. The fire must be considered as an incident of the collision. If it were true, as claimed, that, but for the fire, the vessel would not have sunk, and could have been towed in, such a consideration would not have the effect to screen the carrier, whatever might have been its weight in a question between insurers and insured; moreover, it was not proved that these particular goods were burned, or sunk in the boat.</p> <p>4.There was no defence, under the act of March 3, 1851 [9 Stat. 635]. The vessel was liable, therefore, to all the libellants.</p> <p>[Cited in Re Norwich & N. Y. Transp. Co., Case No. 10,362.]</p> <p>[NOTE. For a history of the subsequent proceedings in this case, see Case No. 2,702, and note.]</p>

This case came up on exceptions to the report of a commissioner, to whom it was referred to ascertain the libellant’s damages. The action was by a shipper of cargo on board the steamer, which was sunk in a collision with a schooner, occasioned by negligence on the part of the steamer. [See Place v. The City of Norwich, Case No. 11,202; and, also, The City of Norwich, Id. 2,760, next preceding.)

[In admiralty. Libel by George Place and Charles Place against the steamboat City of Norwich to recover damages for loss of cargo by reason of a collision between the libelled vessel and the schooner General Van Vliet, April 18, 1866. The Norwich & New York Transportation Company, owner of the steamboat, filed an answer and petition to have the benefit of the act of 1851 for a limitation of its liability.

<p>In. admiralty.</p>

<p>Case Wo. 2,764.</p> <p>Collision — Moderate Speed.</p> <p>When a steamer was being navigated at the ■rate ot at least eight miles an hour, in a dense fog, and in the usual track of vessels approaching this harbor, from ports to the northward: tic Id, that she was not going, at a moderate speed, as required by section 4233, rule 21, Rev. St. U. S.</p> <p>[Cited in The Pennsylvania, 12 Fed. 917.]</p>

In admiralty. This action was brought [by Henry P. Simmons and others] to recover the sum of $7,200, being the alleged value of the schooner Percy Heilner, which vessel, while proceeding across the North river to Jersey City, was sunk by a collision with the steamer City of Paris, at the time proceeding down the river bound to sea.

This case came before the court upon a petition presented under the following circumstances: The libel was filed by Henry P. Simmons and other owners of the schooner Percy Heilner, to recover of the owners of the steamer City of Paris the damages arising out of a collision which occurred in the harbor of New York, on the 14th day of April, 1866, and averred that it was filed “in behalf of the libellants and all parties having a common right of action arising out of the…

[Appeal from the district court of the United States for the southern district of New .York.] In this case, there were appeals by both parties from a decree of the district court [case not reported], in a suit in rem, in admiralty, in a cause of collision, finding both vessels to have been in fault, and dividing the damages.

<p>Case No. 2,769.</p> <p>Coi.msion is North River—Tug and Tow— Lights.</p> <p>1. Where a tug coming up the North river with a barge in tow encountered below West Point a passenger steamer coming down, and a collision ensued between the steamboat and the barge; Held, that the failure of the tug to display the lights required by law as indicating that she had a tow was not a fault conducing to the collision, it appearing from the evidence that there was no darkness sufficient to prevent an approaching vessel from seeing the vessel in tow of the tug.</p> <p>2. Whether the display by a tug-boat of two lights, substantially vertical, hung abaft the pilot-house and not at the bow, is a compliance with rule 4 of the navigation rules (Rev. St. § 4233) quaere.</p> <p>3. The decision in the case of The Blanche Page [Case No. 1,522] questioned.</p>

<p>Case No. 2,770.</p> <p>■Collision at Sea — Steameii and Pilot Boat— Lights—Bchuen op Pkoof.</p> <p>1. A steamer, bound to the westward, discovered the flash lights of a pilot boat to the northward, about abeam. She replied to them, indicating that she wanted a pilot, and changed her course to N. W. by N. The pilot boat ■changed her course to the southward and westward to meet the steamer, showing her torches as she proceeded. The wind was fresh. When the vessels were four or five lengths apart, the courses of the vessels were crossing, and the starboard side of the steamer was the lee side. She showed a light on that side to guide the pilot to his place, and a pilot left the pilot boat in a yawl, having with him a light, to board the steamer. The steamer was kept in motion, and starboarded her helm, and, before the yawl boat reached her, she ran into the pilot boat and sank her. The pilot boat had no masthead light, but the light, which the pilot carried as he went into the yawl, was seen by those in charge of the steamer: Held, that the .steamer was in fault, in not stopping still before she reached the pilot boat, and also in star-hoarding her helm.</p> <p>[Cited in The Columbia, 27 Fed. 708; The La Champagne, 43 Fed. 447.]</p> <p>2. The burden was on the pilot boat'of proving that the absence of the masthead light, ■which she should have carried, did not contribute to the collision.</p> <p>3. As the exact position of the pilot boat •was known to those in charge of the steamer, and as the absence of the masthead light was not set up in the answer of the steamer as an .act of negligence, the absence of the masthead light did not contribute to the collision, and the steamer must be held solely liable.</p> <p>[NOTE. The Liverpool, New York & Philadelphia Steamship Company, claimant, appealed from the decree herein to the circuit court, where the decree was affirmed. See Case No. 2,771.]</p>

[In admiralty. Libel by Peter R. Baillie and others, owners of the pilot-boat John D. Jones, against the steamship City of Washington, to recover for the loss of the pilot-boat by collision. The district court decreed in favor of the libellants (Case No. 2,770), and the Liverpool, New York & Philadelphia Steamship Company, claimant of the steamship, appeals.]

<p>Case Wo. 2,772.</p> <p>Marshal’s Fees — Settlement op Claim.</p> <p>1. Under section 829 of the Revised Statutes, which provides, that, “when the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission,” the marshal is entitled to such commission, in a suit in rem, against a vessel, if process is issued, and a bond to the marshal is given under the act of March 3, 1847 (9 Stat. 1S1), (now section 941 of the Revised Statutes), although the service of the process is waived and the vessel is not actually seized under the process.</p> <p>[Cited in The Acadia, Case No. 23; The Clin-tonia. 11 Fed. 741; Smith v. The Morgan City, 39 Fed. 572.]</p> <p>2. Under said section 829, where the amount of a final decree is paid before execution, the debt or claim is “settled.”</p> <p>[Cited in Robinson v. Fifteen Thousand Five Hundred and Sixteen Bags of Sugar, 35 Fed. 603.]</p>

[In admiralty. Libel by Augustus B. Perry and others, owners of the senooner Magellan, against the ship Civilta and the steam-tug Restless, to recover damages for the sinking of the schooner by collision.]

<p>Case Wo. 2,776.</p> <p>Removal—Ox Motion to Remand—Suit at Law-—What Is It?</p> <p>1. The definition of a suit of a civil nature under the removal act [March 3, 1815; 18 Stat. 470].</p> <p>[Cited in Fidelity Trust Co. v. Gill Car Co., 25 Fed. 745.]</p> <p>[2. A proceeding under the Ohio statute to compel an assignee for the benefit of creditors to allow a claim is a suit at law within the removal act.]</p>

On motion to discharge property attached. The plaintiff, a citizen of New York, brought an action in the circuit court of the United States for the district of Kansas, against the defendant, a citizen of that state.

<p>Case No. 2,781.</p> <p>Bankruptcy — Confirmation of Assignee — Disqualification.</p> <p>1. In passing upon the confirmation of an as-signee who has been chosen by the creditors, the court must be guided by a sound judicial discretion, and ought to reject one whom there is probable cause to believe disqualified by character or otherwise from performing the duties of the place with fairness.</p> <p>[Cited in Re Wetmore, Case No. 17,466.]</p> <p>2. A person who resides out of the district, or who has a direct interest adverse to that of the creditors generally, or who is the attorney of such a person or of the bankrupt, is disqualified.</p> <p>3. But a general creditor, or the attorney of one, or a person who has been an attorney of the bankrupt in matters not connected with the bankruptcy, is not necessarily ineligible. Mere bias or prejudice arising from information concerning the conduct and dealings of the bankrupt will not usually disqualify.</p>

The register certified that Guy F. Hinch-man., executor of the estate of James Abbott, tendered as proof of debt against said bankrupt’s estate his deposition, setting forth that at and before the filing of the petition for the adjudication of said [John] Clancy as a bankrupt, he, said Clancy, was indebted to said Hinchman, as such executor, in the sum of two thousand six hundred and twenty dollars, for rent of land leased by Hinchman to Clancy by a lease in writing, a copy…

The petitioner asked to have the assets marshalled by the trustee appointed, and acting instead of an assignee, under section 43 of the bankrupt act [14 Stat. 53S]. The parties agreed to the facts, which were substantially these: Samuel G. Clap and Edmund TV. Clap were partners for many years under the firm of Clap & Brother, and during that time the petitioner lent them $10,000, for which he held their firm notes.

In bankruptcy. The facts concerning the partnership of E. W. & S. G. Clap, and its dissolution by the death of the latter, the provisions of his will, and the state of the accounts and assets, were shown, in the case of George G. Tarbell [Case No. 2,7S3], petitioner.

<p>Case No. 2,785.</p> <p>Bankruptcy—Attachment—Dissolution.</p> <p>1. Attachments are not dissolved by the acceptance and recording of a resolution of composition.</p> <p>LC.ted in Re O’Neil, Case No. 10,528; Re iiazens, Id. -6,285.]</p> <p>2. All liens are preserved which are not expressly disposed of by the bankrupt act of 1867 [14 Stat. 517].</p> <p>S. An attachment can be dissolved only by an ■assignment.</p>

<p>Case No. 2,786.</p> <p>Fraudulent Sale — Who mat Complain—Collision—Vessel at Anchor—Burden of Proof.</p> <p>1. The question whether the sale of a vessel was fraudulent as against creditors, cannot be raised by third persons, who have no interest in the question.</p> <p>2. In cases of collision, where it appeared that one of the vessels had neglected an ordinary and proper measure of precaution, the burden was on her to show that the collision was not owing to her neglect.</p> <p>[Oited in Bulloch v. The Lamar, Case No. 2,-32b: Martinez v. The Anglo Norman. Id. 9,174.]</p> <p>3. The schooner Eddington went into Prov-incetown harbor in a gale of wind. After coming to anchor, she was driven from her moorings toward the fiats, where she was brought up by her small anchor, and lay head to the wind. In this position, she was run foul of in the night tune by another vessel, the Lion, having no person on board. Held, that the owners of the Lion had omitted a reasonable and ordinary measure of security, and that the collision was to be attributed to their neglect, notwithstanding a usage at Provincetown to leave vessels, owned in that place and manned by persons residing there, at anchor in the harbor, without any person on board.</p>

[Appeal from the district court of the United States for the eastern district of New York. [In admiralty. Libel by Jotham Shepherd and others, owners of the schooner Jul.a New-ell, against the schooner Clara, for a loss sustained by collision. There was a decree for libellants in the district court (case unreported), and Lemuel H. H p'.n; and ethers, claimants of the Clara, appeal.]

[In admiralty. Libels by the New York Harbor Protection Company, owner of the steamtug Clara Clarita, against the schooner Clara to recover for services rendered in extinguishing a fire, and by Augustus M. Cox .and others, owners of the schooner, against the tug to recover the damages caused by the fire.]

<p>Case No. 2,789.</p> <p>[For a statement of the facts of this case, see Case No. 2,78S, next preceding.]</p> <p>[NOTE. This decision was affirmed by the supreme court in The Clarita and The Clara, 23 Wall. (90 U. S.) 1. See Case No. 2,788, note.]</p>

<p>Case No. 2,792.</p> <p>Collision — Sail and Sail — Wind Free and Close-Hauled.</p> <p>1. When a vessel comes down with the wind free in an open sea, to speak another vessel which is close hauled on the starboard tack, the former has the entire duty of so manoeu-vring as to avoid a collision, and it is the duty as well as the right of the latter, in case a collision is apprehended, to keep her course.</p> <p>2. If a vessel with the wind free attempts,, without necessity, to cross the bows of a vessel close-hauled, and a collision takes place, the-former vessel will be held prima facie to be in fault</p>

<p>[At law. Action by William K. Clare against the National City Bank.]</p>

This was a petition filed under the United States bankrupt law, by W. P. Clark, master of the brig Maria Theresa, to be allowed 8S3 out of the estate of Mark Healey, a bankrupt and sole owner of the Maria Theresa, for which sum Clark claimed a lien on the vessel.

• In admiralty. Exceptions to libel for services rendered by libellants’ tug John Owen to the brig Clarion, aground upon St. Clair flats, in towing her off the flats and into Detroit river, in October, 1857.

<p>Case No. 2,797.</p> <p>Habeas Corpus —Examination before Commissioner— Evidence — Indictment in Another District.</p> <p>1. Where, on writs of habeas corpus and cer-tiorari to a United Stales commissioner, it appeared that the commissioner had issued a warrant to arrest the petitioner, on a charge of conspiring to defraud the United States, in the eastern district of Michigan, who had been arrested and brought before him, aud demanded an examination, and on the examination the evidence consisted of an indictment found against him in the eastern district of Michigan, and proof that on that indictment the district court of that district had issued a warrant for his arrest, the indictment averring that the prisoner, with certain others named, did, at the city of Washington, conspire, combine, confederate, and agree together to defraud the United States, in a manner particularly set forth, and that one of the parties to said conspiracy, named Lee, at Detroit, in the eastern district of Michigan, in pursuance of said conspiracy, did do an act to effect the object of said conspiracy, said act being particularly set forth, and on such proof the commissioner committed the prisoner for trial in the eastern district of Michigan, and thereupon this habeas corpus was issued, and the discharge of the prisoner claimed, on the sole ground that the indictment produced did not aver that an offence against the United States had been committed in the eastern district of Michigan: Held, that the question whether the indictment sufficiently averred an offence committed in the eastern district of Michigan should not be prejudged on a proceeding like this.</p> <p>[Cited in Re Buell. Case No. 2,102; U. S. v. Haskins, Id. 15,322.]</p> <p>2. That on such a proceeding the indictment must be considered sufficient, unless it be so «defective in its material averments that it would be the manifest duty of a court before which it was presented by a grand jury to decline to take action upon it.</p> <p>[Cited in Ee Doig, 4 Fed. 195.]</p> <p>S. That this indictment was not of that character.</p> <p>4. Whether, in such a proceeding before a commissioner, such an indictment can be examined, and its sufficiency passed upon — quere.</p> <p>[Cited in Ke Alexander, Case No. 162.]</p>

On the 19th of November, 1869, an action was commenced in the superior court of the •city of New York, by the bankrupt [Abraham B.] Clark against the bankrupt [Abraham] Bininger.

In bankruptcy. [On certificate of I. T. Williams, Register:] 2 [I, the undersigned register in charge of this case, do hereby certify that I was, on the thirty-first day of October last, served with a paper requesting me, among other things, to audit and pass certain accounts filed with me at an adjourned second meeting of creditors of said separate estate, held on the ninth day of October, eighteen hundred and seventy-one, and direct the payment of such of the outstanding…

<p>Case No. 2,800.</p> <p>Discharge of Involuntary Bankrupt.</p> <p>1. An involuntary bankrupt may be discharged unless some act specified in the 29th section [of the act of 1867 (14 Stat. 631)] is proved against him.</p> <p>[Cited in Be Bunster, Case No. 2,136.]</p> <p>2. His estate having been administered upon, and the object of the law having been fulfilled, if he has acted in good faith there is no reason why he should be compelled to go through the vain ceremony of filing a voluntary petition.</p>

[Appeal from the district court of the United States for the district of Vermont.] In bankruptcy. One Burton, many months before proceedings were commenced in bankruptcy against [Alanson M.] Clark, had commenced an action in the state court, against the latter, on book account, for $150,000, and therein had attached property of Clark, to be held to satisfy any judgment he might recover in that action.

<p>[Petition of review.]</p>

<p>Case No. 2,808.</p> <p>Bankruptcy — Objections to Proof of Debt— Certification.</p> <p>When written objections to a proof of debt are filed with the register and testimony is taken thereon, it is his duty, if requested by either party, to certify the same to the district judge for decision, even though no proof whatever be offered tending to invalidate the debt so proved.</p>

I, the undersigned register in charge of this matter, do hereby certify and report, that a petition was filed with me on the twentieth day of November inst., by the as-signee in these proceedings, John S. Beecher.

<p>[On certificate of I. T. Williams, Register in Bankruptcy:]</p>

<p>[In the matter of James S. and John N. Clark, bankrupts.]</p>

[At law. Separate actions by Luther C. Clark and others, comprising the firm of Clark, Dodge & Co., and by Frank Work and others, against Joshua F. Bailey, collector of internal revenue, to recover back taxes imposed and collected.]

<p>Case No. 2,816.</p> <p>Statute or Frauds — Memorandum — Substitution or Parol Agreement — Resulting Trust.</p> <p>1. Where an agreement was made for the purchase of lands, and the following paper was given. — “Ellsworth, Dee. 15, 1S34. Received of Daniel Burnham and Cyrus S. Clark, one thousand dollars, to be accounted for if they shall furnish me satisfactory security for certain lands on the Naraguagus river, say one hundred and nineteen thousand acres, for one hundred and thirteen thousand dollars, on or before Friday morning next; otherwise to be forfeited. John Black,” — it was held to be a sufficient memorandum of the terms of sale, under the statute of frauds.</p> <p>[Cited in Williams v. Morris, 95 U. S. 456.]</p> <p>2. By a parol agreement having been subsequently substituted therefor, by which the said land was transferred, by deed, to other persons than those therein mentioned, and a bill being brought by Clark to recover a certain part from the grantees, as a resulting trust to him, it was held, that the written memorandum only created a presumption of a resulting trust, which could be rebutted by proof; and proof being given, that Clark did not advance any portion of the purchase money, as stated in the memorandum. it was held, that he was not entitled to a resulting trust, and that the contract was within the statute of frauds.</p> <p>[Cited in Smith v. Burnham, Case No. 13,019.]</p>

<p>Case No. 2,817.</p> <p>Municipal Corporation — Negligence—Steps in Sidewalks — Duty or City — Ice upon the Sidewalks.</p> <p>1. The mere existence of a descent or step in the sidewalks of a city is not such a defect as to render the city liable for accidents to passengers in stepping from one elevation to another; tile question is, whether the sidewalk or descent was properly constructed, in reference to the character of the city and condition of -the streets.</p> <p>2. The city is not bound, under all circumstances, to keep the sidewalks free from ice; it is only required to exercise reasonable diligence under the circumstances of the case.</p>

[At law. Action by Levi Cropper against John Clark and Allen M. Oakley on a promissory note. There was a judgment for plaintiff, and defendants bring error.]

At law. This was an action of trespass-originally commenced in one of the state courts of Missouri, and afterwards removed, under the act of congress of 1803 (12 Stat. 757), to the circuit court of the United States,, for the district of Missouri. The right of removal was not contested or denied. The trespasses were alleged to have been committed in the city of St. Louis, in January, 1SC2.

<p>Case No. 2,819.</p> <p>Collision between Steam Vessels — Crossing Coukse — Erroneous Maneuver.</p> <p>[A towboat left a landing just above a ferry slip in ihe Easr river, started down, and across tbe course of an incoming ferry boat. On discovering tbe latter, she stopped and backed, when, had she kept on, tbe collision complained of would not have ensued. Eeld, that the towboat was in fault in not making at once for the center of the stream as required by local laws, and in starting ahead at such time, and that the ferry boat had a right to presume that the towboat would not be suddenly put in motion or as suddenly stopped, and was, therefore, not in fault.]</p>

At law. Trespass on the case for libel. The declaration claims damages for injury received by the plaintiff. The defendant [Thomas FordJ pleaded not guilty and justification.

In equity. The general facts of this case are the same as those in the preceding case of Dorr v. Gibboney’s Ex’x [Case No. 4,006], except that there was no attachment suit in this case. Besides this, Clark, Dodge & Co. had brought suit on the note, but had never prosecuted it to final judgment, and it had been dismissed at the beginning of the war. The defendants claimed that this was a waiver of the benefit of the assignment.

2 [This suit was brought by the plaintiffs [Luther C. Clark and others, comprising the firm of Clark, Dodge & Co.], who were regularly licensed bankers, to enjoin [Sylvester S. Gilbert and Sheridan Shook] officers of the revenue, from assessing and collecting from them the broker’s tax on sales imposed by section 99 of the excise act of June 30, 1804.

This was a bill in equity, wherein the complainant sought to set aside and annul a. certain decree of the supreme court of the United States of America, affirming on appeal a decree of the circuit court of the United States for the District of Columbia, and also to set aside the decree of the circuit court so appealed from and affirmed.

[In equity. Bill by James R. Clark, Jr., assignee in bankruptcy of Henry E. Dibblee, D. P. Bingley, and J. J. Knauss, against Adrian Iselin and Isaac Iselin to set aside certain transfers and securities, as in fraud of the bankrupt law. Complainants move to dismiss an appeal from an interlocutory decree of the district court.]

In equity. This was a bill in equity filed, in the district court, by the plaintiff [James R. Clark, Jr.], as assignee in bankruptcy of [Henry E. Dibblee, D. P. Bingley, and J. J. Krauss, comprising] the firm of H. E. Dibb-lee & Co. against [Adrian Iselin and Isaac Iselin] the members of the firm of A. Iselin & Co. The bankrupts were adjudged such, in involuntary proceedings, on the 2d of June, 1SG9, the petition having been filed May 8d, 1SG9. [See Case No. 3.8S4.) The bill…

[In equity. Bill by William J. Clark against, the Kennedy Manufacturing Company and Edwin Hills to restrain infringement of the second reissue of patent No. 43,669, the first reissue of which was numbered 1,916.]

<p>Case No. 2,827.</p> <p>Officers of Corporations—Liability to Creditors for Negligence.</p> <p>An action on the case cannot be maintained by a creditor of a corporation against the directors thereof for gross negligence in the management of its affairs, whereby its property has been wasted and its means of paying the plaintiff destroyed.</p> <p>[Cited in Cleveland v. La Crosse & M. R. Co., Case No. 2,8S7.]</p>

This was a libel filed for the recovery of several sums of money, alleged to have been advanced at different times by the libel-lant in the years 1S34 and 1S35, and claimed to be secured by different instruments, designated as bottomry bonds.

At law. This was an action on a policy by the defendants in favor of the plaintiffs [Eli Clark, William Green, and Hugh McGill], made August 13th, 1S45. It was on a cotton factory and machinery, situated in Malone, in the state of New York, for $14,000, and was to run one year from the date.

<p>[Action by Lester M. Clark, assignee in bankruptcy of Rosenthal and others, against Marcus Marx].</p>

<p>Case No. 2,831.</p> <p>Customs Duties — Storage of Importations in Private Store — Half-Storage—Construction of Statutes — Effect of Repeal.</p> <p>1. Where importations were deposited by the importer in his own store, under the act of March 28, 1854 [10 Stat. 2T1], held, that the collector correctly required the importer to pay half-storage, under the treasury regulations, February 17, 1S49.</p> <p>2. The regulations of July 2, 1855, did not have the effect to repeal those of February 17, 1849.</p> <p>3. Where there is no repealing clause, subsequent regulations only have the effect to repeal those previously existing, to the extent that the last issued are clearly repugnant to the former.</p> <p>4. Under the regulations of February 17, 1849, the importer, before he can use his own store for the deposit of importations, must indorse on the entry an agreement to pay the collector an amount equal to the salary of an in-spocior, or one half storage, and the importer must make his election in advance.</p> <p>5. In the treasury regulations of July 2, 1855, the alternative provision for the payment of half-storage is dropped.</p> <p>6. The regulations of 1857 provide that the importer shall pay monthly to the collector such sum as the collector deems proper for the service, not less, however, than the pay of the officer in attendance.</p> <p>7. Where an importer, under the act of March, 1854. elected to deposit the goods in his own store, held, that he was not deprived of that right by being required to pay half-storage, and that such requirement by the collector was properly made, as the store was “a private bonded warehouse,” and the owner as importer was bound to pay “appropriate expenses.”</p> <p>[Cited in U. S. v. Macdonald, Case No. 15,-608, 5 Wall. (72 U. S.) 658.]</p> <p>8. When the interpretation of the revenue laws and regulations is invoked, considerable weight should be given to the practice of the government as a contemporaneous construction of the provisions under consideration.</p> <p>9. Goods deposited in private stores by the importer are to be taken possession of by the collector, at the charge and risk of the owners; consequently the goods are in the custody of the United States, and in charge of an inspector.</p>

[At law. Action by Thomas Phillips against Josiah Clark tipon a bond assigned to plaintiff. There was a judgment for plaintiff, and defendant brought error.]

<p>Case No. 2,832.</p> <p>Insurance on Smuggled Phopektt— Divisibility of Policy — Fohfeituke—Penalty.</p> <p>1. A policy of insurance is not divisible, so as to be good in part and bad in part. If, at its inception, it is founded in any illegality, in which one only of the owners participated, it is utterly void as to all.</p> <p>[Cited in Blandy v. Griffith, Case No. 1,530.]</p> <p>2. Where a ship was insured on a voyage to Liverpool, and took on board in the port of New Orleans a chain cable, smuggled by another vessel, and was lost upon the voyage to Liverpool, by the perils of the seas, it was held, that she was not subjected to a forfeiture in rem, but that the master was personally liable to the pecuniary penalties prescribed by law therefor, and that the underwriters were liable for a total loss on the policy. Held, also, that the insurance on the chain cable was good; the title being in the owner of the vessel, and the illegality not attaching to the voyage, on which it was used.</p> <p>3. When property is forfeited, it does not vest in the government until after á seizure, which then relates back to the time of the forfeiture.</p> <p>4. The 27th and 28th sections of the duty collection act of 1799. c. 128 [1 Story’s .Laws, 597; 1 Stat. 64S, c. 22], are not applicable to such a case as this; but it is covered by the 50th and 59th sections of the act, which provide a penalty for unlading goods without .a special permit or license from the collector, or for knowingly receiving or concealing goods, liable to seizure. But the vessel receiving smuggled goods is not liable to forfeiture.</p> <p>[Cited in U. S. v. Distilled Spirits, 14 Wall. (81 U. S.) Cl.]</p> <p>5. Every statute, imposing a penalty, imports a prohibition, and makes the prohibited act illegal.</p> <p>[Cited in Hatch v. Burroughs, Case No. 6,-203.]</p> <p>6. A- mere intention to do any act, which would avoid a policy, if done, but which has never been consummated, does not vitiate the policy. The voyage, to avoid the policy, should be originally either wholly or in part illegal as to trade and objects.</p> <p>7. If a voyage as originally insured be valid, any subsequent illegality in the course of the voyage will not affect the policy, so far as concerns losses on property not tainted with such illegality, though connected with the res gestae.</p> <p>8. If the illegal act is followed by a forfeiture and seizure of the thing insured, the underwriters are not liable for the loss. But the mere liability to forfeiture, does not avoid the insurance, or prevent a recovery for a loss by any independent peril.</p>

[In equity. Bill by Thomas Clark, Jr., trustee of W. TJ. Dudley, and Lawrence W. Clark, and the said W. U. Dudley and the said Lawrence W. Clark, against George A. Scott, agent of the Florence Manufacturing Company, to enjoin infringement of letters patent No. 92,942, granted to said Dudley and L. W. Clark, and for an accounting.]

<p>[In equity. Bill by Benjamin Clark against Jesse Shelton. Motion by defendant to dismiss the suit for want of jurisdiction.]</p>

<p>Appeal from Hempstead circuit court.</p> <p>[Benjamin Clark .against Jesse Shelton.]</p>

<p>This was a petition for a new trial. The •original action was a proceeding to recover a balance alleged to be due Tuckerman, a citizen of Massachusetts, from [Jonathan ■Clark] the executor of D. Clark, who had been a citizen of Maine. There had been a mortgage given originally to Tuckerman to .secure the debt, which had been foreclosed by Tuckerman, and who averred that the premises in the mortgage so foreclosed were not worth the whole debt, and therefore presented a claim to the commissioners on Clark’s estate, for about $2000 more. The •commissioners decided against Tuckerman. The estate of Clark was supposed not to be in fact insolvent, and an action at law was then instituted for Tuckerman’s demands, in this court, under a statute of the state of Maine allowing an action in such ■case, and after an appearance and one continuance, a judgment was rendered on default for Tuckerman against Clark’s executor, for $2092 debt, and $34.71 costs, at the October term, 1S42. Tuckerman has since died [and William D. Sohier qualified as his executor]. The petitioner avers that said action was defaulted by mistake; that there was a good defence to the same, and therefore prays that this court will grant a new trial therein.</p> <p>The petition was filed September 30th, 1844. and was argued on the evidence adduced, October term, 1845.</p>

<p>Case No. 2,834.</p> <p>Bankruptcy—Dealings with Insolvent — Pref-EKENCE.</p> <p>[Creditors receiving from an insolvent a larger per cent, of their debts than the apparent assets would give to all are bound to be very careful that they do not obtain preference.]</p> <p>[Cited in Re Hamilton, 1 Fed. 807.]</p> <p>[NOTE. The preference was thereafter paid to the assignees on execution, and subsequently the defendints were allowed to prove their debt against the bankrupt estate. See In re Black, Case No. 1,459.]</p>

243.) The ground of forfeiture is, that the goods in question were imported in this vessel into the port of Philadelphia, from Port-au-Prince, a possession of France, contrary to law. The Sea Nymph and part of her cargo were seized at the port of Philadelphia, on the river Delaware, and part on land; and the question made in the district court, and insisted upon in this, is, whether the' trial of the vessel and cargo, wherever seized, ought to have been by jury.

<p>Appeal [from the district court of the United States for the district of Pennsylvania],</p>

At law'. Assumpsit [by Chastein Clark against the mayor, aldermen, and common council of the city of Washington] for $100,-000, the amount of a prize drawn against the ticket No. 2,929 in class No. 5 of the National Lottery. The case was elaborately argued on the 7th, 8th, 9th, and 10th of December, 1S24, by Mr. Swann and Mr. Wirt, for plaintiff, and Mr. Jones, for defendants.

This was a rule upon the plaintiff [Clark’s executor] to show his cause of action, and why the foreign attachment, which had been issued, should not be dissolved.

<p>Case No. 2,842.</p> <p>Bankruptcy — Register's Fees — Adjourned Meetings.</p>

In bankruptcy. This was a case of involuntary bankruptcy. The adjudication was on the 9th day of January, 1874. A deed had been given by the firm of Clarke & Daugh-trey, on the 19th of September, to A. C. Withers, trustee, to secure certain debts to T. W. Smith, a merchant of Suffolk, to the amount of $1,500.

<p>Case No. 2,844.</p> <p>Bankruptcy — Fraud in Contracting Debt— -. Discharge.</p> <p>1. An objection to the discharge of bankrupt, grounded upon the fact that the debt was created by fraud, is not a valid one.</p> <p>2. Debts created by fraud are excepted from the operation of the discharge.</p> <p>[Cited in Re Wright, Case No. 18,065.]</p>

<p>This was a question whether the Manufacturers’ Insurance Company were chargeable as the trustee of Franklin Chase. The plaintiffs [J. W. Clarke and others], being citizens of Massachusetts, brought an action against Chase, a citizen of the state of Rhode Island, in the supreme judicial court of the commonwealth of Massachusetts, and summoned the Manufacturers’ Insurance Company as his trustee, under the trustee process provided by the law of that state. The defendant removed the suit to this court pursuant to the twelfth section of the judiciary act of 17S9 (1 Stat. 79). It appeared from the disclosures of the trustee that on the 3d day of January, 1854, one Henry Parks procured a policy of insurance, to be underwritten by the Manufacturers’ Insurance Company, on machinery and stock in a cotton mill; and in case of loss $2,500 of the amount insured was, by the policy, made payable to the defendant Chase. That before the service of the trustee process, a loss had occurred which made the sum of $2,500 due and payable, and that the trustee was ready to pay it to its rightful owner; but that the trustee was informed that one George W. Butts claims to be the owner of the said sum of money by assignment from the defendant Chase. Under provisions of the law of Massachusetts, Butts intervened, and made allegations, from which, being admitted to be true, it appeared that on the 6th day of January, 1854, before the service of the trustee process, Chase, being insolvent, conveyed to Butts, a citizen of the state of Rhode Island, by a voluntary assignment, all his property, including his rights under the policy of insurance above mentioned, in trust, to pay, first, certain preferred creditors, and secondly, to pay, pro rata, all such of his creditors as should release the assignor from their claims. That Chase was the creditor of Parks, who procured the policy, in the sum of $5,699.65, and the sum of $2,500 was made payable to Chase as security therefor. That after the assignment was made to Butts, this indebtedness of Parks was consolidated and liquidated, and Parks gave his promissory note for the amount, payable to Butts as assignee, and as security therefor executed a mortgage on real property. That Butts, after the service of the trustee process, assigned this note and mortgage, and the as-signee afterwards acknowledged payment thereof on record; and afterwards Parks assigned to Butts all his right and interest in the said sum of $2,500; and that all these transactions took place within and between citizens of the state of Rhode Island.</p>

Heard on demurrer to the declaration. The declaration averred in substance: That the plaintiffs [James E. Clarke & Co.] were aliens and subjects of Great Britain and partners in business; that on the first day of April, 1875, at the city of Darien in the state of Georgia, the plaintiffs, as such partners, were merchants engaged exclusively in exporting timber from the port of Darien to Great Britain and to other foreign countries, and had in their possession in said city a…

<p>[Appeal from the district court of the United States for the district of Massachusetts.</p> <p>[In admiralty. Libel by Enoch Crabtree against Albert P. Clarke and others. There was a decree for libelant in the district court, and the respondents appealed.]</p>

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

The steamer Fashion had run very negligently into a small river sloop, the Syrian, of 43 tons, owned by Clarke, and had injured her hull and stranded her in the mud near one of the Philadelphia docks. Held: that the owner of the sunken vessel was not bound to take her, and might proceed and recover as for a total loss.” The Columbus [supra] is really an authority in our favour, though cited with some apparent show against us.

Motion to rule the defendant [James Druet] to special bail, on the affidavit of Briscoe, one of the firm of Clarke & Briscoe, at the bottom of an account, “that the above account is just and true as stated, and that no part thereof has been paid, except what is credited.” ,

[In bankruptcy. Bill by Charles Edward. Clarke, assignee, etc., against Sylvester D. Foss and others.] cited the following authorities: In this case the lex loci contractus determines the rights of the respective parties. These contracts were made and to be performed in Chicago, and are therefore to be governed by the laws of the state of Illinois. Edw. Bills & N. §§ 177, 185; Stacy v. Baker, 1 Scam. 417. These contracts were valid under the decisions of Illinois.

Declaration in assumpsit upon the common counts; to which the general issue was pleaded. In support of the issue on the part of the plaintiff were offered in evidence several bonds of the city of Janesville to the Rock River Valley Union Railroad Company, with coupons or interest warrants annexed.

<p>[In equity. This bill was filed by Thomas IV. Clarke, trustee, etc., against John Johnson.]</p>

[In equity. Bill by George Augustus Clarke and Jeanet Virginia Clarke, infants under the age of twenty-one years, by Reuben Middleton, their guardian and next friend, against James B. Johnston and Adam Norrie, as executors of the last will and testament of James Boorman.]

This was the case of a bill of revivor, brought by Clarke as administrator of Willard W. Wetmore, deceased, to revive a suit in equity, brought by Wetmore in his lifetime, against the defendant Henry Mathewson.

This was a suit in admiralty, brought by an appeal from a pro forma decree of the district court [for the district of Rhode Island], dismissing the libel. The original libel was brought in February, 1841, and prayed only for personal process against the corporation, and that Moses B. Ives, one of the directors of the company, might be summoned to appear and answer the libel.

<p>Case No. 2,861.</p> <p>Ba.nkucptct — Act or 1841— Lien — Enjoining Phocbedings is State Court.</p> <p>1. Where a judgment is fairly obtained against a defendant who has only equitable rights, and a creditor’s bill is filed to subject those rights to the payment of the judgment, if the process issued on filing the bill be served before the defendant’s petition is filed under the bankrupt law, the proceeding constitutes a lien under the bankrupt law.</p> <p>[Cited in .Tohnson v. Rogers, Case No. 7,408; Kimberling v. Hartly, 1 Fed. 574; Platt v. Mead, 9 Fed. 90.]</p> <p>2. In such a case, the court will not issue an injunction to restrain the parties from proceeding on the creditor’s bill in the state court.</p> <p>ICited in Clark v. Binninger. 38 How. Pr. 341; Myer v. Crystal Lake Pickling & Preserving Works, 14 N. B. R. 10; Kimber-ling v. Hartly, 1 Fed. 575.]</p> <p>"3. If fraud were alleged against the lien set up in the state court, that would be a ground on which the circuit court might take jurisdiction.</p>

<p>[At law. Actions by Clarence H. Clark against Horatio G. Sickel, Mary E. Farnum against the same, William Sellers against the same, and by Henry C. Lea against William It. Leeds.]</p>

<p>Case No. 2,863.</p> <p>Equitable Liens — Enforcement—Piuvibs—Lim-itation.</p> <p>1. Certain mill-owners having, by articles of agreement, associated themselves for the purpose of constructing reservoirs, &c., to improve the flow of the stream, and agreed that there should be a lien on their respective estates for the share of the expenses which each was to pay: Held, that this agreement was an equitable lien, which each member who had paid more than his proportion might enforce, without joining the others; and that the defendant, having purchased certain of the mills, with notice of the lieu, after the debts were incurred by the association, took the estates cum onere.</p> <p>[Cited in The Young Mechanic, Case No. 1S,-180; Lawrence v. Dana, Id. 8,136.]</p> <p>2. Such a lien is not barred by lapse of less time than is sufficient, by the local law, to bar a suit for the foreclosure of a legal mortgage.</p>

<p>At law. This was a suit [by Joseph W. Clarke against Hastings Strickland, and others] to recover a certain tract of land, part of number 2. range 12 west from tho east lino of the state, in tho county of Piscata-quis, particularly described by metes and bounds in the writ. It was admitted for the purpose of this hearing that the demandant's title was good, unless it had boon divested by a forfeiture to the state, and by a legal sale for non-payment of taxes. The forfeiture claimed was for the non-payment of the tax to the state and county, for the years 1842, 1843, and 1S44. By the Revised Statutes [Me. 1840-41. p. 87] c. 14, § 9, if any taxes imposed by the legislature on any township, or tract of land not taxable by the assessors of any town or organized plantation are not paid within four years from the passing of the act making the assessment, the land shall become forfeited to the state.</p>

This was an action on the case [against Charles W. Copeland] tried by Judge SHIP-MAN and a jury, to recover damages for the alleged infringement of letters patent [No. 5,254] granted to Timothy Clark August 21, 1847, and extended for seven years from August 21, 1861, for an “improved safety apparatus for steam boilers.” The improvement consisted in the employment of a flexible vessel, which is expanded bythe pressureof the steam; the outsideof the said vessel being connected…

Action [by Clason & Dunham] on two policies of insurance; one on the ship Horatio, and the other on the cargo, at and from New-York to Tonningen, at a premium of 20 per cent. She sailed with her cargo on the voyage insured, in February, 1810, and has never been since heard of. There were two questions made in the cause — 1. As to the seaworthiness of the vessel. 2. A material' misrepresentation.

In equity. Heard for final decree on the pleadings and evidence.

In admiralty. This was a libel filed by the mates and crew of the bark Clayton against the freight and cargo of said vessel, on a voyage from Chicago to Collingwood and return, for their wages as seamen in the management of the bark.

<p>Case No. 2,871.</p> <p>Salvage — Rescue of Phize — Compensation—Seamen — Suspension of Wages hv Capture.</p> <p>1. The Harmony, bound to Philadelphia from Great Britain, was captured by a French vessel of war, part of her crew, &c., taken out. and ordered to Rochelle. The libellants and others, seven in number, including two female passengers, rose on the French prize-master and his crew, ten in number, rescued the Harmony, and brought her into Philadelphia. One fourth of the whole value of ship and cargo allowed as salvage.</p> <p>[Cited in Hart v. The Littlejohn. Case No. 0,-153.]</p> <p>2. The contract between owners and mariners suspended by capture, as to all claims for wages.</p> <p>[Cited in Strout v. The Cuba, Case No. 33,-549.]</p> <p>3. No difference, in justice, whether rescue by ship’s crew, or those of another vessel.</p> <p>4. Captors enemies on the sea.</p> <p>5. Legal obligations on mariners continue in •cases of wreck, but not to rescue captured property.</p> <p>6. Rewards beyond wages given to mariners, ■saving from wreck. Not fixed, but vary according to circumstances.</p> <p>[Cited in The Massasoit, Case No. 9,260.]</p> <p>7. No salvage allowed to fraudulent claimants.</p> <p>8. Policy and justice of liberal salvage.</p> <p>9. Quantum of salvage, on what principles adjusted.</p> <p>10. Salvage on recaptures, by act of congress.</p> <p>11. Wages from last port of delivery in part of shares of salvage.</p>

This was an action qui tarn for an alleged infringement of copyright by the defendants [William L. Stone and Francis Hall], who were editors and proprietors of the “New York Commercial Advertiser,” in copying into their paper the daily price-current or review of the market, compiled by plaintiffs [Edwin B. Clayton and others]. Defendants pursued a regular system of appropriating the substance of the price-current, a few hours after its appearance in each issue of their paper.

<p>This was a writ of entry, brought to recover a tract of land described in the de-mandant’s writ, in which he declared on his own seisin, and- a disseisin by the defendant [Francis O. J. Smith], within twenty years. The defendant pleaded nul disseisin, and on this plea issue was joined. The cause was tried before the district judge (Judge Ware). At the trial, the plaintiff [Stephen H. Cleave-land], to prove his title to the land in dispute, offered his deed from the agent of the commonwealth of Massachusetts, and state of Maine, of the land described in his writ, executed and bearing date Sept 25th, 1834. The agency was admitted, and he contended, that the said tract passed to him by the said deed. The defendant, to prove his title to the said tract of land, introduced a deed from the commonwealth of Massachusetts to the towns of Taunton and Raynham, dated on the 31st day of January, 1820, of the following described tract of land, namely, “One half of a township of land, of the contents of six miles square, lying in the county of Somerset, as the same was surveyed by Thomas McKecknie, the 30th Nov., ISIS, bounded as follows, viz., beginning on the north line of the million acres, at a yellow birch tree, six miles east from the southern corner of the township number three, in the first range of townships, north of William Bingham’s Kennebec purchase, thence running east six miles on said million of acres north line to a yellow birch tree, within about half a mile of Moosehead lake, thence north three miles, thence west six miles, thence south to the yellow birch tree begun at, containing eleven thousand five hundred and twenty acres.” And this deed, he contended, on its southern boundary, covered all the lands to the north line of the million acres, (commonly called the Bing-ham purchase), and extending on that line the full length of six miles; and that the said deed towns of Taunton and Raynham being prior in date to the grant of Massachusetts and Maine, dated on said 25th September, 1831, Maine and Massachusetts had no lands, which could, on that day, be conveyed; but that the whole passed by the grant of Massachusetts to Taunton and Raynham on January 1st, 1820. The million acre tract (the Bingham purchase) was located and surveyed in 1792, and the north line thereof was marked and distinguishable. The plaintiff contended, that the tract in dispute was not conveyed by the grant of the commonwealth of Massachusetts to Taunton and Raynham, but remained in Massachusetts and Maine, on the 25th of Sept. 1834, when these two states conveyed the same to the plaintiff; and he introduced testimony, tending to prove that the two yellow birch trees on the said grant of the 1st of January, 1820, were not, as originally fixed and marked on the face of the earth in the original survey in said million acre north line; but were at a distance and to the north of the said line, and were in the line originally marked and surveyed as the south boundary of the Taunton and Raynham grant, and left, between the marked birch tree and the said million acre line, a strip or gore of land, which the said commonwealth and state conveyed to the plaintiff by their grant aforesaid, dated the 25th day of September, A. D. 1834. And he contended, that, inasmuch as the said two birch trees, marked as monuments in the original survey, did not coincide with the million acre north line, mentioned as part of the description in the said grant, the two birch trees established ■on the face of the earth, as monuments, must govern in fixing the boundaries of the said grant on the south line of the same; and that the strip or gore aforesaid passed to him by the said grant of September 25th, 1834; and to this effect the judge instructed the jury.</p> <p>The judge was requested, by the counsel for the tenant, to instruct the jury, that if they were satisfied, that it was the intention of Massachusetts to grant, and of the towns of Taunton and Raynham to receive, according to the terms and language of the grant, viz., to the north line of the million acre tract, that they should find accordingly, notwithstanding there mjght be a discrepancy in the evidence, as to the actual running of the line of the said towns of Taunton and Raynham, or a variation, by mistake, in the marking of it. Which instruction the judge refused to give to the jury. And the judge left it to the jury, to determine, from the evidence, whether the south line of the Taunton and Raynham half township was identical with the north line of the million acre tract, stating to the jury, that this was to be determined by ascertaining, whether the two yellow birch trees were, in fact, in that north line. If they were, then their verdict ought to be for the tenant; otherwise it ought to be for the demandant.</p> <p>The jury found, that the said birch trees, referred to as monuments, and descriptive of the said grant, were not in the million acre north line; but were so situated, as to leave the strip or gore aforesaid between the said million acre north line and the south boundary line of the Taunton and Rayn-ham grant, as located on the face of the earth, at the time of the original survey and location thereof.- The defendant produced the original plan of the survey and the laying of the said half township, granted to the towns of Taunton and Raynham, by Thomas McKecknie; and the plaintiff proved other monuments in the said survey, tending to establish the lines of the same, as contended for by him. The tenant moved for a new trial, for misdirection of the judge, at the trial, in matter of law.</p> <p>The motion for the new trial was argued at this term by C. S. Daveis for the tenant, and by Deblois, (with whom was Wm. Pitt Fessenden,) for the demandant.</p> <p>Deblois, (with whom was Win. Pitt Fes-senden,) against the new trial, argued, in substance, as follows:</p> <p>There is a mistake in the description of the grant from the commonwealth of Massachusetts to Taunton and Raynham. dated January 1st, 1S20, inasmuch as the several trees, marked as boundaries, are not found in the north line of the million acre tract; and, there being such a mistake, the actual location on the face of the earth is to govern; and, in the case at bar, the line marked by these monumental trees is to govern, instead of the north line of the million acre tract. The rule of law is, that where land is conveyed by a deed referring to a plan, between which and the original survey, there is a difference in the location of lines and monuments, tlie lines and monuments originally marked are to govern, however they may differ from those represented on the plan. Cherry v. Slade, 3 Murph. S2; Conn v, Penn [Case No. 3,104]; Mageehan v. Lessee of Adams, 2 Bin. 109; Ripley v. Berry, 5 Greenl. 24; Brown v. Gay, 3 Greenl. 126; Esmond v. Tarbox, 7 Greenl. 61; Machias v. Whitney, 4 Shep. [16 Me.] 343; Herbert v. Wise, 3 Call, 239; Dimmitt v. Lashbrook, 2 Dana, 2; Brown v. Gay, 3 Greenl. 126; Pernam v. Wead, 6 Mass. 133; Magoun v. Lapham, 21 Pick, 135. The case of Prost v. Spaulding, 19 Pick. 445, is directly in point; and affirms the principle, by which, we say, the present case is governed. In the present case, however, the facts are stronger to support the principle than in the ease last cited, inasmuch, as in the case at bar, the monuments are set forth in the grant, while, in the case cited, the monuments were not fixed until after the deed was made. See, also, Vose v. Handy, 2 Greenl. 322; Wing v. Burgis, 1 Shep. [13 Me.] Ill; Wendell v. People, 8 Wend. 190. All grants and conveyances are supposed to be made with reference to an actual view of the premises by the parties thereto; and it is, therefore, a general rule, in the construction of grants, that both course and distance must give way to natural or artificial monuments or objects; and courses must be varied, and distances lengthened or shortened, so as to conform to the natural, or ascertained objects or bounds called for by the grant. Wendell v. People, 8 Wend. 190. Parol evidence is admissible to show, that a course and boundary, in a survey and patent, are incorrectly stated, and that they are otherwise upon the ground. Mageehan v. Lessee of Adams, 2 Bin. 109.</p> <p>in support of the motion for a new trial, argued in substance as follows:</p> <p>The first rule of construction requires, that the intention of parties should, if possible, be carried into effect. It is not disputed, and does not admit of question, that the half-township, granted to Taunton and Raynham, should abut upon and adjoin the million acre tract, granted to Bingham. But it is contended, that this should not prevent the introduction of proof by parol evidence, that such intention was not carried into effect, and that the yellow birch tree, referred to in the survey as standing on the line of the million acres, did not, in fact, stand there. The general rule that monuments referred to in a deed may be ascertained and established by parol evidence, is not to be questioned. Even this case affords example and occasion for its application.</p> <p>Parol evidence is to be received to prove the location and previous existence of the million acre grant to Bingham, and the north million acre line. Such testimony does not vary, nor contradict,, the language in the eon-veyance. On the contrary, it only applies it. So, there may be two or more streams, trees, (yellow birch trees,) stakes, or other monuments, each conforming to the description in the deed; and in such case, a latent ambiguity is disclosed, which may be explained by parol evidence. If, in attempting in this ease to designate upon the earth the bounds named in the conveyance, it had been found that there was no such location as the million acres, and no such north line; then so much of the description, though apparently plain and clear, would have been found to be false, and that portion must have been rejected. And parol proof might then have been admitted, to prove the situation of the yellow birch tree; and that proof would not have contradicted any thing, which could be regarded as a part of the deed. When a conveyance declares a fact, as that the land, conveyed or granted, adjoins a river, or a street, or a road, parol evidence cannot be admitted to prove that it does not, unless a latent ambiguity be found, or unless the allegation be found to be false, and is, therefore, rejected. When the monuments referred to in the location of this grant, such as the million acre grant, and the north million acre line, are found to exist, as described, to allow the land granted to be separated from them by parol evidence, would be to give a preference to that which is uncertain, dependent on memory, and subject to change, to that which is clearly expressed, and declared in writing, and is of positive and certain designation. The north line of the million acres, already surveyed, was a monument named in the grant, as where the yellow birch stood; and it appears to have been adopted for the purpose of defining with certainty its position and situation. The yellow birch tree is not to be disturbed or separated from the million acre north line. The language used in the conveyance would be contradicted, and the conveyance itself so far defeated. If there should be two monuments, equally certain and permanent, and alleged to be found at the same point, and it should appear in proof, that both existed, but not at the same point, a false description would be disclosed; and it would become necessary to determine, from other parts of the conveyance, which allegation was false, and which was to be rejected. But where two monuments, one of certain, and one of uncertain location, are stated to adjoin each other, the one of certain location must be regarded as named for the purpose of making the position of the other certain. The grant in this case declaring, that the land granted to Taunton and Raynham does adjoin the million acres, the parol evidence to show, that the yellow birch tree, mentioned as being in that line, was elsewhere, is inadmissible.</p> <p>The following cases were then cited: To the question of construction: Frier v. Jackson, 8 Johns. 396; Preston v. Bowman, 6-"Wheat. [19 U. S.] 580; Blagge v. Hiles [Case No. 1,479]; Thomas v. Hatch [Id. 13,899]; Vosev. Handy, 2 Greenl. 322; Frost v. Spauld-ing, 19 Pick. 445; Wing v. Burgis, 1 Shep. ;[13 Me.] 111. To the question of boundary: Newson v. Pryor’s Lessee, 7 Wheat. [210 U. S.] 7; Preston v. Bowman, 6 Wheat. [19 U. £>.] 580; Loring v. Norton, 8 Greenl. 69; Mc-Iver’s Lessee v. Walker, 9 Cranch [13 U. S.] 173; 4 Wheat. [17 tt. S.] 488.</p>

In admiralty. Libel for “negligent tow-age.” The libel alleged that the barge Mohawk was bound on a voyage from Saginaw to Cleveland, with a cargo of about 200,000 feet of lumber, October 30th, 1S70; that on leaving Saginaw the said barge, with five other barges, was taken in tow by the tug Zouave, to be towed through to Cleveland; that on arriving at Port Austin bay, the weather was so threatening that the master of the tug Zouave, then having the said barge so in tow,…

This was an action for breach of duty, resulting in the loss of the barge Mohawk, by reason of the alleged unlawful desertion of the same during a storm in Lake Huron. On October 30th, 1870, the tug Zouave left Saginaw with, six barges in tow, bound to Cleveland. On arriving off Pointe aux Barques, the weather became rough, and the tow put into Port Austin bay for shelter. Here they found the Clematis.

In bankruptcy. This is a petition by John Clemens under section 2 of the bankrupt act, to have reviewed an order of the district court by which his answer to a petition to show cause why he should not be adjudicated a bankrupt, was held insufficient. The material facts are these: Morris Langs-dorf filed his petition in the district court of the United States against John Clemens, praying that he might be decreed a bankrupt.

[In bankruptcy. Petition by Morris Langs-■dorf that John Clemens be adjudicated a bankrupt. Clemens answered, and showed cause, and the petitioner demurred to the answer as insufficient.]

[Appeal from the district ' court of the United States for the district of Massachusetts. [In admiralty. Libel by Matthew Hunt and others, owners of the pilot boat Hornet, against the brig Clement, for damages caused by collision. There was a decree for libel-lants in the district court (Case No. 2,8S0), and the claimant Paul Mayo appeals.]

In admiralty. This was a cause of collision, promoted by Matthew Hunt and another, owners of the pilot boat Hornet, of Boston, against the brig Clement [Paul Mayo, claimant], for running down and sinking the Hornet, in Boston harbor, in June, 1S54. The libel alleged, that the two vessels were coming into the harbor, by the wind, (which was IV.

At law. This was an action [by Francis M. Clement and Elam IV. Ditterline, against the Phoenix Insurance Company, of Brooklyn, N. Y.], tried before the court without a jury.

This was an action at law [by Francis M. Clement and Elam W. Ditterline] (see [Clement v. Phoenix Ins. Co., Case No. 2,8S1]) on a policy of insurance made by uie defendants [the Phoenix Insurance Company of Brooklyn, New York], insuring $15,600 on 52 hogsheads of tobacco, on transportation by steamer and railroad from Dveus-burgh, Kentucky, to the city of New York.

At law. This was an action of assumpsit [by Clement’s executors] to recover of the defendant [Robert Dickey] the amount of three bills of exchange, drawn by Francis Allyn, as master of the defendant's ship, Frances Henrietta, upon Parish, Agie & Co. of Antwerp, and for goods sold and delivered by the plaintiffs’ testator to Allyn, as such master. The cause was tried at the September term, 1823, and now came before the court on a case made by the plaintiffs.

<p>Case No. 2,886.</p> <p>Smuggling — Forfeiture— Evidence of Informers.</p> <p>Seamen engaged on board a steamship were arrested while engaged in smuggling segars, which they had brought into the port on board of her. The seamen were promised immunity, and an information having been filed against the steamship to forfeit her under the 50th section of the statute of March 2, 1799 (1 Stat. 665), the evidence of the seamen was relied on to secure the forfeiture. It appeared that neither the owners, nor the master, nor any officer of the ship, was engaged in or knew of the smuggling, but all had been solicitous to prevent smuggling. Ecld, that the evidence of the men was sufficient to sustain the action, and the decree required by the statute must follow, but that the course pursued in the matter by the government officials was open to severe criticism. The district attorney was therefore recommended to present the facts to the attorney general, before the signature of the decree.</p>

[In equity. Bill by Newcomb Cleveland against the La Crosse & Milwaukee Railroad' Company, Selah Chamberlain, Moses Knee-land, and others, to subject certain real estate conveyed by the corporation to judgment and execution, and for a conveyance by the defendants Kneeland and Ludington to the purchaser on the executor’s sale.]

This was an action on the case [against William P. Towle], tried by Judge Giles and a jury, to recover damages for the infringement of letters patent [No. 69.G29] for “improvement in suspenders.” granted to plaintiff [Charles H. Cleveland] October 8, 1S(J7.

<p>Case No. 2,889.</p> <p>Attornet cannot Acquire Titee as against Principal — Foreclosure Suit — How Barred-Subsequent Mortgagee not Made Party — Common Law Limitations Regarded in Equity.</p> <p>1. Where an agent, by virtue of a power of attorney, conveys the property of his principal and takes a conveyance to himself, and then mortgages it, such use of the power of attorney would not give him the title as against his principal.</p> <p>2. Though the principal might have repudiated the acts of his attorney, a purchaser under decrees of foreclosure of prior mortgages, being a stranger to the transaction, cannot object to the validity of the mortgage; but he can inquire into its true consideration.</p> <p>3. Usury must be specially pleaded or specifically set forth in the record, and supported by evidence, or the court will not inquire into it.</p> <p>4. The statutory limitation of ten years should be applied to a bill to foreclose filed seventeen years after the mortgage debt was due. the mortgagee having notice that the land had been sold under prior mortgages, and for taxes, and that the purchaser was in possession, claiming title. This is true, although the statute was passed subsequent to the maturity of the mortgage debt.</p> <p>5. Without such a statute equity would -not disturb the possession or title of such a purchaser. he having been in possession fifteen years to the knowledge of the mortgagee. There must be conscience, good faith, and reasonable diligence, to call into action the powers of a court of equity.</p> <p>0. Nor will the fact that the mortgagee was not made a party to the bills foreclosing the prior mortgages, under the circumstances of this case, enable the bill to be sustained.</p> <p>7. Cases under the statute of limitations cited and commented upon.</p> <p>8. Statutes for foreclosure and redemption are rules of_ property, and also laws of limitation; and in the absence of laws limiting proceedings in equity, the limitations as to similar demands at common law are considered as proper rules to be observed in courts of chancery.</p> <p>NOTE [from original report]. That agent cannot acquire title as against principal. Ringo v. Binns, 10 Pet. [35 U. S.] 260; Church v. Marine Ins. Co. [Case No. 2,711]; Galbraith v. Elder, 8 Watts, 81; Barker v. Marine Ins. Co. [Case No. 992]; Hall v. Hallet. 1 Cox. 134; Lees v. Nuttall, 1 Russ. & M. 53; Andrews v. Mowbray, 1 Wils. Exch. 71; Whickcote v. Lawrence. 3 Ves. 740: Ex parte James. 8 Ves. 348; Chalmer v. Bradley. 1 Jac. & W. 59; Whitcomb v. Minchin, 5 Madd. 92; Norris v. Taylor. 49 Ill. 18: Collins v. Case, 23 Wis. 230; Grumley v. Webb, 44 Mo. 444. It is the settled doctrine of courts of equity that great delay of either party, unexplained, in not prosecuting his claims, constitute such laches as forbid the interference of a court of equity. Hough v. Coughlan, 41 Ill. 130. The statute of limitations binds courts of equity as well as law in cases of concurrent jurisdiction: and sometimes, by way of analogy binds equitable titles. Story, J.. in Pratt v. Northam [Case No. 11,376], As to doctrine of courts of equity, as to limitations. laches, and stale claims, see opinion of Clifford, J., in Badger v. Badger [Id. 718]; also, Person v. Sanger [Id. 4,751],</p> <p>[NOTE. On complainant’s appeal the decree of the circuit court, dismissing the bill, was affirmed.</p> <p>[The grounds of affirmation were: That the deed of Reed’s assignee in bankruptcy to Rogers vested in the latter such title as Reed had at the time of the decree adjudicating him a bankrupt. Consquently, Rogers held the relation of mortgagor to the complainant more than 10 years before the suit was brought; also, Rogers held the actual possession in 1S39. when the 10-years statute of limitations was enacted, and the bar was complete in 1849. And, further, that the suit in question, being solely cognizable in equity, was within the fortieth section of that act, and was manifestly barred thereby.</p> <p>PThe court further held that, assuming the bill to be true, no relief could be had as to the other defendants, for, by his purchase of the bankrupt’s title, Rogers took the equity of redemption, and thus cut off whatever claims to the land the other defendants had.</p> <p>[The opinion was delivered by Mr. Justice Catron. Cleveland Ins. Co. v. Reed, 24 How. (65 U. S.) 284.]</p>

<p>Case No. 2,890.</p> <p>Specific Performance of Tainted Contract — Poi,lowing State Decisions — Power of Congress-Post Roads’.</p> <p>[1. A foreign railroad corporation, by agreement with a domestic corporation, secured most of its corporate stock, and the building and control of a railroad totally different from that required by the latter’s charter. Held, that it had no standing in equity to enforce performance of such contract, or to restrain interference with the line of road so built. Following Com. v. Franklin Canal Co., 21 Pa. St. 117.]</p> <p>[2. A decision of a state court declaring a railroad to be different in character, location, and object from that authorized by the charter from the state legislature under which it was constructed, though not followed by a judgment or decree, is binding upon the federal courts within the state.]</p> <p>[3. The power given by the constitution to establish post roads means such roads as are regularly laid out by the authority of the states, or by counties under the laws of the states.]</p> <p>[4. The act of congress making all roads post roads means only such as have charters from the several states, and not such as are built in derogation of law.]</p> <p>[5. Such act does not give to the United States, to a mail contractor, or to the owner of a road the right to an injunction to restrain a threatened injury.]</p>

<p>In bankruptcy.</p>

On May 10, 1S72, [Henry Clews and Theodore S. Fowler, as] Henry Clews & Co., recovered in the federal court for the middle district of Alabama a judgment against the county of Ree, in the state of Alabama, for the sum of $13,722, being the amount due upon certain unpaid coupons which had been attached to certain bonds of said county, issued by it in payment of a subscription to the capital stock of the Eufala, etc., Railroad Company.

<p>Case No. 2,893.</p> <p>Goods in Bonded Warehouse in Possession of U. S. — Deliver?.</p> <p>Goods in a United States bonded warehouse, and on which the duties have not been paid, are in the possession of the United States, and an order by their owner and vendor for their delivery by the warehouseman to the vendee, even though presented to and accepted by the warehouseman, will not be good as a constructive or symbolical delivery, nor constitute a receipt or acceptance of the goods sufficient to-satisfy the statute of frauds.</p> <p>[Cited in Northwestern Mut. Life Ins. Co. v. Elliott, 5 Fed. 228.]</p>

<p>Case No. 2,894.</p> <p>Amendment in Equity.</p> <p>A motion to amend a bill, by adding new parties defendant, after replication filed and the production of evidence, it appearing that the plaintiff was in a position to make the amendment before replication filed, refused.</p>

<p>Pin admiralty. Libels by John Clifton, claimant of the brig Water Witch, against a quantity of cotton, to recover freight, and by William H. Sheldon, and by John W. Brower and others, claimants of the cotton, against the brig for damages to the same. The suits were heard together.]</p>

At law. This was a habeas corpus issued ou the petition of John Edward Cline, a private soldier in the array of the United States, held therein by virtue of his enlistment. The petition set forth that, at the time of his enlistment, Cline was a minor, and enlisted without the consent of his parents.

<p>Case No. 2,898.</p> <p>Admiualtt JnnisnicTioM — SnirwniGHT’s Wages.</p> <p>A shipwright cannot sue in the admiralty for his contract wages for building a ship or vessel designed for navigation on the high seas.</p> <p>[Cited in Shrewsbury v. The Two Friends, Case No. 12,819; Pritchard v. The Lady Horatia, Id. Í1.43S; Levering v. Bank of Columbia, id. 8,287; Ramsay v. Allegre, 12 Wheat. (25 U. S.) 61S, 619; The Stephen Allen, Case No. 13,361; Bains v. The James and Catherine, Id. 750; The Draco, Id. 4,-057; U. S. v. New Bedford Bridge. Id. 15,- . 807; Waring v. Clarke, 5 How. (46 U. S.) 4S0; Jackson v. The Magnolia, 20 How. (61 U. S.) 331; People’s Ferry Co. v. Beers, Id. 402: Cunningham v. Hall, Case No. 3,4S1. Distinguished in Zane v. The President. Id. 1S.201. Disapproved in The Richard Bus-teed, Id. 11,764.]</p>

The petition was filed on the 17th of March',. 1S75 [by G. D. W. Clinton, and others]. It charged sundry acts of bankruptcy [against D. C. Mayo]. Amongst those specified was. the confession of a judgment for twenty-four thousand seven hundred and sixty-three dollars to M. E. McDowell & Co., of Philadelphia, on the 23d of January, 1S75.

This was a bill in equity, filed by [Richard C.] Gray on the 2d day of March, 1S(51 [against the Chicago, Iowa and Nebraska Railroad Company and others], complaining of a bridge across the Mississippi river, on the ground that it presents a serious obstruction to the navigation of that river, and asking its abatement as a nuisance.

[At law. Action by Elizabeth Clippingor. administratrix of the estate of John Grestead, against the Missouri Yalley Life Insurance Company, to recover on a policy of insurance.) Motion by plaintiff to dismiss and remand to state court.

<p>Case No. 2,902.</p> <p>FORFEITURE FOR FRAUDULENT IMPORTATION.</p>

In admiralty. Libels for salvage and to enforce a lien upon the vessel and cargo for money loaned the master to relieve his vessel and her cargo from distress. The owners appeared, claimed the vessel and cargo, and answered that the salvage claimed was exorbitant, and that the loan was unnecessary and illegal, and that no lien existed upon the vessel or cargo to secure its payment.

[In equity. Bill by Theodore Clough against the Gilbert & Barker Manufacturing Company and others for alleged infringement of letters patent. [The following is a drawing of the Clough burner:] [[Image here]]

[Appeal from the district court of the United States for the district of Massachusetts.] Libel for wages [by Thomas Cloutman] as second mate of the ship America, in perso-nam, against [George R. Tunison] the master of the ship. The district court decreed in favor of the libellant

The tug-boat Clover was engaged to tow the bark Sarnia from Clark’s wharf in East Boston to another part of the same harbor. The bark was not fully rigged nor manned, and the whole movement was conducted by the master of the tug-boat, and no question was made that if either the tug or the bark was liable for the consequences of the collision which ensued, it was the former.

This bill was filed by the complainant [William B. Clum], who claimed to be the grantee under Professor Morse, of a certain sectional interest in the state of Massachusetts, under the extended… Held: esteemed, and owned as the property of each in the ratio of his property in the original invention; and all letters-patent that shall be obtained therefor of any government, shall be in that ratio, the property of each, and of his heirs and assignees, respectively.

<p>Case No. 3,908a.</p> <p>Tenancy in Common of Mineral Land — Accounting.</p> <p>[Where a tenant in common of mineral lands exercises his undoubted right to take the common property, and has no other means of obtaining his just share than by taking at the same time the share of his cotenant, the value of the ore in place furnishes the just basis of account.]</p> <p>[NOTE. This case is reported in 4 Dill. 469, as a note to Bly v. U. S., Case No. 1,581.]</p>

<p>[In equity. Bill by William B. Clum and others against Charles H. Brewer and others.]</p>

<p>[At law. Action by Clute and Mead against Goodell.]</p>

At law. This was an action to recover damages for an injury received by the plaintiff [William S. Cl.vmer] in December, 1864, through the alleged negligence of the servants of the defendants [the Central Railroad Company of New Jersey], while in a car attached to a through stock train upon the track of the defendants’ railroad. The train was made up at Harrisburg, Pennsylvania, and was on its way to the city of New York.

<p>Case No. 2,913.</p> <p>Collision ix Narrow Channel — Overtaking Vessel — Rules op Navigation — Choice between Doubtful Measures — Testimony op Experts.</p> <p>1. Where the C. and the V., two yachts of a squadron, heating out of New Bedford harbor, wind S. S. E., weather clear and all vessels in plain sight, being at one time on parallel courses about a hundred and forty feet apart and approaching a long tow crossing their then courses, went about so near together that the jib-boom of the one astern as she forged ahead caught the outer leach of the main-sail of the other then crossing her bows and just filling away on the other tack, and some slight damage was done, for which suit is brought: Meld, that the C. was the overtaking vessel under rule 22 (Rev. St. art. 17, § 4233;, but nevertheless it was the duty of the V., under the circumstances, to terminate her port tack in time to enable the C. to tack between the tow and herself, whether or not she was hailed so to do.</p> <p>2. That the C. was justified in holding her reach, relying upon the Y.’s shortening her tack if necessary, provided that she herself went as near the tow before tacking as was prudent for her to go.</p> <p>3. That upon the evidence the C. might have gone much nearer the tow in safety, and as only six feet nearer was required to have enabled the yachts to pass each other clear, she must be held responsible for the collision and damage, and the Y., having left her room enough, must be held not in fault.</p> <p>4. That when of two doubtful measures to be decided on to avoid a collision, the one taken carries the vessel so nearly clear as six feet, it cannot be imputed to her as a fault that she did not take the other course. What a yacht is willing to do for the sake of winning a wager, she is, in a case of necessity, bound to do to avoid a collision.</p> <p>5. Semble, that even where a case is governed by statutory sailing rules, the question being whether the circumstances arc special and render a departure from the rule necessary, the testimony of practical seamen as experts may be taken.</p>

<p>Case No. 2,916.</p> <p>Decree against Administrators — Enforcement —Accounting—Power of Commissioner — Taking up Report — Practice —Opening Decree.</p> <p>1. A joint decree was rendered against T. M. and E. M. administrators, with the will annexed of H. M., and his principal devisees and legatees, for a considerable sum of money, being the amount of unadministered assets in their hands. Before this decree was satisfied T. M. died, having appointed his co-administrator, his own executor, who qualified as such. The plaintiff filed her bill, to revive the decree against E. M., both in his character of surviving administrator of H. M., and as executor of T. M. E. M. also died, without answering the plaintiff’s bill, and a bill of re-vivor, was filed against his administrator, and also against the administrator, de bonis non, of T. M. These last defendants having answered this bill, the court directed them to settle their accounts of tlieir administration of the estates of E. M. and T. M. respectively, and also of the administration of E. M. and T. INI. of the estate of H. M., but did not require an account of the administration, of the estate of T. M., by E. M. his executor. The commissioner, after due notice to the defendants, proceeded to execute the decretal order of the court, the defendants failing to attend, and reported the proportions, by which the original decree ought to be charged on the estates of T. M, and E. M. At the same term to which this report was made, the report was affirmed, and the matter thereof decreed, no counsel appearing for the defendants. Subsequently R. B. one of the administrators, de bonis non, of T. M., applied for an injunction to stay proceedings under the last mentioned decree, so far as it affected the estate of T. M., assigning various errors in the proceedings above recited. and praying that the decree might be opened, and the alleged errors corrected. The court held: That there was no error in failing to direct an account of the administration of E. M., of the estate of T. M., such an account not being called for by plaintiff or defendants. Although in a suit against the representatives of an original debtor, the subject may be pursued further than those representatives, the plaintiff is not bound to do so. If E. M., as executor of T. M., is indebted to the estate of his testator, he is not distinguishable, so far as respects the claim of the plaintiff, from any other debtor.</p> <p>2. That the commissioner, in proceeding to act ex-parte, on the defendants failing to appear, adopted a course of very doubtful propriety. At all events, the defendants would, on motion, he allowed to repair their fault, especially if their non-attendance could be excused.</p> <p>3. That there is no positive rule in this court, forbidding a report to be considered at the term to which it is made. The general practice has been, to permit a report, in any degree complex, to lie for a second term, for consideration and exception, on the motion of one of the parties. In plain cases, the report is generally taken up at the first term.</p> <p>4. That the two administrators of H. M., being also his devisees and legatees, and having acted together in the collection, and payment of moneys, it is presumable that they arranged between themselves, their respective claims upon the estate of their testator, and (in the absence of testimony to the contrary) that each retained in his own hands, an equal share of the estate. And as they, knowing the state of their own affairs, permitted a decree to be rendered jointly against them, the just inference is, that each was bound for an equal portion of that decree. . If either had paid off the whole of the decree, he, so paying, might have called on the other for a moiety of the decree so paid. And the subsequent decree of this court ought, therefore, to have been against the representatives of each, in the first instance, .for a moiety only.</p> <p>5. That this decree was not a final decree, so as to preclude the court from opening it to let in its real merits, which may have been excluded by any excusable misapprehension of the party, or error, or irregularity of the court.</p> <p>[NOTE. The commissioner reported, and a •decree was pronounced directing Crittenden, ns administrator, to pay the sum of $3,731.32 with interest, out of the assets in his hands, and reserved its decision as to the ultimate responsibility of the parties. Case No. 2.917. For subsequent proceedings herein, see Case No. 2,918.]</p>

In bankruptcy. This was a petition by B. Manville & Co., and other creditors of the bankrupt, seeking tc establish a trust fund, and asking payment in full of their claims from the money in the hands of the assignee.

This is the same case reported in 1 Brock. 529 [Case No. 2,916], quod vide. In pursuance of the decree of the 4th of June, 1S21, the commissioner made his report, and the ■court, reserving to a future day its decision, ■on the ultimate responsibility of the parties, in December, 1S21, rendered an interlocutory ■decree, directing the administrator of Elliott Muse, to pay the sum of $3731.32 to the plaintiff, out of the assets of Elliott Muse's estate, unadministered by him.

<p>Case No. 2,918.</p> <p>Liability or Executok — Piiioiuty of Debt op Decedent— Equitable Tkaxsfkk of Decked.</p> <p>1.There having been a joint decree in 1S11, against E. M. and T. M., administrators of H. M., and one of the said administrators, T. M., having died, the survivor, E. M., was appointed his executor. To secure to the plaintiff in the decree the payment thereof, the surviving administrator, E. M., executed in 1S13, a deed of trust, or mortgage, on a tract of land, which deed the attorney of the plaintiff accepted, and acknowledged under his hand, that the said E. M. was entitled to the benefit of the decree. The said deed, though held by the plaintiff’s attorney, was never recorded, nor enforced by him. but on the contrary, the said E. M. sold the land, and he then died. On the books of E. M., as executor of T. M.. were found two entries, by which he gave credit to himself, as such executor, for T. M.’s proportion of that decree, which entries amount to an admission, that the estate was no further liable, and that he, E. M., should pay the residue of the decree. Held: That as E. M. sold the land, and did not account for the proceeds, he became liable-to the plaintiff in the same sum, as if the transaction had never taken place.</p> <p>2. As to the liability of the estate of T. M. to the plaintiff. A decree, though not assignable at law, is yet transferable for valuable consideration, and a court of equity will support the transfer. If, therefore, the estate of T. M. had been represented by any other person than E. M., and such representative had, without knowledge of the fraudulent sale of the land, paid to E. M., the transferee of the decree, his proportion of the decree, the court would have sustained the payment: but as no-money was really paid to the creditor, by the representative of T. M., and as E. M., who committed the fraud, was the executor of T. M., the creditor ought not (notwithstanding the entry7 of the credit aforesaid i, to lose his recourse against the estate of T. M. But, as it was ascertained by the report of a commissioner. that E. M., as executor of T. M., was indebted to the estate of the latter, in the full sum claimed by the plaintiff, from the estate of T. M.. and as the debt so due from the estate of E. M., to that of T. M., is one of the first dignity, under the act of assembly, the plaintiff should stand in the place of T. M.’s representative, and be considered as a creditor of the highest dignity, and obtain a decree directly against the representative of E. M., for the full amount due from that estate, to T. M.’s estate.</p> <p>3. As to the balance (over and above the aforesaid sum due to T. M.’s estate) of the decree of 1811, now to be decreed against the representative of E. M. The effect of the agreement between the attorney of the plaintiff, (with the concurrence of his agent, or attorney in fact,) was to transfer the decree to E. M., and to put the mortgage as a substitute for the decree. The plaintiff could not, thereafter, proceed against either E. M., or T. M., on the decree, but on the mortgage alone. The debt, therefore, lost its dignity, and became as between the creditor, and representatives of E. M., a debt by specialty alone, and is to be postponed, in decreeing against those representatives, to other debts of greater dignity than specialties.</p>

In the course of proceedings in this case, the question arose upon the setting apart, by the assignee, property under the exemption clause of the bankrupt law, and came before the judge for his decision.

In equity. On the 12th November, 1877, the defendant company filed its petition in this court, of which the following is the material part: Sour petitioner, the Globe Mutual Life Insurance Company, a corporation duly incorporated by the laws of the state of New York, would respectfully represent to the court that, on the 3d of August, in the year 1S77.

At law. Assumpsit [by Samuel C. Cobb against Hannibal Hamlin] to recover certain duties paid under protest. Facts agreed, of which the following are the material ones: — Five invoices of lemons and oranges packed in boxes were imported from Palermo, Sicily, into the port of Boston, and ■were duly entered for consumption or warehousing by the plaintiff, as consignee of the respective invoices.

This was a bill in equity praying for a set-off. The case, as it appeared from the bill and answer, was as follows: “The respondents [Henry Hnydoek & Son] recovered judgment before this court, at this term, against the complainant [Judethan Cobb] in a suit in the name of Stephen Howard, brought on a promissory note for $1,016.0S, executed by the complainant and Aslibel Stanley, dated the 24th of February, 1796, payable to Howard on the 1st of October following, with interest…

[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, to recover the sum of $1,500 and interest, for the breach of a contract, made at New York, to convey ten passengers in the steamship New Orleans from Panama to San Francisco, the vessel to leave on her trip in the month of April, 1850.

<p>[In admiralty. Libel by William Cobb against John T. Howard and others for breach of a passenger contract.]</p>

At law. On the lith of May, 1SC7, Coblens sued Abel in the circuit court of the state of Missouri, for St. Louis county, in respect of a certain illegal assessment, as he alleged, made and collected by the defendant as collector of the internal revenue of the United States.

[In admiralty. Libel in personam by Wil- i iiam Cochran and others, crew of the Brit- | ish ship Colchester, against Allen McLean, her master, for wages.]

At law. This was a suit [against Samuel Swartout, collector of the port of New York] to recover the amount of certain duties paid by the plaintiff [Rupert J. Cochrane] on a quantity of coke imported from England, and on which the collector had charged a duty of 0 cents a bushel, the plaintiff contending that the article was free, as non-enumerated in the tariff.

[Appeal from commissioner of patents.] Interference. The Commissioner: 1. There is no distinction between an “invention” and an “improvement,” except in degree. If the alleged improvement be ,an improvement within the meaning of the law, it is indubitably the subject of a patent; but if it be an improvement simply because the screw works better than a pinion or a band, then it is not necessarily the subject of a patent.

<p>[At law. Action by John H. Cocke, as-signee of Charles Fisher, against James W. Henson, Benjamin Johnson, and Ambrose H. Sevier.]</p> <p>Motion to stay proceedings. Before ESK-RIDGE and CROSS, Judges.</p>

<p>[At law. Action by James B. Kendall, as-signee of John Brown, against John H. Cocke. There was judgment for plaintiff, and defendant brings error.]</p>

<p>Case No. 2,930.</p> <p>Depositions—Practice—Waivep. op Exceptions ■ to Interrogatories. j</p> <p>1. In cases of disagreement between parties in regard to interrogatories and cross interrogatories, they should be referred to a master in chancery to be settled by him, subject to the ultimate review of the court upon an appeal from such report.</p> <p>[Cited in Zunkel v. Litchfield, 21 Fed. T97.]</p> <p>2. Exceptions to interrogatories or cross interrogatories should be propounded as objections. before the commission issues, or they will be deemed waived.</p> <p>[NOTE. Ou the trial the jury rendered a verdict for plaintiffs. Case No. 2,931.]</p>

At law. This was an action of assumpsit, brought by the house of [Robert] Cocker & Sons, extensive manufacturers of machinery and hardware in England, against the Franklin Hemp and Bagging Company, a corporation formerly engaged in the manufacture of cotton bagging in Boston, to recover damages, upon the refusal of defendants to accept certain copper gill stocks and steel pins manufactured by the plaintiffs, upon a contract in writing made by them with the defendants, in…

At law. Assumpsit [by Robert Cocker & Co. against the Franklin Hemp & Flax Manufacturing Company]. There were several counts in the declaration. (1.) On an account annexed, for $2,157.97. (2.) Money counts. (3.) Special count, for not accepting certain articles (gill pins), made by the plaintiffs at the request of the defendants. Plea, general issue.

<p>Case No. 2,934.</p> <p>Alien Enemy — Right to Sue in Enf.mt Country—Principal and Agent — Execution Sale —Promise to Reconvet.</p> <p>1. An alien enemy may sue and be sued in the courts of the enemy country.</p> <p>2. The authority of an agent is not affected by war, and proceedings had against an_ agent during a state of war, to which the principal could not answer by reason of the existence of war, are valid, and hold the principal.</p> <p>[3. An oral promise by a purchaser on execution sale to reconvey to the debtor, upon reimbursement of his advances and charges, is not enforceable in equity.]</p> <p>[See note at end of case.]</p> <p>[NOTE. On appeal by complainant, the supreme court reversed the decree of the circuit court, and remanded the case, on the ground, as set forth in the opinion of Mr. Justice Davis, that Izard, the tenant of complainant, obtained possession of the property by unfair practices which prevented intending purchasers from bidding at the sale, and enabled him to acquire the property at a sum hardly equal to its yearly rental value, and that the-failure of complainant to apply summarily to set aside the sale, and for a resale, did not forfeit his right to redress in equity according to the prayer of the bill. Cocks v. Izard, 7 'Wall. (74 TJ. S.) 559.]</p>

<p>[In the matter of John P. Cocks, a bankrupt.]</p>

<p>Case No. 2,935.</p> <p>Guahanty — Negotiability—Fixation of Liability — Ixtekest.</p> <p>1.The trustees and managers of the Vermont Central Railroad Company and the Vermont and Canada Railroad Company issued notes, to the amount of $1.000,000, in sums of $1.000 each, by which they, as trustees and managers only, reciting that it was in accordance with the votes of the stockholders of the two companies, and by virtue of a decree of the court of chancery of the state of Vermont and of a special act of the legislature of Vermont, promised to pay to the order of the defendant the sum. 20 years from date, with interest at the rate of 8 por cent, per annum payable semiannually, at their office in Boston, on presentation of the interest coupons attached. The notes were signed by the trustees and managers, as such, and interest coupons, payable to bearer, for each instalment of interest, were attached. On each note was this endorsement, signed by i e treasurer of the defendant, under its seal: ‘■For value received, the Vermont and Canada Railroad Company hereby guarantee the payment of the within note, principal and interest, according to its tenor, and order the contents thereof to be paid to the bearer.” The notes were put on the market, and C. purchased 50 of them at par and %, without notice in regard to them, beyond the general knowledge, open to all, of the location and situation of the railroads, and what appeared upon, and would be suggested by, the face of the instrument. C. sued the defendant to recover the amount of 2 coupons on each of the 50 bonds. The defendant admitted the “demand, notices and protest of said coupons, as they fell due.” Hcltl: The defendant became liable upon the notes, as guarantor, to any one to whom the guaranty would run and who would be entitled to sue upon it.</p> <p>2. Whether the guaranty was negotiable, quaere.</p> <p>3. The endorsement was a contract of endorsement, running to the bearer.</p> <p>4. The admission as to demand, notices and protest, is sufficient to show that the liability of the defendant as endorser became fixed.</p> <p>5. Interest at the rate of 7 per cent, per an-num, and no more, can be recovered on the notes, with interest at that rate, on such interest, as damages, from the time when payment should have been made.</p> <p>[NOTE. Defendant subsequently moved for a now trial, and the motion was denied. Case No. 2,936.]</p>

<p>[This was an action of assumpsit by Robert Codman and Henry A. Johnson against the Vermont & Canada Railroad Company.]</p>

This was an action on the case against [Charles B.F. Adams] a notary public for negligently omitting to give due notice to Theodore Otid, ah indorser of a note which had been committed to the notary to be protested. The note was signed by William Blanchard, and payable to Theodore Otis or order, and indorsed by him, by the plaintiff [J. B. Cod-rington], and by F. W. Edmands, cashier.

This case was argued on a plea in abatement at the last term; a respondeat ouster was ordered; and the case continued to this term for trial on the merits.

Action at law to recover damages from the defendant [the Central Pacific Railroad Company] for ejecting the plaintiff [H. A. Cody] from its cars, upon the following state of facts: August 10, 1S75, the Baltimore and Ohio Railroad Company issued, from its office in the city of Baltimore, to one Michel Meur, a ticket or contract for a passage to San Francisco, Cal., in the words and figures following: “Issued by the Baltimore and Ohio Railroad Company.

<p>Case No. 2,941.</p> <p>Action for Breach of Covenant — Pleading— Specific Performance.</p> <p>1. Where a covenant goes only to a part of the consideration on both sides, and a breach of it may be paid for in damages, it is an independent covenant, and an action can be maintained for a breach of the covenant, on the part of the defendant, without averring performance in the declaration.</p> <p>2. Where the plaintiff’s covenants, which form the consideration, be dependent, yet if part of the consideration be accepted and enjoyed by the defendant, and the plaintiff have no other remedy than on the covenant, and the breach on the part of the plaintiff can be compensated for in damages, the plaintiff may recover without alleging performance of the residue.</p> <p>3. Courts of equity are still more liberal in their interpretation of contracts, allowing a specific performance of a contract, sometimes to be enforced at the suit of a party who has not punctually performed the contract on his own part, but has been in default, where the default on his part is such as admits of compensation.</p>

<p>Case Wo. 2,942.</p> <p>Railroad Mortgage — Subsequently Acquired Property — Construction of Charter — Lien for Rolling Stock Furnished — Adjustment of Liens.</p> <p>1. A mortgage given on the entire property of a railroad, including future receipts for transportation, with an agreement that property on the road subsequently acquired, shall be bound, and a conveyance of it be duly executed, gives an equitable lien on property subsequently acquired, to the bondholders of bonds secured by the mortgage.</p> <p>[See note at end of ease.]</p> <p>2. A charter must be construed according to the intent of the legislature, if such intent can be ascertained, by the language used.</p> <p>[See note at end of ease.]</p> <p>3. A person who constructs cars, or other rolling stock, for a railroad, if he deliver the stock to the company, without any special provision to receive the payment, can claim no lien on the work. He may effect this lien while the work is in his possession. And if he obtain a judgment against the company for the work, an execution cannot be levied on the rolling stock on which a former lien exists.</p> <p>[See note at end of ease.]</p> <p>4. Where there are liens on the property of a railroad company, the liens must be adjusted in chancery, where each claimant shall receive his proportionate share of the proceeds. The appointment of a receiver is generally ruinous, and a sale of such property should not be made, under a reasonable prospect of payment, by a faithful application of the profits of the road.</p> <p>[See note at end of case.]</p> <p>[NOTE. The defendants Pennock & Hart appealed to the supreme court, where the decree of the circuit court was affirmed.</p> <p>[The court (Mr. Justice Nelson delivering the opinion) substantially held that complainant’s mortgage attached to the future acquisitions, as therein described, from the time they came into existence: that, the mortgage being a valid and effective security for the bondholders of prior date, they had the superior equity to have the property in question applied to the discharge of the bonds; that the individual bondholders under the second mortgage were properly restrained from proceeding at law to collect their debt, as such a course would not only give them a preference over their associates, but would also have the effect to prejudice the superior equity of the first mortgage bondholders; and that the extension of the road to the Ohio Central road at Zanesville was fairly within the terms of the charter requiring the connection with the Ohio & Pennsylvania Railroad, “and any other railroad running in the direction of Columbus.” Pennock v. Coe, 23 How. (64 U. S.) 117.]</p>

<p>[At law. Action by Israel Coe against Rankin and Prince.]</p>

<p>Case No. 2,943a.</p> <p>Amendment op Judgment.</p> <p>Amendment made by adding the name of another person, four years after the rendition of judgment.</p>

<p>Case No. 2,944.</p> <p>Maritime Contract — Lien by State Statute.</p> <p>1. A contract by parties, resident in New York, with a citizen of North Carolina, to furnish labor, materials, and stores for building and equipping a vessel in North Carolina is not a maritime contract within the admiralty jurisdiction of the federal courts, and no lien is thereby created which can be enforced in rem.</p> <p>[Cited in Whitlock v. The Thales, Case No. 17.578; Smith v. The Royal George, Id. 13,102.]</p> <p>2. It seems that no enactment by a state legislature can be administered as the foundation of any right or remedy in admiralty. It is therefore immaterial whether any lien is given by a state law, or whether such law is of any force out of the limits of such state.</p>

<p>Case 3STo. 2,946.</p> <p>Infringement of Trade-Mark — Injunction— Damages.</p> <p>1.Where a label or mark of another is used by an individual, with a fraudulent intent to recommend to purchasers an article similar in appearance to one favorably known in the market, an injunction will be granted.</p> <p>[Cited in Walton v. Crowley, Case No. 17,-133; Hostetter v. Vowinkle, Id. 6,714.]</p> <p>2. In commercial transactions, good faith is required. And where a deception is attempted to be practiced, by recommending a spurious article as genuine, to the injury of a party, chancery will restrain the aggressor.</p> <p>3. In such a case at law, nominal damages will be given where no specific injury has been proved.</p> <p>4. In such cases, the inquiry is, whether the label or mark is so assimilated to the label or mark of the complainant, as to deceive purchasers. And it seems not to be essential that there should be a fraudulent intent proved.</p> <p>[Cited in Hostetter v. Vowinkle, Case No. 6,714.]</p> <p>5. This principle as well applies for the protection of foreigners as citizens.</p> <p>[NOTE. On the final hearing the court apparently refused to grant an injunction. See the denial of an application for rehearing, Case No. 2,947]</p>

[Bill to enjoin infringement of a trademark. Complainant obtained a preliminary injunction (Case No. 2,946), which was apparently subsequently dissolved, and a motion is now made for a rehearing.]

<p>Case No. 2,948.</p> <p>Whaling Voyage — Forfeiture op Lay by Desertion — Admiralty—Practice — Pleading — Verification — New Matter on Appeal.</p> <p>1.A lay or share in the proceeds or catchings of a whaling voyage does not create a partnership in the profits of the voyage, but is in the nature of seamen’s wages, and governed by the same rules.</p> <p>[Cited in Joy v. Allen, Case No. 7,552; Macy v. De Wolf, Id. 8,933.]</p> <p>2. By the general maritime law, desertion is an unauthorized absence from the ship, with an intention not to return, and it creates a forfeiture of wages.</p> <p>3. The statute of the United States [Act 1790; 1 Stat. 133] declaring any unauthorized absence of a seaman from his ship for forty-eight hours to be desertion, applies to all cases, where the seaman does not return within such time, although he may have been prevented by the sailing of the ship. For the ship is not bound to wait for him, but he is bound to rejoin the ship within that period, suo periculo.</p> <p>[Cited in The John Martin, Case No. 7.357; Welcome v. The Tose mite, 18 Fed. 384.]</p> <p>4. In the present case, it was held, that the circumstances showed, that the desertion by the plaintiff was the result of a previous and deliberate intention to desert; and at all events, an opportunity having been offered to him to rejoin his ship within the forty-eight hours, .that his refusal to do so constituted a desertion, and he had thereby forfeited his wages.</p> <p>5. The only cases where desertion does not carry with it a forfeiture of wages, are cases having mitigating circumstances, where the party deserting has a strong excuse, founded on gross misconduct or harsh usage towards him; or where, having a locus poenitentiae, he has acknowledged his fault, and offered to return to his duty within a reasonable time, and his services have been rejected; or cases of a similar nature.</p> <p>[Explained in Swain v. Holland, Case No. 13,061.]</p> <p>6. The doctrine in case of Cloutman v. Tuni-son [Case No. 2.907], affirmed.</p> <p>7. In eases of appeal from the district court, this court is very cautious in admitting new matters of defence or allegation to be introduced, where the facts, on which they rest, are not new or newly discovered, but were perfectly known at or before the hearing in the district court.</p> <p>[Cited in The Mabey, 10 Wall. (77 U. S.l 420; The Saunders, 23 Fed. 304; The Venezuela, 3 C. C. A. 319, 52 Fed. 875; Re Hawkins, 147 U. S. 4S6. 13 Sup. Ct. 521.]</p> <p>8. The answer to a libel should be sworn to by the respondent, but the libellant is not bound to swear to the libel.</p> <p>[Cited in The J. R. Hoyle, Case No. 7,557.]</p> <p>9. A special replication by the libellant under oath is not admissible, unless it be demanded by the respondents, or ordered by the court, and then it is in the nature of a cross-bill or reconventio of the civil law.</p> <p>[Cited in The Atlantic, Case No. 620.]</p>

[Appeal from the district court of the United States for the district of New Hampshire.] This was an appeal in admiralty.

In equity. This was a final hearing, on pleadings and proofs, of a suit [against James B. Ogden and Lucius Woodruff] founded on reissued letters patent of the United States [No. 1,390] granted to Charles A. Miller, assignee of William S. Kirltham, the inventor, January 27th, 1803, for an improvement in locks and latches, and assigned to the plaintiff [Paul C. Coffin]. The original letters patent [No. 32,521] were granted to Kirkliam, June 11th, 1801.

<p>Case No. 2,951.</p> <p>Seamen’s Wages — Desertion bt Minor — Right of Father — Measure of Damages.</p> <p>1. Where a minor, with the assent and allowance of his father, signed shipping articles for a whaling voyage, in the course of which, after arriving at full age. he deserted, it was held that, at the common law in Massachusetts, such desertion did not work a forfeiture of the father’s right to his wages during minority.</p> <p>2. The effect of the father’s assent is to make it a contract with himself to the extent of his legal interest, namely, the term of minority, after which neither father nor son is bound.</p> <p>8. The measure of damages in such case is the value of the son’s proportion of the oil taken during his minority.</p>

<p>Case No. 2,952.</p> <p>Shipment op Minor — Desertion after Minority — Forfeiture of Wages — Bight of Father —Goahantt.</p> <p>1. A father shipped his son, a minor, under the age of seventeen, by a contract in the common form, for a whaling voyage to the Pacific ocean and elsewhere. The son faithfully did duty during the whole period of his minority, and afterwards deserted before the termination of! the voyage.</p> <p>2. Held, that the desertion did not forfeit the wages of the son during his minority, which, were due to the father. The obligations of the father’s contract terminated with his son’s minority, and his responsibility for his acts ceased! at the same time.</p> <p>3. A simple promise, by one, of the act of another person who is sui juris is void. But a contract of guaranty or suretyship for the act of another, if on a sufficient consideration, is-valid.</p> <p>4. In this case no such guaranty being proved^, it could not be presumed.</p> <p>[NOTE. Respondent appealed to the circuit court, where the decree herein was affirmed. Case No.- 2,951.]</p>

<p>In February, 1870, the libellant [F. B. Coffin] was shipped at Boston on the ship Fearless, belonging to the respondents [W. F. Weld and others], for a voyage to Batavia and other ports in the East Indies, and back to the United States. He was discharged at Batavia in May, and was sent thence to Singapore, where he took service on board another ship, at a less rate of wages, and arrived home in November, 1870. The Fearless reached this port in January, 1871. The libel-lant alleged that he was discharged by the consul at Batavia on account of ill-usage received from the master and mate. The answer insisted that eight of the men complained to the consul of the mate’s harsh and cruel conduct, and made no charges against the master; and that it was agreed, upon the suggestion of the consul, that the mate should be discharged, and the men should return to duty; that the mate was discharged, and left the ship; but the men, on being required to get the ship under weigh, refused to do any duty, and were discharged by the consul for disobedience. The evidence tended to show that the original ship’s company consisted of a master, two mates, a cook, a steward, a carpenter, and sixteen men before the mast; that the ship arrived at Batavia in May, and eight of the men insisted on seeing the consul, and complained to him of ill-usage, and that the others afterwards made a similar complaint. The consul testified, that, according to the best of his recollection, the mate only was accused of cruelty, and not the master; and he further said, that it was agreed that the first mate, who was the cause of the difficulty, should be discharged, that the captain should give an agreement in writing that the crew should be well treated during the further prosecution of the voyage to Singapore, and the men should return to duty; that these terms were fully carried out by himself and the master, but the eight men still refused duty, and were discharged by him for disobedience. Whether the complaint was solely against the mate, or included the master, and whether the libellant agreed to the compromise, were disputed points upon the evidence. It was proved that the men returned to the vessel either voluntarily or through fear or coercion, and that the vessel was ready for sea, and the order was given to weigh anchor; that the mate was then on board, and in his working-dress, and witnesses on both sides said that they inferred he had not been discharged. It was at this time the eight men refused duty. The mate afterwards left the ship, but when, or under what circumstances, did not appear. The second mate had already been discharged, with his own consent, and a man had been promoted to his place. The remaining seven men made the trip to Singapore, and were all discharged by the consul there; and for cause of discharge the consul entered on the articles against the name of each man some act of cruelty or some threats on the part of the mate. The mate was reshipped at the same port, with a new crew.</p>